Telangana High Court
The Additional Joint Secretary, vs Kammari Hanmantha Chary on 4 April, 2024
THE HON'BLE SRI JUSTICE SAMBASIVARAO NAIDU
SECOND APPEAL No.602 OF 2017
JUDGMENT:
The defendants in O.S.No.1357 of 2011 on the file of III Senior Civil Judge, City Civil Court, Hyderabad are appellants in this Second Appeal which is filed under Section 100 of C.P.C.
2. This appeal has been filed assailing the Judgment and decree of the 1st appellate Court in A.S.No.269 of 2012 dated 10.03.2016, by which the 1st appellate Court confirmed the Judgment and Decree granted in favour of the respondent/plaintiff.
3. As could be seen from the record, the respondent herein has filed O.S.No.1357 of 2011 before the learned Junior Civil Judge, City Civil Court, Hyderabad, seeking declaration of his date of birth as 16.09.1972 on the ground that the same was wrongly noted in his school records.
2
4. According to the averments made in the plaint filed before the trial Court, the respondent has claimed that he was born on 16.09.1972 at Niloufer hospital, Hyderabad. However, since his parents were illiterates, they got mentioned the date of birth in the school records as 06.03.1971. The respondent was employed in Bharat Dynamics Limited (BDL), Kanchanbagh, Hyderabad and was selected for the post of J.P(Fitter) and joined the service on 18.06.2009. The date of birth of the respondent was recorded in all the records based on the S.S.C marks memo. The respondent has claimed that his parents out of illiteracy mentioned the above said date of birth approximately and subsequently on realization that he was born at Niloufer hospital, Hyderabad, and having obtained the date of birth certificate from the G.H.M.C., he has filed the suit seeking declaration of his date of birth as 16.09.1972.
5. The appellants herein have opposed the claim. According to the written statement filed by the appellants 3 before the trial Court, it was claimed that the Board of Secondary Education is the examination conducting body, it used to obtain applications from the Head Master concerned along with manuscript nominal rolls and fee receipt in respect of the candidate who wanted to take the examinations. The manuscript nominal rolls will contains all the details like name, father's name, date of birth, sex, subjects offered and medium of instruction. The candidates who are admitted to the examinations will be issued with hall tickets based on the particulars contained in the manuscript nominal rolls. Permanent record will be maintained in respect of all the candidates who have registered for examination irrespective of their results.
6. The respondent herein appeared for SSC examination through ZPHS School, Shiva Nagar, Medak District. As per the school record, his dated of birth was 06.03.1971 and the same was entered in the records. The appellants have also averred in the written statement filed before the trial Court that as per 4 G.O.Ms.No.1263/Education, there was an amendment, according to which the Director of School Education is empowered to entertain and effect corrections or alterations in respect of the application for correction and alteration of date of birth, but no such application for date of birth shall be entertained after a period of three (3) years from the date of completion of the said course. They have also informed the Court that according to G.O.Ms.No.604/Education, the Commissioner for Government examination was authorized to make minor corrections viz., spelling mistakes in the S.S.C marks memo, but, date of birth shall not be corrected. Therefore, the appellants have claimed before the trial Court that the prayer for declaration of date of birth as sought for by the respondent herein cannot be granted, thereby, prayed for dismissal of the suit.
7. The trial Court framed the following issues:
1. Whether the plaintiff is entitled to relief of declaration as prayed for?
2. To what relief?5
8. During trial the respondent was examined as PW1. He has marked Exs.A1 to A5. The mother of the respondent was examined as PW2. The appellants have examined PWs 1 and 2, and got marked Exs.B1 to B5. The trial Court having appreciated the pleadings, evidence, accepted the contentions of the respondent and passed a decree, declaring the date of birth of respondent as 16.09.1972 and directed the appellants herein to correct the same in his S.S.C certificate and concerned records.
9. Being aggrieved by the said Judgment, the present appellants have filed the 1st appeal vide A.S.No.269 of 2012 before the Additional Chief Judge, City Civil Court, Hyderabad. The 1st appellate Court having re-appreciated the evidence and pleadings, dismissed the appeal under the impugned Judgment.
10. The appellants have filed the present appeal on the ground that the Judgment of the trial Court as well as 1st appellate Court is illegal, contrary to law. The case involves substantial questions of law and the non 6 consideration of material evidence on record has resulted the decree in favour of the respondent. The trial Court and 1st appellate Court failed to consider the judgments placed by the appellants before the respective Courts. The appellants have claimed that the observations made by the trial Court and 1st appellate Court on the documents produced by the appellants are incorrect.
11. The appellants have contended that both the Courts incorrectly brushed aside the mandatory provisions of Section 80 of C.P.C., merely because the said defence was not taken in the written statement filed by the appellants, in spite of the fact that there was no notice as required under Section 80 of CPC by the respondent before filing the suit.
