IN THE HIGH COURT OF SINDH

CIRCUIT COURT LARKANA

 

 

Civil Revision S - 08 of 2017

 

 

Rajib Ali Abbasi

         vs.

Federation of Pakistan and Others

 

 

For the Applicant:                     Mr. Irfan Badar Abbasi, Advocate.

 

For the Respondents:                   Mr. Nisar Ahmed G. Abro, DAG along with

                                                Mr. Abdul Waheed Abbasi, Assistant Director

                                                NADRA, Larkana.

 

Date of Hearing:                       01.10.2018

 

Date of Announcement:             01.10.2018

 

 

J U D G M E N T

 

Agha Faisal, J. Through the present proceedings, the applicant has assailed the  judgment dated 14.11.2016 delivered in  Civil Appeal 09 of 2016 by the Court of learned Additional District Judge-III, Larkana (“Impugned Judgment”).

 

2.            Mr. Irfan Badar Abbasi, Learned counsel for the applicant, submitted that the age and father’s name of the applicant were wrongly mentioned in the national identity card of the applicant and same was the subject matter of F.C Suit No.260 of 2015 filed before the learned II-Senior Civil Judge, Larkana. The said suit was dismissed vide judgment dated 02-12-2015 (“Trial Court Judgment”) and the applicant preferred appeal there-against, which was also decided against the present applicant vide the Impugned Judgment. It was contended that the Impugned Judgment has been rendered by not treating the evidence in its proper perspective hence the same suffers from material irregularities. Learned counsel relied upon the judgment in the case of Imran Khan vs. Federation of Pakistan & Others reported as 2016 YLR 323  (“Imran Khan”) and Mrs. Roquaiya Farid vs. Federation of Pakistan & Another reported as 2017 CLC 1366 (“Roquaiya Farid”) in order to bulwark his arguments.

 

3.            Mr. Nisar Ahmed G. Abro, learned D.A.G appearing on behalf of respondents supported the Impugned Judgment and stated that no case for interference therewith has been made out by the present applicant. Learned D.A.G demonstrated from the Trial Court Judgment that the evidential aspect was properly discussed and decided therein and the said judgment was also upheld by the Impugned Judgment by way of cogent reasoning. It was thus contended that the present proceedings may be dismissed with costs.

 

4.            It is within the contemplation of this Court that the learned appellate Court was final arbitrator of the factual controversy and that the scope of this forum is circumscribed by the provision of Section115, C.P.C. It is thus the duty of this Court to evaluate whether any infirmity is apparent in the Impugned Judgment when the same is evaluated upon the anvil of the revisional jurisdiction of this Court.

 

5.            It may be pertinent to reproduce the relevant portion of the Trial Court Judgment in order to illustrate the manner in which the evidential issue was discussed and addressed therein:

 

“In order to prove plaintiff’s assertions, plaintiff has exhibited Primary School Certificate issued by Head Master Govt. Boys Primary School Khedkar Taluka Larkana at Ex:13-A, but perusal of record shows that the MNIC was issued to the plaintiff in the year 1974 while Primary School Certificate was issued on 18-01-2013 much after the issuance of MNIC. Plaintiff has not produced General Register of said School nor he examined any representative of said School. Plaintiff also produced Service Book which reflects that his date of birth is 18-08-1958 recorded on the basis of Primary School Certificate. Service Book further reveals that it was prepared in the year 1988 whereas the plaintiff produced his Original Primary School Certificate at Ex:13-A which reveals that the Primary Certificate was issued on 18-01-2013. Plaintiff has also produced P.S copies of CNIC of his brother namely Ghulam Mustafa and Jan Muhammad in order to prove that his father name is Muhammad Hassan instead of Muhammad Hassan Khan but photo copies are not admissible in evidence. More over plaintiff also produced MNIC of his father in order to prove that his father name is Muhammad Hassan instead of Muhammad Hassan Khan. It is pertinent to point out that the plaintiff has not produced record of his father’s MNIC nor he examined any witness from his family in support of his claim. More particularly, the plaintiff has admitted in his evidence as under:-

 

“It is fact that my manual card was issued in the year 1974, in which I mentioned my date of birth as18 years.

 

It is fact that I also mentioned my father name as Muhammad Hassan Khan Abbasi in the form of Old NIC.

