R Ravindra vs The Chairman
2022 Latest Caselaw 8369 Kant

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     IN THE HIGH COURT OF KARNATAKA, BENGALURU

         DATED THIS THE 8TH DAY OF JUNE, 2022

                          BEFORE

     THE HON'BLE MR. JUSTICE S.R.KRISHNA KUMAR

               R.F.A.No.1147 OF 2006 (DEC)
BETWEEN

R.RAVINDRA
S/O.R.V.RAMAKRISHNA REDDY
AGED ABOUT 25 YEARS
RESIDING AT NO.2004
H.I.G. QUARTERS, IV "B" CROSS
YELAHANKA NEW TOWN
BANGALORE-560 064
                                               ...APPELLANT
(BY SRI.C.H.JADHAV, SENIOR ADVOCATE FOR
    JADHAV LAW ASSOCIATES)

AND

1.     THE CHAIRMAN
       KARNATAKA SECONDARY EDUCATION BOARD
       6TH CROSS, MALLESHWARAM CIRCLE
       BANGALORE-560 003

2.     THE UNDER SECRETARY
       GOVT. OF KARNATAKA
       EDUCATION DEPARTMENT
       DR. AMBEDKAR VEEDHI
       VIDHANA SOUDHA
       BANGALORE-560 001
                                          ...RESPONDENTS
(BY SMT.K.SHOBHA, HCGP FOR R1 & R2)

      THIS APPEAL IS FILED UNDER SECTION 96 OF CPC AGAINST
THE JUDGMENT AND DECREE DATED 18.03.2006 PASSED IN
O.S.NO.6335/1999 ON THE FILE OF THE XVI ADDL. CITY CIVIL AND
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SESSIONS JUDGE, BANGALORE CITY, DISMISSING THE SUIT FOR
DECLARATION AND INJUNCTION AND ETC.

     THIS APPEAL COMING ON FOR HEARING, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:


                        JUDGMENT

This appeal by the unsuccessful plaintiff in

O.S.No.6335/1999 is directed against the impugned judgment

and decree dated 18.03.2006 passed by the XVI Additional

City Civil Judge, Bengaluru (for short "the trial Court"),

whereby the said suit filed by the appellant-plaintiff for

mandatory injunction directing the respondents-defendants to

change the date of birth on the SSLC marks card of the

appellant from 17.05.1973 to 18.09.1974 and for further

direction to the respondents-defendants to issue a fresh marks

card incorporating the date of birth of the appellant as

18.09.1974 was dismissed by the trial Court.

2. Heard the learned Senior counsel for appellant,

learned HCGP for the respondents and perused the material

on record.

3. The material on record discloses that the

appellant-plaintiff instituted the aforesaid suit inter alia

contending that he was born at St. Marthas Hospital,

Bangalore on 18.09.1974 and the hospital having recorded the

said date of birth, informed the Corporation Authorities about

the same, who recorded the said date of birth of the appellant

in their records as per Section 12 of the Registration of Births

and Deaths Act, 1969, pursuant to which, a birth certificate

was issued by them in favour of the plaintiff showing the date

of birth as 18.09.1974.

4. It was contended that at the time of admitting the

appellant to the Govt. Primary School at Hosadurga,

Chitradurga District, the school authorities wrongly/incorrectly

entered the date of birth of the appellant as 17.05.1973

instead of 18.09.1974 due to oversight and inadvertence and

this fact was not noticed by the appellant's parents. The said

mistake committed by the school authorities was carried

forward even to the High School at Bangalore and

consequently, the SSLC marks card issued by respondent

No.1-Board also carried the date of birth wrongly as

17.05.1973 instead of the actual date of birth, which was

18.09.1974. It was contended that despite repeated request,

the respondents-authorities did not make necessary

corrections to the SSLC marks card, due to which the

appellant got issued a lawyer's notice dated 10.06.1999 and

since the requests made by the appellant was not complied

with and since wrong date of birth shown in the SSLC marks

card would affect the appellant's employment, future

education and all service benefits, the appellant instituted the

said suit before the trial court.

5. The defendants contested the suit and denied the

plaint averments inter alia contending that the suit was not

maintainable in view of non-issuance of the notice under

Section 80 CPC read with Sections 37 and 38 of the KSEE

Board Act, 1996. It was contended that the SSLC marks card

of the appellant having undisputedly been issued in the year

1988, the suit filed in the year 1999 was barred by limitation.

