change name nadra

PLJ 1998 Karachi 642

Present: SYED DEEDAR HUSSAIN SHAH, J.

MUHAMMAD HAMDAN SHAIKH-Petitioner

versus

CHAIRMAN, BOARD OF SECONDARY EDUCATION NAZIMABAD, KARACHI and 2 others-Respondents

C.R. No. 104 of 1997, dismissed on 8.10.1997.

 Civil Procedure Code, 1908 (V of 1908)-

—-S. 115-Change of name-Suit for declaration-Concurrent finding of fact by Courts below-Appellant has himself filled-in-form of Secondary School Examination and subsequently passed examination-Provisions of Section 42 of Specific Relief Act, shows that it is in three cases that such declaration can be granted; first Le. declaration of status, legal right or character-Prayer of applicant on face of it does not fall within any of three ingredients of Provisions of Section 42 of Specific Relief Act-Contention of learned counsel in as much as Section 9 of C.P.C.. provides that all matters of civil nature, are to be barred by civil court is accepted but a person approaches court to seek particular relief has to satisfy as to under what provisions of law he is entitled to get such relief-Contention that word" Shariq" flows from word "Sher" being not treated as good name under Islamic Concept is hardly ground to be considered Held : Courts below have rightly exercised their jurisdiction and acted in exercising jurisdiction legally and there is no material illegality or irregularity in exercising of jurisdiction-Application without substance is accordingly dismissed.      [Pp. 546, 547, 548 & 549] A to E

PLD 1954 Sind 107; PLD 1962 (WP Karachi) 353.

Mr. Muhammad Aqil, Advocate for Petitioner. Nemo for Respondents.

order

The revision applications have been filed against the concurrent findings of learned District and Sessions Judge Karachi Central and First Senior Civil Judge, Karachi Central. The facts of the matter are that the applicant filed Suit No. 986/93 in the Court of 1st Senior Civil Judge, Karachi Central, stating therein, that the applicant completed his education under the name "Muhammad Shariq Shaikh" upto Matriculation examination from Gulistan Shah Abdul Latif Boys Secondary School, Karachi, and passed his Matriculation examination in the year 1989. He also appeared in the Secondary School Examination as a student with Roll No. 160466. The examination was held by the Board of Secondary Education, the Respondent No. 1, in March 1989. The applicant passed the examination in Grade 'D'. The applicant on the advice of his elders changed his name from Muhammad Sharif Shaikh to Muhammad Hamdan Shaikh and obtained National Identity Card in the name of Muhammad Hamdan Shaikh son of Muhammad Aleem Shaikh. He approached the respondent with a request that necessary change in the certificate about his name from Muhammad Shariq Shaikh to Muhammad Hamdan Shaikh may be made. The Director of School Education verbally refused the request of the applicant and directed him to seek remedy through the competent Court of law. Thereafter he filed the suit for declaration and injunction and claimed the following reliefs :-

(a)              "Declaration that the name of the plaintiff in Muhammad Hamdan Shaikh son of Muhammad Aleem Shaikh and to
be   corrected   in   the   records   of  the   defendants   as Muhammad Hamdan Sheikh son of Muhammad Aleem
Shaikh   instead   of   Muhammad    Shariq   Shaikh   s/o Muhammad Aleem Shaikh.

(b)       Mandatory injunction directing the defendants to place the name of plaintiff as Muhammad Hamdan Shaikh in place
of Muhammad Shariq Shaikh in their records as well as in the Secondary School Certificate and Mark Sheet issued by the  efendants to the plaintiff and corrected certificates shall be issued to the plaintiff.

(c)              Any other and better relief this Hon'ble Court may deem fit and proper may be granted to the plaintiff.

(d)              Costs of this suit may also be awarded to the plaintiff.

The respondents were served. Respondents Nos. 2 and No. 3 filed their written-statements and took legal and factual places. They submitted that the suit is not maintainable and the same is barred under Sections 25 and 27 of the Sindh Board of Secondary Education Ordinance 1979. That no cause of action has accused to the applicant. Their plea was that the applicant cannot change his name on the advice of his elders nor he can change the same on the basis of National Identity Card. They have further submitted that the applicant is not entitled to seek declaration from the Court and mandatory injunction also cannot be granted. On the pleadings of the parties the trial Court settled the following issues :-

