BEFORE THE HON’BLE MIAN BASHIR AHMAD BHATTI,

ADDITIONAL DISTRICT JUDGE, MULTAN.

In re:
Pakistan Railways Vs. Syed Maqbool Hussain Gillani

WRITTEN ARGUMENTS ON BEHALF OF RESPONDENT

Respectfully Sheweth: -
1. That brief facts leading to the instant appeal filed by Pakistan
Railways are that appellant filed an appeal against the
judgment and decree dated 27.11.1998 passed by Mr.
Muhammad Yahya Kulachi, Civil Judge 1st Class, Multan
through which he decreed the suit of respondent/plaintiff.
2. That after years of absence from his home and birth place,
respondent/plaintiff was posted at his home town, then he had
a chance to see some of his elders who told him about his
actual date of birth and then for confirmation, he looked into
Municipal record and first school record, from where he got
documentary confirmation and then without wasting any time,
he moved for correction of his date of birth in record and
certificates, hence filed a suit for Declaration in the Civil
Court, Multan on 11.5.1993, that his actual date of birth is
5.12.1942 and erroneously recorded 9.6.1939 in Matriculation
Certificate as well as in Service Record, which is liable to be
corrected and consequential relief that defendants be directed
to record correct date of birth in plaintiff’s service record.
Board of Secondary Education Punjab, Lahore and Pakistan
Railways were impleaded as defendants, who contested the
suit by filing written statement. Therefore, trial court framed
the following issues: -
 i) Whether plaintiff’s date of birth is 5.12.1942 and
entries of date of birth as 9.6.1939 in the Matric
Certificate under Roll No. 39614 issued on 2.11.1955
by defendant No. 2 is against the facts, void and liable
to correction? OPP
ii) Whether the plaintiff has no cause of action to file this
suit? OPD
iii) Whether plaintiff is estopped to file this suit by his own
words and conduct? OPD
iv) Whether plaintiff’s suit is time barred? OPD
v) Whether the Civil Court lacks jurisdiction to entertain
this suit? OPD
vi) Whether suit of plaintiff is pre-mature? OPD
vii) Whether defendants No. 1 & 2 are entitled to special
costs under section 35-A C.P.C.? OPD
viii) Relief.
3. That the trial court recorded evidence of the parties. During
pendency of proceeding before trial court, defendants No. 1 &
2 corrected the date of birth in Board’s record on the
recommendations of Committee constituted for correction of
date of birth who fully examined the Municipal Corporation
Multan record and verified the truth and correctness of date of
birth of plaintiff as 5.9.42 and accordingly the Board
corrected the record and issued an amended/duplicate
Matriculation Certificate on 25.6.96 which is available on the
trial court file as EX-P3. Plaintiff adduced the said document
as additional evidence. Present appellant, Pakistan Railways
contested and objected on additional evidence but learned
Civil Judge, vide order dated 16.12.1996 rejected their
objection. It is pertinent to point out that date of birth in
Matriculation Certificate was amended by the Board of
Education and that amended Certificate is till to date intact.
Pakistan Railways did not challenge the amendment in
Matriculation Certificate at any stage. Further entry of bnirth
in respondent/plaintiff’s service record is as per Matriculation
Certificate (EX-D/2), therefore, department is bound to
 amend the date of birth of respondent as per amended
Matriculation Certificate, but department is not amending the
same with malafide designs. From the record of trial court, it
also appears that defendant No. 3 moved an application dated
12.7.1993 under Order VII Rule 11 C.P.C. for dismissal of
suit as no cause of action is available to the plaintiff against
Pakistan Railways. But this application was turned down by
the learned trial court vide order dated 16.5.1994. Defendant
No. 3 did not challenge the said order before any Higher
forum thus, the said order attained finality.
4. That after recording evidence of parties and hearing
arguments, Mr. Zafar Hassan Bhatti, Civil Judge Ist Class,
Multan decreed the respondent/plaintiff’s suit vide judgment/
decree dated 8.4.1997. Pakistan Railways assailed the said
judgment/decree in appeal before District Judge, Multan. The
said appeal was further assigned to Rao Akbar Ali learned
Additional District Judge, Multan who remanded the case to
trial court vide judgment dated 17.7.1998. In this judgment,
learned Appellate Court upset the findings of trial court on
issues No. 1 to 4 whereas findings of trial court on issues No.
5 to 7 were upheld. Issue No. 5 regarding jurisdiction of Civil
Court was upheld by trial court and appellant/defendant did
not challenge the said order of Appellate Court, therefore said
order attained finality and at this stage, appellants are
estopped to take plea that Civil Court has no jurisdiction to try
the plaintiff’s suit. Even otherwise, in the case of “Province of
Punjab Vs. Syed Irshad Hussain Bukhari (2000 PLC (C.S)
787)” and in case of “Regional Commissioiner of Income Tax
Vs. Shafi Muhammad Baluch (1997 MLD 2801)” High Court
held that Civil Court has the jurisdiction to correct the date of
birth of Civil Servant as it does not fall within terms &
conditions of service.
5. That on remand, learned trial court, summoned the complete
and original record of Municipal Corporation Multan and
School record as Appellate Court directed the trial court to
examine the original record of Municipal Corporation Multan
 and record of School. Witnesses were examined and
appellants/ defendants were offered full opportunity to cross-
examine the said witnesses but as is evident from record of
trial, evidence of witnesses could not be shaken in any way as
is clear from personal observation of the Judge of trial court
which he recorded on the file that correct date of birth is
5.12.1942 without any doubt. Therefore, trial court recorded
and held that actual date of birth of plaintiff is 5.12.1942. and
decided Issue No. 1 in favour of respondent/plaintiff. Thus
decreed the respondent/plaintiff’s Civil suit vide judgment/
decree dated 27.11.1998.
6. That appellant assailed the aforesaid judgment/decree dated
27.11.1998 of Civil Court second time in the present appeal.
Appellant filed the present appeal on 4.2.1999 which is
hopelessly barred by time.
7. That the fact of appeal being time barred is admitted by
appellant in Para 5 of appeal. From the contents of application
for condonation of delay, it appears that after judgment/decree
dated 27.11.1998, appellant applied for certified copy on
30.11.1998, copy prepared on 15.12.1998 and same was
delivered on 17.12.98 as such maximum period for filing of
present appeal was upto 14.1.1999. Thereafter, appellant
again on 30.1.1999 filed an application for obtaining certified
copy of judgment/decree dated 27.11.1998 second time on
30.1.99, certified copy was prepared and delivered on the
same dated i.e. 30.1.1999 but again appellant filed the appeal
with 4 days delay on 4.2.2000 after obtaining certified copy
of impugned judgment on 30.1.1999 and there is no
explanation of the said delay or delay caused earlier which is
very much material for filing of appeal. As a whole appeal
was filed with delay of 20 days. The contention taken by the
appellant that as certified copies were obtained by Mr. Sh.
Rahim Nawaz, Advocate and he was observing “ETEKAF”.
Therefore, appeal could not be filed as certified copies were
misplaced. This contention of appellant is totally false and
concocted, as 1st Ramzan-ul-Mubarak was on 21.12.1998
 (Monday) and “ETEKAF” is observed on 20th Ramzan which
falls on 9.1.1999 (Saturday). 29th Ramzan falls on 18.1.1999
(Monday) and Eid-ul-Fitr falls on 19/20-1-1999 (Tuesday &
Wednesday). From this, it appears that after collection of
certified copy on 17.12.1998, there was sufficient time of 28
days with appellant to file appeal. Even on obtaining certified
copies, Mr. Sh. Rahim Nawaz wrote a letter dated 17.12.1998,
to the Pakistan Railways that to avoid delay, appeal must be
filed before 7.1.1999 as maximum it can be filed till 10.1.99.
But present appellant did not care to file appeal within time
and filed a time barred appeal without any sufficient ground
as recognized by law on the point as such delay caused in the
filing of appeal cannot be condoned as held by the Superior
courts of Pakistan in series of judgments. Contention taken in
application that Railways appointed other counsel is also
wrong as present appeal filed by Choudhary Muhammad
Shafiq who is conducting Railways cases from last many
years. The Supreme Court of Pakistan in case reported in PLD
1995 SC 472 held that “once the limitation start, it cannot be
stopped, and limitation in appellant’s case was started from
18.12.1998.
8. That Section 3 of Limitation Act which is reproduced as
under: -
“3. Dismissal of suit, etc., instituted, etc., after period
limitation.---Subject to the provisions contained in Section 4
to 25 (inclusive), every suit instituted, appeal preferred and
application made after the period of limitation prescribed
therefore by the First Schedule shall be dismissed, although
limitation has not been set up as a defence.”
From bare reading of the aforesaid provisions of law, it
becomes absolutely clear that court of law is bound to first
decide the point of limitation and in case suit or appeal is
barred by time, same should be dismissed, as held in
PLJ 1996 Lah. 939, 1997 CLC 268, 1998 SCMR 785 also at
page 2376 of the same year: -
 That to ignore clear provision of law of Limitation is
“Mockery of law of Limitation”
It is further held in multiple cases that time barred appeal to
be dismissed without entering on merits and Govt. stands on
no different footing than an ordinary litigant and indulgence
can be shown in their favour as they have better set up and
organization to prosecute their case as compare to common
litigants. Therefore, Govt. is to be treated as ordinary litigant.
Few citations are quoted as under: -
(i) PLD 1973 Notes 85
(ii) PLJ 1985 SC 186
(iii) PLD 1995 SC 472
(iv) 1998 SCMR 2732, 307, 2376
(v) 1997 SCMR 959
(vi) PLD 1999 Lah. 182
(vii) PLD 1994 Lah. 153
(viii) 1997 CLC 434
(ix) 1999 PLC SC 1244
(x) 1997 MLD 2801
(xi) 2000 PLC (C.S) 787 [Lahore High Court]
(xii) NLR 1991 Service 39 [Lahore High Court]
(xiii) Judgment dated 1.3.1999 in Civil Revision No. 722-
D/98