 

It is fact that I did not produce my document before the defendants showing his date of birth as 01.01.1958 and father name is Muhammad Hassan”.

The above discussion clearly shows that plaintiff failed to prove that his actual date of birth is 18.08.1958 and father name is Muhammad Hassan. On the other hand DW-1 Abdul Naeem has stated in evidence that on 25.02.1974 plaintiff got his Manual NIC in which he himself mentioned his age 18 years and father name is Muhammad Hassan Khan. On 23.12.2003 plaintiff came to them for issuance of Computerized NIC and produced his Old NIC which shows his date of birth as 01.01.1995 and his father name is as Muhammad Hassan Khan Abbasi. Thereafter as per direction of Government of Sindh he again approached them for issuance of Smart Card and Service Card on 13.12.2012 in which plaintiff himself mentioned his date of birth as 01.01.1995 and his father name is Muhammad Hassan Khan Abbasi then they issued such form to him, thereafter he submitted the form after its attestation from authorized officer. He produced Scan copy of form of Old NIC at Ex:15-A which reveals that the date of birth of plaintiff is 18 years in the year 1974 and father name is Muhammad Hassan Khan, defendant also produced Scan copy of New CNIC form at Ex:15-B in the year 2004 which also reveals that the date of birth of plaintiff is 01.01.1995 and father name is Muhammad Hassan Khan Abbasi. Lastly the defendant produced form of Smart Card at Ex:15-C which also reveals that the date of birth of plaintiff is 01.01.1995 and father name is Muhammad Hassan Khan Abbasi. Plaintiff side did not denied the said documents produced by the defendants. It is well settled law that if any party did not challenge the documents during cross examination then the presumption would be that the party has accepted the said documents.

In view of above discussion, I conclude that plaintiff has failed to prove that his actual date of birth is 18.08.1958 and his father name is Muhammad Hassan instead of Muhammad Hassan Khan, therefore these issues No.02 and 03 are decided in Negative.

Issue No. 04.

In view of my findings given on the issues No.01 to 03, the plaintiff is not entitled for a decree, hence the suit of plaintiff is hereby dismissed with no order as to costs. Let the decree be prepared accordingly.”              

 

(Underline added for emphasis.)

6.            The issue before the learned appellate Court, in addition to the issues determined by the Trial Court Judgment, was the question of limitation as the appeal was filed beyond the prescribed period of limitation. The learned appellate Court maintained that the appeal was time barred and in addition thereto upheld the adjudication on merits undertaken by virtue of the Trial Court Judgment. It may be pertinent to reproduce the relevant passages from the Impugned Judgment herein below:

 

“Admittedly, judgment & decree was passed on 02-12-2015- and appellant has filed instant appeal on 07-01-2016, while 30 days time is provided for filing appeal against the decree, which would have been filed on 01-01-2016 hence there is delay of 6 days. As per appellant after announcement of judgment appellant became ill and as he regained his health obtained certified copies of pleading and judgment and decree and consulted with his counsel hence delay in filing appeal is beyond his control, which may be accepted as sufficient cause and delay in filing of appeal may be condoned. On the other hand respondent have filed counter-affidavit, whereby objected condonation of delay and claimed that neither medical certificate, showing ailing condition is annexed with application, nor any disease was shown by appellant hence no sufficient cause justifying condonation put forth, thus their appeal is liable to be dismissed on this score alone. I have perused the contents of application u/s-5 of limitation act so also counter affidavit filed by respondents. It is settled principle of law that party claiming condonation of delay has to put-forth justifiable reason justifying delay of each and every date, but in the case in hand appellant has just mentioned in his application that appellant became ill, neither any medical certificate showing duration of ailing condition nor any disease was shown by appellant. It has rightly been contended by learned counsel appearing for respondents that in absence of any cogent proof application for condonation of delay cannot be granted mere on the basis of mentioning of word of ailing condition, since the appellant has miserably failed to justify or submit any cogent proof, hence his application for condonation of delay merits no consideration being devoid of any sufficient cause, hence same is dismissed, and this point is answered in affirmative.