It was also contended that having regard to the fact that the

SSLC marks card was issued based on the instructions given

by the appellant and his father, the appellant was estopped

from seeking change of date of birth contained in the SSLC

certificate. It was also contended that the suit without

impleading the regional Secretary and Ex-offiicio Joint Director

of Public Instructions, KSEE Board as well as the Deputy

Director of Public Instructions was bad for non-joinder of

proper and necessary parties. Under these circumstances, the

defendants sought for dismissal of the suit.

6. After hearing, the trial Court framed the following

issues:-

(1) Whether the plaintiff proves that his date of birth is 18-09-1974?

(2) Whether the plaintiff proves that he is entitled to have a relief of mandatory injunction directing the defendants to correct his date of birth in SSLC marks card one from 17.05.1973 to 18.09.1974?

(3) Whether the defendants prove that the suit of the plaintiff is bad for want of statutory notice under Section 80 of CPC and under Section 37 and 38 of KSEE Board Act of 1966?

(4) Whether the suit is bad for non-joinder of necessary parties?

(5) Whether the suit is barred by time? (6) To what order or decree?

7. The appellant examined himself as PW.1 and

Exs. P1 to P5(a) were marked on his behalf. No oral or

documentary evidence were adduce on behalf of the

defendants.

8. After hearing the parties, the trial Court

proceeded to answer issue No.4 in favour of the appellant and

thereby coming to the conclusion that the suit was not bad for

non-joinder of parties. On issue Nos.1 to 3 and 5, the trial

Court came to the conclusion that the appellant had failed to

establish that his date of birth is 17.05.1973 and that the suit

was bad for non-issuance of notice prior to its institution and

that the suit was also barred by limitation and consequently,

the appellant was not entitled to any relief and proceeded to

dismiss the suit by passing the impugned judgment and

decree, aggrieved by which, the appellant is before this Court

by way of the present appeal.

9. In addition to reiterating the various contentions

urged in the appeal and referring to the material on record,

learned Senior counsel for the appellant submitted that the

impugned judgment and decree passed by the trial court is

contrary to the material on record and opposed to the facts

and probabilities of the case and the same deserves to be set

aside in the present appeal. In support of his contentions,

reliance is placed on the following decisions:-

(i) Shakti Bhog Food Industries Limited vs. Central Bank of India and Another - (2020) 17 SCC 260 and

(ii) CIDCO vs. Vasudha Gorakhnath Mandevlekar - (2009) 7 SCC 283.

10. Per contra, learned HCGP would support the

impugned judgment and decree and submit that there is no

merit in the appeal and that the same is liable to be dismissed.

In support of her contention, reliance is placed on the decision

of the Apex Court in the case of Karnataka Rural

Infrastructure Development Limited vs. T.P.Nataraja &

Others - Civil Appeal Nos.5720/2021 and 5721/2021.

11. The following points arise for consideration in the

present appeal:-

(i) Whether the trial court was justified in answering

issue No.1 against the appellant thereby coming to the

conclusion that his date of birth was not 18.09.1974?

(ii) Whether the trial court was justified in holding that

the suit was barred by limitation and that the appellant was not

entitled to the relief of mandatory injunction?

(iii) Whether the trial court was justified in coming to the

conclusion that the suit was bad for want of issuance of

statutory notice under Section 38 of the KSEE Board Act,

1966?

Re-Point No.1:-

12. A perusal of the impugned judgment passed by the

trial court will indicate that the claim of the appellant that he

was born on 18.09.1974 was rejected by the trial court

summarily without assigning any reasons, much less, cogent

or valid reasons to disbelieve the oral and documentary

evidence adduced by the appellant. In this context, the

unimpeached, unchallenged and uncontroverted evidence of

the plaintiff, in particular, Ex.P1 - Horoscope, Ex.P2 - birth

certificate issued by the BBMP, Ex.P3 - the Hospital

certificate issued by St.Marthas Hospital and Ex.P4 -

Intimation given by the hospital to BBMP coupled with the fact

that the respondents had not adduced any rebuttal evidence,

clearly establish that the appellant had successfully proved

that he was born on 18.09.1974.

12.1 Though, it is sought to be contended that the date

mentioned in the SSLC Marks Card as 17.05.1973 is the

correct date of birth of the appellant, the said contention

cannot be accepted, particularly when it is that very date that

is sought to be rectified in the instant suit. Further, as held by

the Apex Court in CIDCO's case (supra), entries in the

Register of Births and Deaths maintained by statutory

authorities viz., BBMP raise a presumption of correctness and

such entries which were admissible in evidence under Section

35 of the Evidence Act would prevail over entries made in the

school register. Under these circumstances, I am of the

considered opinion that the trial court committed a serious

error in coming to the conclusion that the appellant had not

established that his date of birth was 18.09.1974 and the

finding recorded in this regard deserves to be set aside by

holding that the appellant was born on 18.09.1974 and not on

17.05.1973 as entered in the SSLC marks card.