1.                   Whether suit is maintainable under the law ?

2.                   Whether plaintiff is entitled for correction of his name as claimed ?

3.                   What should the decree be ?

During the trial the applicant examined himself, his father Muhammad Aleem and Ambreen Aleem were also examined in his support. The trial Court decided the issues against the applicant thereafter he filed appeal before the learned District Judge, Karachi Central being Civil Appeal No. 7/96 which was also dismissed. Hence he approached this Court.I have heard Mr. Muhammad Aqil learned counsel for the applicant who has contended that the learned District Judge erred in law in not reading the material on record and in not applying his judicial mind in deciding the appeal. That the learned District Judge erred in law in not considering the civil nature of the suit as required under Section 9 of CPC. That the learned Judge erred in law in not appreciating the custom prevailing in the society that when any child is born its name shall be given by their parents/elders in family which custom and usage is also guaranteed under Article 8 of Constitution of Islamic Republic of Pakistan. That the learned Courts below failed to consider the evidence of the applicant and his witnesses which remained unchallenged and unshattered whereas the evidence on behalf of the respondents was not adduced. Learned counsel referred 1994 MLD 2208 (Board of Intermediate and Secondary Education vs. Muhammad Zaheer Ahmad). The learned counsel has contended that the word "Shariq" flows from the word "Sher" which is not being treated as good name under the Islamic concept and every citizen has rights of good reputation and equal place in Islam. He can change his nameThe respondents were served but were called absent. Written-statements on behalf Respondents Nos. 2 & 3 were filed before the trialCourt in which they have rebutted the contentions of the appellant and havemaintained that the suit is barred under Sections 25 and 27 of the SindhBoard of Intermediate at Secondary Education Ordinance, 1979. That nocause of action has accrued to the plaintiff against the defendants. I have alsoperused the copies of the evidence adduced by the appellant. The contentionof Mr. Muhammad Aqil is not born-out from the record in as much as the'appellant examined himself his father Muhammad Aleem and his witnessAmbreen Aleem were cross-examined by the learned counsel of behalf of the respondents. In cross-examination the appellant has stated "I had filed examination form of S.S.C. examination and hadmentioned my name as Muhammad Shariq Shaikh, whichwas verified by Head Master of my School. It do not known_v       the reason of change of my name and it was done by myfather. It is correct that I have not mentioned in my plaint that generally parents and elders of family give names to their children. It is not a fact that I had not gone to defendant No. 2. It is correct that Defendants No. 2 has not advised me to obtain decree from Court."In cross-examination his father Muhammad Aleem has stated :"It is correct that the name of plaintiff as mentioned in his examination form and defendant has issued certificate to plaintiff as per his examination form and no mistake hasbeen committed by defendant in this regard.In cross-examination Ambreen Aleem has stated :"It is correct that the name of plaintiff as mentioned in his examination form was mentioned by defendant in certificate issued.by defendant and Board has committed no mistake in issuance of certificate."The contention of Mr. Muhammad Aqil that evidence of the appellant has gone unchallenged and unshattered, in view of the cross-examination is not tenable. On the contrary it is crystal clear that the appellant has mentioned his name as Muhammad Shariq Shaikh in his form for appearing in the Secondary School Examination. The factual position of the matter is that name of the applicant as Muhammad Shariq Shaikh was duly filled-in by the applicant himself for appearing in Secondary School Examination. Moreover before getting admission in the Gulistan Shah abdul Latif Boys Secondary *~ School, SMHS, Karachi, the appellant must have taken primary education in some primary school and after completion of the primary education and getting such passed certificate the appellant may have received admission in Gulistan Shah Abdul Latif School but the appellant has not produced any evidence to this effect which rather supports the version maintained by therespondents in their written-statement filed before the trial Court. That the appellant has himself filled in the form and thereafter he subsequently passed the examination in 'D' Grade. The contention of Mr. Muhammad Aqil that the appellant is entitled to get the declaration under Section 42 of the Specific Relief Act, which reads as follows: -

