PLJ 2023 Peshawar (Note) 44
Present: Ms. Musarrat Hilali, J.
MUHAMMAD DANISH--Petitioner
versus
GOVERNMENT OF KHYBER PAKHTUNKHWA through SECRETARY HEALTH, CIVIL SECRETARIAT, PESHAWAR
and 12 others--Respondents
C.R. No. 928-P of 2021, decided on 5.9.2022.
Specific Relief Act, 1877 (I of 1877)--
----S. 42--Civil Procedure Code, 1908 (V of 1908), O.VII R. 10, S. 115--Change in name--Suit for declaration was dismissed--Appeal was dismissed--Change in name was never condition of service--Requirement of law--Change of name has ever been made one of a term and condition of service; prayer of petitioner, as per averments of plaint, does not pertain to terms and conditions of his service--When both Courts below in their own wisdom were convinced that matter relates to terms and conditions of service, then instead of dismissing suit, were required to return plaint under Order VII Rule 10 C.P.C.--Petitioner has directly filed a declaratory suit which was dismissed by trial on ground of maintainability as well as jurisdiction, which is not in accordance with law--Trial Court, as stated earlier, under law, was required to return plaint under Order VII Rule 10 C.P.C as rovisions of law leaves Court no option as instead of returning plaint if Court dismisses suit, it amounts to passing a decree without having jurisdiction--Judgments of both Courts below being not in accordance with law--Revision petition allowed.
[Para 6, 7, 7 & 9] A, C, D, E & F
Civil Procedure Code, 1908 (V of 1908)--
----O.VII R. 10--Return of plaint--Plaint shall, at any stage of suit, be returned to be presented to Court in which suit should have been instituted. [Para 7] B
Malik Shahbaz Khan, Advocate for Petitioner.
Mr. Abdul Munim Khan, Advocate & Mr. Mabashir Manzoor, AAG for Respondents.
Date of hearing: 5.9.2022.
Judgment
This civil revision has been filed against the judgment dated 13.10.2021 passed by learned Additional District Judge-VI, Peshawar, whereby appeal filed by the petitioner against the judgment dated 11.03.2020 passed by learned Civil Judge-XVIII, Peshawar, was dismissed.
2. Facts of the case, in brief, are that the petitioner filed a suit for declaration to the effect that his name was recorded as ‘Gulab Zada’ but he has changed it as “Muhammad Danish”. He also sought for mandatory injunction directing the defendants-respondents to make necessary corrections in the relevant record and that the defendants be permanently restrained from continuous wrong entries of his name in their official record.
3. When summoned, defendants’ No. 11 to 13 (NADRA) contested the suit by filing written statement, while rest of the defendants did not appear; therefore, they were placed exparte. The learned trial Court after recording statement of petitioner as PW-1 dismissed the suit, vide judgment dated 11.03.2020, on the grounds that (i) the petitioner is civil servant, therefore, his case is hit by Article 212 of the Constitution of the Islamic Republic of Pakistan, 1973, and, secondly, declaratory suit is not maintainable as it does not fulfill the basic ingredients required for a declaratory suit. Feeling aggrieved, the petitioner filed an appeal but the same was also dismissed by the learned Additional District Judge-VI, Peshawar, hence, the instant petition.
4. Arguments heard and record perused.
5. Undisputedly, the petitioner is a civil servant and he by way of declaratory suit has sought for correction/change of his name in his credentials/ educational record maintained by the respondents. The learned trial Court after recording statement of the petitioner as PW-1 dismissed his suit on the ground that the petitioner is civil servant; therefore, his case is hit by Article 212 of the Constitution of the Islamic Republic of Pakistan, 1973. The findings of learned trial Court were also concurred by the learned appellate Court, therefore, in the backdrop, it would be appropriate to understand the true meaning of the term; ‘terms and conditions of service” of a civil servant.
6. The preamble of the Act, 1973, would reveal that it is an Act to regulate by law, the appointment of persons to, and the terms and conditions of service of persons in the service of the Khyber Pakhtunkhwa and to provide for matters connected therewith or ancillary thereto. The “terms and conditions” have been defined in Section 3 of the Acts, 1973, which, for ready reference, is reproduced herein below:
“3. Terms and conditions.--the terms and conditions of service of a civil servant shall be as provided in this Act and the rules”.
From the above definition, it is clear that the terms and conditions of a civil servant are such which have been provided by sections 3 to 22 of the Act, 1973, and Rules, i.e., the Khyber Pakhtunkhwa Civil Servants (Appointment, Promotion and Transfer) Rules, 1989. Perusal of the above referred Act and the Rules nowhere reveal that the change of name has ever been made one of a term and condition of service; therefore, the prayer of the petitioner, as per averments of the plaint, does not pertain to the terms and conditions of his service. Hence, the learned trial Court has erred in law by holding that case of the petitioner is hit by Article 212 of the Constitution being a civil servant.
7. Moreover, under Order VII rule 10 C.P.C the plaint shall, at any stage of the suit, be returned to be presented to the Court in which the suit should have been instituted. Procedure on returning plaint has been provided under sub-Rule (2) of Rule 10 of the above Order, which says that on returning a plaint the Judge shall endorse thereon the date of its presentation and return, the name of the party presenting it, and a brief statement of the reasons for returning it. The provisions of Order VII Rule 10 C.P.C are mandatory as any adjudication by a Court without jurisdiction is a determination ‘coram non judice’. It has now been well settled that when a Court lacks jurisdiction to entertain a suit, the plaint is to be returned for presentation to the proper forum and such Court cannot pass any judicial order except that of returning the plaint. When both the learned Courts below in their own wisdom were convinced that the matter relates to the terms and conditions of service, then instead of dismissing the suit, were required to return the plaint under Order VII rule 10 C.P.C., thus, the judgments of both the Courts below, on this score too, being in blatant violation of the provisions of Order VII rule 10 C.P.C are not sustainable under the law.
8. As far as the second ground as to maintainability of declaratory suit is concerned, it is pertinent to mention here that a Court of law does not intervene in a matter of change of name unless someone questions such change in the name. For vowel change in name, procedure has been provided in a notification dated 20.11.2019, issued by BISE, Peshawar, according to which, a candidate shall apply to the Board on the prescribed form, publication in at least in one local newspaper and deposit of prescribed fee and if the candidate claim fundamental change in his name, there shall be approval of the correction committee or Court decree and deposit of prescribed fee. In the instant case, the petitioner has directly filed a declaratory suit which was dismissed by the learned trial on the ground of maintainability as well as jurisdiction, which is not in accordance with law as it is well settled that filing of a suit or proceedings under a wrong provision of law or wrong forum does not affect the maintainability of suit. The learned trial Court, as stated earlier, under the law, was required to return the plaint under Order VII Rule 10 C.P.C as the above provisions of law leaves the Court no option as instead of returning the plaint if the Court dismisses the suit, it amounts to passing a decree without having jurisdiction.
9. Accordingly, for the reasons discussed above, the judgments of both the Courts below being not in accordance with law are hereby set aside on acceptance of the instant revision petition, consequently, the case is remanded back to the learned trial Court for decision afresh in accordance with law.
(Y.A.) Revision petition allowed
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