12. They have also claimed that the trial Court and 1st appellate Court appears to have been swayed away by the questions put to the appellants and on the ground that there was no suggestion that Exs.A2 and A3 are forged and fabricated, simply passed a decree in favour of the 7 respondent, thereby, sought for setting aside the impugned Judgment and prayed for dismissal of the suit.
13. The appellants have formulated (5) substantial questions of law while filing the Second Appeal and this appeal has been admitted on all the (5) substantial questions of law, which are extracted hereunder:
1. Whether a suit without issuance of the mandatory notice as required under Section 80 of C.P.C. is maintainable in respect of any matter wherein urgency is not the sine qua non?
2. Whether, in respect of lack of defence of non issue of statutory notice under Section 80 of C.P.C., the Court is entitled to deal with the same and hold that just because the defence of non issue of notice under Section 80 of C.P.C., is not taken, there is any necessity to issue Section 80 C.P.C., notice?
3. Whether the Court can overrule the G.O.Ms.No.1263/Education dated 06.05.1961?
4. Whether the suggestion made during cross examination of PW1 can be the basis for decreeing a suit especially for relief as sought for in the present matter i.e., correction of date of birth?
5. Whether the Courts below can contradict as well as circumvent specific and categorical direction contained in G.O.Ms.No.1263/Education dated 06.05.1961 that specifically prohibit alteration of date of birth beyond the period of three years after completion of education?
14. As could be seen from the pleadings as well as the evidence adduced by both the parties, it is very clear that the respondent from the beginning has contended that 8 he was born at Nilouher hospital, Hyderabad and his date of birth has been noted in the Municipal records. However, due to illiteracy, his parents without knowing the said fact, while admitting him to the school, mentioned a wrong date of birth as an approximate date and subsequently, he came to know about this mistake and he has obtained the certificate from the G.H.M.C., and he wanted a declaration to declare his correct date of birth.
15. The appellants did not raise any dispute about the birth of the respondent herein at Niloufer hospital, Hyderabad, nor there is any averment in the written statement and the evidence produced by the appellants herein, that the date of birth of respondent was incorrectly noted in the Municipal records.
16. As rightly observed by the trial Court, it was not the case of the appellants that the date of birth certificate sought to be relied on by the respondent herein has been fabricated, nor it is their case it is a fake document. 9
17. The next contention of the respondent was, his parents out of illiteracy while admitting him to the school, mentioned a wrong date as if it is his date of birth and subsequently he realized the mistake and now wanted its correction. The evidence of PW1 and his mother who is examined as PW2 coupled with the documents marked as Exs.A1 to A5 goes to show that the correct date of birth was not mentioned in the school records and the said incorrect date of birth was mentioned in the service register of the respondent. But, it is based on the SSC marks memo.
18. The appellants have contended before the trial Court that in view of the Government Orders, which they have marked during their evidence as Exs.B1 to B3 and B5, the date of birth in the SSC marks memo cannot be corrected by the Board of Secondary Education or Commissioner who conducted the examination. The appellants did not raise any objection as to the maintainability of the suit on the ground that the 10 respondent did not issue notice as required under Section 80 of CPC.
19. It is an admitted fact that there was no notice under Section 80 of CPC got issued by the respondent. But, in the absence of specific averments and contentions by the appellants, there was no opportunity for the respondent/plaintiff to give his answer or to explain the circumstances under which he did not issue notice. In fact, it is not the case of the appellants herein that an urgent order or relief has been granted to the respondent, in the absence of notice under Section 80 of CPC. The appellants could not substantiate their contention as to how the absence of such a notice caused prejudiced to their contention.
20. The appellants sought to rely on Judgment between Government of Andhra Pradesh & Another vs. M.Hayagreev Sarma 1 for the proposition that date of birth recorded in service book on the basis of school certificate at the time of entry into service and subsequent claim for 1 1990 2 SCC 682 11 alteration after commencement of rules even on the basis of extracts of entry contained in births and deaths register maintained under Birth, Death and Marriage Registration Act, 1886 is not open.
21. The respondent relied on a Judgment between R.K.Jangra vs State of Punjab and Others 2 wherein the Hon'ble Apex Court was pleased to direct the competent authority to apply mind to material furnished by the applicant therein regarding his actual date of birth.
22. In the above stated case, the applicant filed an application for correction of date of birth which was rejected. He has approached the High Court of Judicature at Chandigarh by filing writ petition. However, the High Court has directed the applicant to approach civil Court for correction of his date of birth.
23. Being aggrieved by the said order, the applicant approached the Hon'ble Supreme Court by filing Civil Appeal and while considering the said application since the date of his retirement was very close, the Hon'ble Apex 2 2009 5 SCC 703 12 Court considered the request, and directed the concerned authorities to allow the request.
24. The respondent had also relied on another Judgment between Madan Mohan Singh and Others vs. Rajini Kant and Another 3 based on a judgment between Brijmohan Singh vs Narayan Sinha and two more judgments, the Hon'ble Apex Court held that for determining the age of a person the best evidence is of his/her parents, if it is supported by unimpeachable document.