9. That it is important to mention here that in compliance of civil

court judgment/decree appellant/defendant i.e. I.G. Pakistan
Railway Police corrected the Service record of appellant vide
Memo No. A-31/118-PRP dated 1.8.1998 but thereafter
provisionally withdrew the same vide Memo No. A-31/118-
PRP dated 18.9.1998 and respondent/plaintiff was retired
provisionally subject to outcome of the present appeal. This
correction in service record was made much prior to filing of
instant time barred appeal, therefore, this vested right of
correction of service record of the respondent/plaintiff cannot
be withdrawn by time barred appeal and principle of law of
 “locus Poenitaintia” and estoppel will be applicable, hence,
time barred appeal is liable to be dismissed.
10. That an appeal of identical nature titled Housing & Physical
Planning Department Vs. Shaukat Ali Khan was filed before
Additional District Judge, Multan which was dismissed only
on the points of limitation Govt. Department filed Civil
Revision Petition No. 722-D/98 in the Hon’ble High Court,
which was also dismissed on the point of limitation, thus
judgment of lower court was confirmed. Copies are being
annexed.
In view of above respectful submissions, appeal
is devoid of force, therefore, same is liable to be
dismissed with cost in the interest of justice.
Respondents/Plaintiffs

Dated: 4.11.2000.
Through: -
Muhammad Amin Malik,
Advocate High Court,
38-Muhammadan Block,
District Courts,
Multan.