42. Discretion of Court as to declaration of status or right.--Any person entitled to any legal character, or to any right as to any property, may institute a suit against any person denying, or interested to deny, his title to such character or right, and the Court may in its discretion make therein a declaration that he is so entitled, and the plaintiff need not in such suit ask for any further relief.Bar to such declaration-provided that no Court shall . make any such declaration where the plaintiff, being able to seek further relief than mere declaration of title, omits to do so.Explanation.--A trustee of property is a "person interested to deny" a title adverse to the title of some one who is not in existence, and for whom, if in existence, he would be a trustee."A perusal of the above provisions shows that it is in three cases that such declaration can be granted; first i.e. declaration of status, legal right or character. The prayer of the applicant on the face of it does not fall within any of the three ingredients of the provisions of Section 42 of the Specific Relief Act. Mr. Muhammad Aqil has further contended that Section 9 of CPC the applicant would be entitled to the grant of relief prayer for by him. I am not inclined to accept this contention of the learned counsel in as much as Section 9 of the CPC provides that all matters of civil nature are to be heard by the Civil Court, but a person approaches the Court to seek particular relief has to satisfy as to under which provisions of law he is entitled to get such relief.The facts of the case Law referred by Mr. Muhammad Aqil i.e. 1994 MLD 2208 - Board of Intermediate and Secondary Education vs. Muhammad Zaheer Ahmad, are that Muhammad Zaheer, the Respondent, filed a suit for declaration to the effect that his date of birth was 28.1.1960 and he claimed a decree to be passed by way of consequential relief to the effect that the petitioning Board accordingly enters his correct date of birth in the record relating to his Secondary School Examination. The suit was contested by the respondent on a number of technical pleas and also on merits with the averment that the plaintiff had himself mentioned his date of birth as.6.1957 which is his correct date of birth therefore his application prayingfor such a correction of his date of birth was rightly rejected by the Board.Pleas of the parties led to the framing of five issues wherein questionsrelating to jurisdiction of Civil Court and the maintainability of the suit wereset down under Issues Nos. 1 and 4 respectively. On the basis of evidence ledby the parties, trial Court decided all the issues in favour of the plaintiff onthe basis of conclusion reached that his correct date of birth is 28.1.1960 andnot 6.6.1957 inasmuch as his parents got married in that year. Against theorder of the trial Court the Board preferred an appeal which was dismissedby the learned Addl. District Judge. Subsequently revision applicationagainst the concurrent findings of the facts reached by the two Courts belowwas filed before the learned Lahore High Court, where the learned Judgewas pleased to dismiss the revision filed by the Board of Intermediate andSecondary Education. The facts of the referred case are different anddistinguishable from the facts of the revision in hand. In the above referredcase the suit for correction of date of birth was requested and keeping inview the evidence adduced by the parties the suit was decreed and the dateof birth was corrected from 6.6.1957 to 28.1.1960. In the present matter theappellant has himself filed in the formofSecondarySchoolExaminationandsubsequently he passed the examination. The contention of Mr. MuhammadAqil that word "Shariq" flows from the word "Sher" the same being nottreated as good name under the Islamic concept is hardly a ground to beconsidered. It would be pertinent to refer the case of Shafqatullah Qadri. v.University of Karachi (through the Vice-Chancellor) - PLD 1954 Sindh 107wherein my lord Mr." Justice Z.H. Lari (as he then was) has held thatprovisions of Section 42 Specific Relief Act is exhaustive of the relief providedby it. No declaration can be allowed unless it can be brought within fourcorners of the section. Another case of Government of East Pakistan vs.Federation of Pakistan and another PLD 1962 (W.P.) Karachi 353, whereinmy lord Mr. Justice Inamullah, (as he then was) has held that legal rightmeans right recognised by law and capable of being enforced by power ofState, and necessarily in Court of law. The scope of revision under Section^r _x115, CPC is very limited which provides as under :-"115. Revision-d) The High Court may call fortherecordof  any   case  which   has   been   decided   by   any   Courtsubordinate to such High Court and in which no appeal lies        thereto, and if such subordinate Court appears:--

(a)      to have exercised a jurisdiction not vested in it by lawor

(b)      to have failed to exercise a jurisdiction so vested, or

 (c) to have acted in the exercise of its jurisdiction illegally or with material irregularity, the High Court may make such order in the case as it think fill.There is unreported case of this Court while deciding revision application No. 295/88 (Miss Roohi Shaikh vs. Board of Secondary Education, Karachi & others.). The facts of this case are that the applicant filed civil suit for declaration seeking the following reliefs :-

"(a) That this Honourable Court may be pleased to declare that the plaintiff above named be known by the name of 'Miss Roohi Shaikh' instead of Miss Rehmatunnisa for all purposes every where including in all the educational institutions of the country, and it is further prayed to direct the above named Defendants Nos. 1 to 3 to correct/change the New Educational Certificates accordingly in the interest of justice ;

(b)   Award costs of this suit.The case of the applicant was that on birth her parents had given her the name as Roohi Shaikh, but unfortunately at the time of admission in Primary School the name of the applicant was shown as Rehmatunnisa, which name is not correct. After having passed her Matriculation examination in the year 1982, the applicant sought amendment of her name and in the year 1986 made such prayer and got such items published in the Sindh Government Gazette of 27.3.1986 which reads as under"....It is hereby notified for general, information that I have changed my name from Miss Rehmatunnisa to Miss Roohi D/o Shaikh Haider. Hereinafter I should be called, written and remembered by my new name."She also got news item published by way of advertisement in daily "Nawa-i-Waqt" of 9.5.1985. Consequently, she obtained'Permanent Residence Certificate and Domicile Certificate . She had also moved an application to the Board of Secondary Education Karachi but the Board did not issue her Matriculation Certificate in her namtfas prayed and thereafter she filed a suit. The applicant did not find favour of the trial Court as well as First Appellate Court and the revision was also dismissed by my lord Mr. Justice Abdul Rahim Kazi (as he then was), who observed that the suit of the applicant is not maintainable as the relief sought by the applicant would not fall within the scope of Section 42 of the Specific Relief Act,    The Courts below have rightly exercised their jurisdiction and have-.acted in exercising, the jurisdiction legally and there is no immaterialillegality or irregularity in exercising of the jurisdiction. The contention ofMr. Muhammad Aqil that evidence of the appellant has gone unchallenged and unshattered is not borne out from the record but the evidence so adduced by the appellant himself, referred hereinabove, is of such nature that there is no other option except to dismiss the revision of the appellant. The case law referred by Mr; Muhammad Aqil is also not applicable and relevant to the facts of the present matter.In view of the above facts and circumstances and case law referred and discussed hereinabove, I see no substance in the revision application which accordingly is hereby dismissed in limine. On 29.9.1997 after hearing Mr. Muhammad Aqil the matter was dismissed in limine. Above are the reasons for the same.

(T.A.F.)                                                        '                Petition dismissed.