25. In case, date of birth depicted in the school register/certificate stand belied by the unimpeachable evidence of reliable persons and contemporaneous documents viz., date of birth register of the municipal corporation, Government hospital/Nursing home etc., the entry in the school registration is to be discarded.
26. He has also relied on a Judgment between Resham Singh vs. Union of India and Another 4 3 2010 9 SCC 209 4 2007 SCC Online P&H 1117 13 wherein the High Court at Punjab and Haryana made the following observations:
It was, thus, held that where there is a conflict, between the date of birth, recorded by the competent authority under the Births and Deaths Registration Act and the school leaving certificate, primacy was to be accorded to the birth certificate issued by the authority under the Registration of Births and Deaths. It was also held that unless upon verification, the certificate issued by the Registrar of Births and Deaths, appears to be doubtful or suspicious or the Passport authority is not satisfied as to its genuineness, then alone would the Passport authority be justified in declining to effect a correction in the date of birth and directing an applicant to seek adjudication, as to his date of birth before a civil Court.
The aforementioned judgments, with which we are in respectful agreement, have correctly and succinctly delineated the powers and the jurisdiction of a Passport authority, considering an application for alternation of date of birth, based upon two contradictory documents i.e. a birth certificate issued by the Registrar of Births and Deaths and a certificate issued by an education authority.
A birth certificate is issued by a Registrar of Births and Deaths and reflects an entry extracted from the register maintained by the Registrar under the Registration of Births and Deaths Act, 1969. The aforementioned statute was enacted to provide for and regulate registration of Births and Deaths and for matters connected therewith. Section 7 thereof, requires a State government to appoint a Registrar for each area comprising the area within the jurisdiction of a municipality/panchayat or the local authority or any other area or a combination of any two or more of them. Section 16 of the Act requires every Registrar to keep in the prescribed form a register of Births and Deaths for the registration of births and deaths 14 in his area or any part thereof in relation to which, he exercises jurisdiction. A register of Births and Deaths is, thus, a public record of births and deaths that occur within the area assigned to a Registrar. The Register being a public record, presumption of truth attaches thereto and consequently to the birth certificate, reflecting an extract from the Births and Deaths register. A matriculation certificate, on the other hand, is primary evidence of the marks obtained by a candidate in a qualifying examination and the date of birth recorded as an ancillary measure. Primacy would, therefore, have to be accorded to the date of birth reflected in the birth certificate issued by the Registrar of Births and Deaths.
27. The respondent while relying on Kokilaben J.
Panchal vs. Regional Passport Officer, Ahmedabad 5 sought for dismissal of the appeal. The following was the observations made by the Hon'ble Apex Court in the above referred in the above referred Judgment:
At this stage, it is also required to be noted that normally when there is a discrepancy in the date of of birth in the certificate issued by the competent authority under the provisions of the Births and Deaths Registration Act as well as school leaving certificate, in that case, primacy is required to be given to the birth certificate issued by the Municipality and the competent Government Authority under the Births and Deaths Registration Act, unless it is on verification of such document, a doubt is created and / or authority is not satisfied with regard to the genuineness of the same. It is also required to be noted that when there is dispute with regard to genuineness of the date of birth and / or certificate, then, certainly the
5 2006 SCC Online Gujarat 31 15 passport authority can refuse to make necessary correction and / or effect change in the passport with regard to the date of birth and/or place of birth is concerned, and may insist for order from the Court i.e. declaratory order from the Civil Court but for that, a petition under Article 226 of the Constitution of India is not maintainable as further evidence is to be led with regard to correct date of birth and on appreciation of evidence, declaratory order is required to be passed and this Court in exercise of the powers under Article 226 of the Constitution of India would not like to enter into the disputed question of facts. Therefore, for the aforesaid purpose, the passport authority is required to entertain the application, hold necessary enquiry and consider the same and if not satisfied then, to give reasons for not accepting the same.
28. Even though the appellants have contested the suit on other technical grounds i.e., power of the appellants to correct the date of birth etc., was never their case that the respondent herein has manipulated the records. The respondent has produced oral evidence of his mother and documents including the date of birth certificate from the concerned Municipal authorities which clearly shows his date of birth as 16.09.1972. Therefore, in the light of the Judgments relied on by the respondent herein, as the evidence of PWs 1 and 2 coupled with the documents clearly indicates that a mistake was crept while 16 admitting the respondent in the school, is entitled to seek declaration for correction of date of birth. The contentions raised by the appellants about the failure and giving a notice under Section 80 CPC., cannot be a ground for dismissal of the suit, because no prejudice was caused even in the absence of such a notice. Therefore, there are no grounds to set aside the impugned judgment or to dismiss the relief sought for by the respondent, as such the appeal is liable to be dismissed.
29. In the result, the appeal is dismissed. No costs. Pending miscellaneous applications, if any, shall stand closed.
___________________________________ JUSTICE SAMBASIVARAO NAIDU Date:04.04.2024 PSSK