10.       The case laws reported at 1995 SCMR 323 & PLD 2005 SC 153 are not helpful to appellant, because in former case reason for delay was shown that true copy of the judgment was obtained by counsel, who kept the same with himself and did not bother to inform the party and the party first time gained knowledge when notice of execution application was served upon them, and in that case no counter-affidavit was filed by respondent side, while in present appeal counter-affidavit was filed by respondents and cause of delay in ailing position of party, who not only failed to submit any medical proof but miserably failed to mention the name of disease so also duration of ailing position. In 2nd reported case law ground for condonation of delay was commencement of summer vacation and time requisite for obtaining certified copies, as during summer vacation offices were closed hence appeal was filed within five days from 1st opening day with assumption that time requisite in obtaining true copies would be excluded in computing time for filing appeal, again, obviously this is not the issue in this case, while reliance of learned counsel appearing for respondent on 2014 CLC 1318, PLD 2006 Kar 148 and PLD 1961 (W.P) Kar. 231 is fully applicable in the case in hand. It is appellant’s duty first to mention the name of disease, then duration of disease and then submit such medical certificate of unimpeachable character, which could not only justify prescription of disease but could show complete bed-rest advice for appellant, which is lacking and more particularly counter-affidavit filed alleging malafide on part of appellant.

 

POINT NO.2.

            11.       Now I propose to take up and decide the main appeal. From perusal of the R&Ps, it appears that the plaintiff filed suit seeking correction in his date of birth from 01.01.1955 to 18.8.1958 and name of his father from “Muhammad Hassan Khan” to “Muhammad Hassan”. In the evidence of the plaintiff before trial Court, he produced copies CNICs of his brothers. Learned trial Court did not consider those copies being photocopy, while the primary certificate pertained to year 2013 and prior to that appellant has himself shown his age as 01-01-1955 and his father’s name as Muhammad Hassan Khan. Not only has this but appellant is a civil servant and he is trying to enjoy service benefits by obtaining correction of date of birth in his CNIC, hence learned trial court has rightly decided the issues against the appellant/plaintiff, in accordance with law, therefore, this point is answered in negative.

 

(Underline added for emphasis.)

 

POINT NO.3.

            12.       Keeping in view the entire material available on the record, and for the reasons discussed hereinabove, I am of the considered view that the Judgment & Decree passed by learned trial Court needs no interference, hence the same is maintained and the appeal being time barred so also devoid of merits is dismissed. However, the parties shall bear their own costs. The R&Ps be returned to learned trial court. let the decree be prepared accordingly.”

 

7.            The Trial Court Judgment appears to have been rendered after a cogent appraisal of the evidence placed there-before and no infirmity has been identified in respect thereof. The evaluation of merit, so conducted, has been upheld and maintained by the Impugned Judgment and in addition thereto it is also part of the record that the appellate proceedings were in fact time barred and the application for condonation of delay was disallowed for the reasons stipulated in the Impugned Judgment. The discretion to condone the delay was vested with the learned appellate Court and no grounds have been urged to merit the interference of this Court in the discretion so exercised by the learned appellate forum.

 

8.            The judgment in the case of Imran Khan is distinguishable in the present facts and circumstances as nothing is on record to demonstrate that the Trial Court Judgment and or the Impugned Judgment suffer from the infirmities highlighted in Imran Khan. In Roquaiya Farid, a Division Bench of this Court had undertaken the rectification of the record without recourse to a civil suit in the circumstances therein, hence, the same is also distinguishable in the present facts and circumstances as the present proceedings seek revision of the Impugned Judgment.

 

9.            It is trite law that the concurrent findings coupled with a preponderance claim supported by evidence may not be ordinarily interfered with by a Court in exercise of revisional jurisdiction. It is also within the contemplation of this Court that the exercise of revisional jurisdiction does not generally entail reappraisal of evidence. Reliance in this regard is placed upon the judgments of the superior Courts reported as 1997 SCMR 1139, 2000 SCMR 431, 2004 SCMR 877 and 2002 CLC 1295.

 

10.         In view of the rationale and reasoning contained herein above it is the considered view of this Court that no grounds have been urged to merit the interference of this Court with the Impugned Judgment hence the same is hereby maintained and upheld. The present revision application is hereby dismissed with no order as to costs.

 

Judge

 

 

 

Abid H. Qazi/**