Delhi High Court
M.L. Aggarwal vs National Thermal Power ... on 10 February, 1993
Equivalent citations: 49 (1993) DLT 735
Author: P Nag
Bench: P Nag
JUDGMENT
P.N. Nag, J.
(1) By this petition the petitioner has challenged the order dated 12/09/1985, passed by Shri Shiv Charan, Sub Judge,1st Class, Delhi, whereby the application of the plaintiff under Order 6 Rule17 seeking amendment to the plaint was rejected.
(2) The relevant facts of the case are that the petitioner/plaintiff has sought amendment to the plaint to the effect that during the pendency of the suit the plaintiff has retired from the service of defendant No. 1 on 30thApril, 1985 and that plaint is required to be amended by including the relief of declaration to the effect that the retirement of the plaintiff is illegal. The plaintiff has filed a suit for declaration and mandatory permanent injunction against defendant No. 1 that he should be retired on the basis of correct date of birth i.e. 4th Feb., 1928 on the ground that he was born on 4th Feb.,1928 at Dharam Kot, District Ferozepore, Punjab and his date of birth has been wrongly recorded in the service record as 5/04/1927. According to the plaintiff, the plaintiff has served with the office of the Accountant General of Punjab for more than 28 years continuously and absorbed thereafter with the defendant Corporation. However, the date of birth of the petitioner in the service record in the office of the Accountant General of Punjab as well as the defendant Corporation Was entered as 5/04/1927inadvertantly and, therefore, it requires correction and it should be recorded as 4/02/1928.
(3) The trial Court after having examined the record had held that plaintiff after serving for more than 28 years in the office of the Accountant General, Punjab and was taken by defendant No. 1 in May, 1979. His date of birth was accepted as 5/04/1927 throughout his career and the present suit filed by the plaintiff is highly belated. Furthermore the plaintiff has already retired from service after attaining the age of super annuation on 30/04/1985 and his representation was also dismissed in 1989 itself.There is no cause of action arises in favor of the plaintiff. Therefore, the amendment is not necessary for determining the question in controversy and the trial Court has rejected the plaint under Order 7, Rule 11 of the Code of Civil Procedure.
(4) Having regard to the facts and circumstances of the case and also the finding given by the trial Court, in my opinion, in revision no interference is called for, Even otherwise, as held by me in Tarun Chopra and Others v. Union of India and Others, 1992 (2) Delhi Lawyer 250, the rejection of the plaint under Order 7, Rule Ii of the Code of Civil Procedure is deemed to be included in the definition of the decree under Section 2(2) of the Code of Civil Procedure. The appeal would lie against the impugnedorder. Therefore, the appropriate remedy for the plaintiff would be to invoke the appellate jurisdiction. The revision is not maintainable.Dismissed.