12.2 The judgment of the Apex Court in T.P.Nataraja's

case supra, relied upon by the respondents is clearly

distinguishable on facts and the same is inapplicable to the

facts of the instant case.

Point No.1 is accordingly answered in favour of the

appellant.

Re-Point No.2:-

13. The trial court came to the conclusion that since the

SSLC marks card was handed over on 25.04.1988 to the

appellant, the suit filed by him in the year 1999 was barred by

limitation. In this context, the trial court held that the suit ought

to have been filed within a period of three years from 1988;

however, the provision of law which renders the suit barred by

limitation has not been referred to by the trial court. So also,

the trial court has misdirected itself in holding that the suit was

one for declaration without appreciating that the only relief

sought for by the appellant was for mandatory injunction

directing the respondents to change the date of birth from

17.05.1973 (as incorrectly shown in the SSLC marks card) to

18.09.1974 (as correctly shown in the birth certificate and

hospital records).

13.1 In other words, rather than seeking declaration

about the actual date of birth, appellant had specifically

asserted that he was born on 18.09.1974 as per birth

certificate and hospital records, which were recorded much

prior to 1988 when the SSLC certificate was issued and it was

only at the time of joining service that the appellant realised

the said discrepancy in the SSLC certificate and has filed the

suit seeking rectification by way of mandatory injunction, to

which Article 58 of the Limitation Act was not applicable. It is

therefore clear that the suit filed by the plaintiff immediately

after non-compliance by the respondents to the notice dated

10.06.1999 issued by him was within time and not barred by

limitation as wrongly held by the trial court.

13.2 It is also relevant to state that in the absence of

any relief of declaration, Article 58 of the Limitation Act was

not applicable and the residuary provision in Article 113 would

be applicable and the relief of mandatory injunction arising out

of recurring cause of action, in the light of the specific

contention of the appellant that he was constrained to file the

suit since the respondents did not comply with his notice at

Ex.P5 dated 10.06.1999, the suit filed on 17.08.1999 within a

period of three years is clearly within time and not barred by

limitation as wrongly held by the trial court. Under these

circumstances, I am of the considered opinion that the trial

court completely misdirected itself in coming to the erroneous

conclusion that the suit was barred by limitation and

consequently, the said finding deserves to be set aside by

holding that the suit was not barred by limitation and was

within time. It follows therefrom that the appellant would be

entitled to the relief of mandatory injunction to correct his date

of birth in the SSLC marks card from 17.05.1973 to

18.09.1974 as stated in the birth certificate, hospital records

and other documents.

Point No.2 is accordingly answered in favour of the

appellant.

Re-Point No.3:-

14. While dealing with issue No.3 regarding issuance of

statutory notice by the plaintiff under Sections 37 and 38 of the

KSEE Board Act, 1966, the trial court came to the conclusion

that in view of Section 38(1) of the said Act, the suit was not

maintainable, since no prior notice was issued. This finding

recorded by the trial court is not only contrary to the material

on record, in particular, Ex.P5 which was issued by the

appellant on 10.06.1999, more than two months prior to

institution of the suit on 17.08.1999, but also without noticing

Section 38(2) of the said Act which clearly states that Section

38(1) does not apply to a suit for injunction; in this context, the

trial court completely erred in holding that the suit was one for

declaration which is factually incorrect, since the suit was filed

by the appellant for mandatory injunction and failure to

appreciate this has resulted in erroneous conclusion. Under

these circumstances, I am of the view that the trial court erred

in answering issue No.3 against the plaintiff and holding that

the suit was not maintainable.

Accordingly, even this point is answered in favour of the

appellant by holding that the suit filed by him was maintainable

in law.

15. In view of the aforesaid discussion, I am of the view

that the impugned judgment and decree passed by the trial

court deserves to be set aside and the suit of the plaintiff

deserves to be decreed in his favour.

16. In the result, I pass the following:-

ORDER

(i) Appeal is hereby allowed.

(ii) The impugned judgment and decree dated

18.03.2006 passed in O.S.No.6335/1999 by the XVI Addl.City

Civil and Sessions Judge, Bangalore, is hereby set aside and

the suit filed by the appellant - plaintiff is decreed as prayed

for by him.

Sd/-

JUDGE

Srl.