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Civil Revision No. 801/D of 1979, decided on 7th October,1986.

‑‑‑Arts. 74 & 76‑‑Secondary evidence, admissibility of‑‑Where non‑availability of original document had not been established, copy of such document as secondary evidence, held, would not be admissible in evidence particularly when such copy itself appeared to be of doubtful character.

‑‑‑S. 115‑‑Judgment and decree of Appellate Court below based on inadmissible and insufficient evidence on record, held, would not be sustainable

Sh. Abdul Majid for Petitioners.

Hamid Azhar Malik for Respondent.

Dates of hearing: 6th and 7th October, 1986.

This civil revision has arisen out of a suit brought by the respondent, Jamal Din, against the petitioners, Province of the Punjab, and Executive Engineer, Workshop Division, Bhalwal, District Sargodha.

The respondent was employed as a Foreman in the said Workshop Division of the Irrigation Department when he was retired from service, on the ground of superannuation at the age of 58 years, by treating lst January, 1915 as his date of birth. He challenged the order of his retirement, by means of the above suit, contending that he was born on 2nd March, 1918 and not on 1st January, 1915. His suit was dismissed by a Civil Judge but it was decreed by an Additional District Judge while accepting appeal preferred by the respondent against judgment and decree passed by the learned trial Court. The petitioners have, therefore, come up in revision to this Court.

2. As indicated above, the only question involved in this case is with regard to the age of the respondent. He, besides appearing as his own witness, examined three witnesses and also produced some documents. In rebuttal, the petitioners tendered some documents and closed their case.

3. To start with, I would attend to copies of the birth certificates, Exh. D. 4 and Exh. P.W.3/1, placed on the record. Exh_ D.4 was tendered by the respondent while Exh. P.W.3/1 was produced by a Notary Public, Sh. Mahboob Ilahi, who was examined by the respondent as P.W. 3. Learned counsel for the parties were unanimous that copy of the birth certificate, Exh. D.4 was not admissible in evidence inasmuch as it was not a certified copy of the original nor the non‑availability of the original had been established. In regard to copy of birth certificate, Exh. P.W.3/1 plea of learned counsel for the respondent was that it was admissible in evidence because its original which, according to the respondent, was with the petitioners had not been produced by them. His contention was that the original was given to the petitioners by the respondent at the time of joining service. This was, however, denied by learned counsel for the petitioners and it was urged by him that since the non‑availability of its original had not been proved, Exh. P.W.3/1 could not be received in evidence.

4. In his statement as P. W. 4, it was not clearly stated by the respondent that he had given the original of Exh. P.W.3/1 to the petitioners. Even if it was so, the respondent should have made an application to the learned trial Court seeking its direction for production of the original by the petitioners but he did not do so. It was admitted by the respondent, in his statement as P.W. 4, that he did not requisition the certificate from the departmental authorities. Learned counsel for the respondent, however, invited my attention to a form of process fee filed by the respondent to summon a clerk, Noor Muhammad as a witness. He was required to produce some documents. One of the documents mentioned therein was his certificate of birth but when Noor Muhammad appeared as P.W. 2 no question was put to him regarding the birth certificate. All this shows that the respondent did not make any serious effort to explain non‑availability of the original of the copy, Exh. P.W. 3/1, and, therefore, the said copy is not admissible in evidence. As a result, like copy of the birth certificate, Exh. D.4, copy of birth certificate Exh. P.W.3/1 would be excluded A from consideration.

5. Copy of certificate, Exh. P.W.3/1 also appears to be a document of doubtful character. Seemingly, it is a copy of certificate issued by the Headmaster of the Muslim High School, Dasuwa. It is a matter of common knowledge that school leaving certificates are issued on ,: indard forms, but the certificate of which Exh. P.W.3/1 is said to be a copy is not in that form. The Notary Public, Sh. Mahboob Ilahi (P.W. 3), who attested the copy could not say whether the original was genuine or not. There is no mention of the said copy or of its original in the plaint of the suit filed by the respondent. Even the date of birth given in Exh. P.W.3/1, namely, 2nd March, 1918 does not figure in the plaint. Exh. P.W. 3/1 was not filed alongwith the suit nor it was relied upon at the time of bringing the suit. It was produced at the stage of evidence and that too by a witness. Service book of the respondent bears his signatures. In the service book, his date of birth is given as "1‑1‑1915" and the age as 50 years. This service book was produced by Noor Muhammad Clerk (P.W. 2) who was summoned by the respondent to produce his service record. Learned counsel for the respondent did not raise before me any objection with regard to the mode of proof, or admissibility of, the service book. With a view to getting out of the difficulty created, for him, by the service book, it was explained by the respondent that it was signed by him before entries had been made therein. No suggestion in this behalf was made to Noor Muhammad Clerk (P.W. 2) who produced the service book. There is also no other evidence to support the respondent's plea. His said explanation is not only an afterthought but also without substance. I am, therefore, not inclined to accept it. Entries in the service book are supported by the service sheet of the respondent also. It is not the case of the respondent that he had ever disputed the correctness of his age as given in his service record, at any time before the notice of retirement was given to him. It appears that on getting the said notice, he thought of getting the period of his service extended by filing a suit and then managed to prepare copy of birth entries, Exh. P.W. 3/1 with a view to using it as supporting evidence. I am, therefore, not inclined to rely on the said copy.

6. The petitioner also examined Dr. Abdul Qadir (P.W. 1) to state that he was 54 years of age on 15th April, 1972 when he examined the respondent to determine his age. It was frankly admitted by Dr. Abdul Qadir that he had given his age in view of his appearance. It was stated by him that there was possibility of variation of two or three years. According to the own statement of Dr. Abdul Qadir, therefore, the respondent could be aged 57 years on the date of his examination, that is, 15th April, 1972, and if that was so, his year of birth would be 1915 as recorded in his service book. The evidence of Dr. Abdul Qadir is, therefore, of little help to the respondent.

7. Before proceeding further I would like to point out that the respondent did not produce copy of his birth entries as appearing in the register maintained by the health department or the municipal authorities. No explanation was furnished by him for this shortcoming on his part.

8. In view of his service record, very heavy onus lay on the respondent to establish that the age given in the said record was not correct. He has, however, miserably failed to discharge that onus. I am, therefore, unable to uphold the finding of the learned Additional. District Judge to the effect that the correct date of birth of the respondent was 2nd March, 1918 and not 1st January, 1915. In this view of the matter, judgment and decree under revision are not sustainable.

9. Resultantly, I accept this civil revision, set aside the judgment and decree passed by the learned appellate Court and restore the judgment and decree of the learned trial Court whereby the respondent's suit was dismissed. There shall be no order as to costs.

H . B . T . Revision petition accepted.

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