M N Tulujaram vs The State Of Karnataka
2023 Latest Caselaw 624 Kant

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 10TH DAY OF JANUARY, 2023

                        BEFORE

        THE HON'BLE MS. JUSTICE JYOTI MULIMANI

     WRIT PETITION No.10834 OF 2017 (GM-RES)

BETWEEN:

1.     M.N.TULUJARAM
       S/O LATE M.NARAYANA RAO,
       AGED ABOUT 60 YEARS,
       ASSISTANT MANAGER,
       SHIMOGA-DAVANAGERE & CHITRADURGA,
       DISTRICTS MILK PRODUCER'S
       CO-OP. SOCIETIES UNION LTD.,
       NO.500/1A, UPSTARIS,
       4TH MAIN ROAD,
       P.J.EXTENSION,
       DAVANAGERE - 577 002,
       R/O NO.19 'A' BLOCK,
       2ND CROSS, DEVARAJ URS LAYOUT,
       DAVANAGERE - 577 002.          ... PETITIONER

(BY SRI AKSHAY, ADVOCATE FOR
    SRI B.K.MANJUNATH, ADVOCATE)

AND:

1.     THE STATE OF KARNATAKA
       REPRESENTED BY ITS SECRETARY,
       ANIMAL HUSBANDRY & FISHERIES,
       VIDHANASOUDHA,
       BANGALORE - 560 001.

2.     THE DEPUTY COMMISSIOENR,
       CHITRADURGA DISTRICT,
       CHITRADURGA - 577 501.
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3.   THE TAHSILDAR
     & REGISTRAR OF BIRTH AND DEATH,
     DAVANAGERE - 577 002.

4.   THE MANAGING DIRECTOR
     SHIMOGGA-DAVANAGERE & CHITRADURGA
     DISTRICT MILK PRODUCER'S CO-OP.,
     SOCIETIES UNION LTD.,
     MACHENAHALLI, NIDIGE (POST)M
     SHIMOGGA - 577 002.

5.   THE MANAGING DIRECTOR,
     KARNATAKA MILK FEDERATION,
     DR. M.H.MARIGOWDA ROAD,
     BANGALORE - 560 029.
                                             ...RESPONDENTS

(BY SMT. A.R.SHARADAMBA, AGA FOR R1 TO R3;
    SRI VIVEK, ADVOCATE FOR
    SRI ABHINAV R., ADVOCATE FOR R4;
    SRI PRASHANTH B.R., ADVOCATE FOR R5)

     THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO
QUASH THE ENDORSEMENT ISSUED BY THE 4TH RESPONDENT
BEARING   NO.SHETHECHESHAO/         ADALITHA-2   /Y-06/8634/
2016-17 VIDE ANNEXURE -G DATED 31.01.2017 AND ETC.


     THIS WRIT PETITION COMING ON FOR PRELIMINARY
HEARING IN 'B' GROUP, THIS DAY, THE COURT MADE THE
FOLLOWING:

                        ORDER

Sri.Akshay., learned counsel on behalf of

Sri.B.K.Manjunath., for petitioner, Smt.A.R.Sharadamba.,

learned AGA for respondents 1 to 3, Sri.Vivek., learned

counsel on behalf of Sri.Abhinav.R., for respondent No.4

and Sri.Prashanth.B.R., learned counsel for respondent

No.5 have appeared in person.

The facts are quite simple and are stated as under:

It is stated that the petitioner was born on

09.02.1959 at Davanagere. At the time of admitting the

petitioner to the Chowkipete Primary School at

Davanagere, his date of birth in the school records was

wrongly entered as having been born on 24.06.1957.

During the year 1992 while the petitioner was searching

for old documents at his house, he found a diary wherein

he found the entry of his date of birth made by his father

in the diary shown as having been born on 09.02.1959 and

he also found the written horoscope wherein the

petitioner's date of birth was entered as 09.02.1959. When

he came to know that his date of birth was wrongly

entered in the school record as 27.06.1957 instead of

09.02.1959, he filed O.S.No.957/1993 on the file of the

Addl. Munsiff, Davanagere against the respondents 1 to 3

for declaration and mandatory injunction. The Trial Court

decreed the suit filed by the petitioner declaring that the

petitioner was born on 10.02.1959 and directed the

respondents 1 to 3 to delete the date of birth of the

petitioner which was wrongly shown as 24.06.1957 and

incorporate the actual date of birth of the petitioner as

10.02.1959.

Aggrieved by the Judgment and Decree passed by

the Trial Court, the State preferred an appeal in

R.A.No.112/1995 before the I Addl. Civil Judge (Sr.Dn),

Davanagere. After hearing the parties, the Appellate Judge

partly allowed the appeal rejecting the mandatory

injunction granted by the Trial Court and confirmed the

decree passed by the Trial Court declaring that the date of

birth of the petitioner is 09.02.1959.

It is stated that the petitioner will retire in the month

of June 2017 after attaining the age of superannuation. the

petitioner states that he made several representations to

the respondents requesting them to enter his date of birth

as 09.02.1959 instead of 24.06.1957 in his service

records. The first respondent addressed a letter to the

Managing Director, KMF, Bengaluru asking him to consider

the representation of the petitioner dated:12.09.2016

regarding his change of date of birth as per the Judgment

of the Civil Court. the fourth respondent addressed letter

to the fifth respondent on 02.12.2016 to examine

regarding correction of date of birth of the petitioner as per

the Civil Court Judgment and communicate the same to

the fourth respondent.

It is stated that the fourth respondent referred the

representation given by the petitioner for change of date of

birth from 24.06.1957 to 09.02.1959 as per the Judgment

and Decree passed in R.A.No.112/1995 for legal opinion.

The advocate sent his legal opinion to the fourth

respondent on 20.05.2016 and on the basis of his legal

opinion, the fourth respondent issued endorsement bearing

No.SHETHECHESHAO / Adalitha-2/Y-06/ 8634/2016-17

dated:31.01.2017 stating that the advocate to whom the

fourth respondent sought legal opinion has stated that

"when the relief of mandatory injunction is denied by the

Court and in law M.N.Tulujaram has no right to seek

mandatory injunction to effect change of entry as to date

of birth after lapse of three years from joining service".

The petitioner is at the fag end of his service who will be

attaining the age of superannuation in the month of June

2017 on the basis of the petitioner's incorrect date of birth

maintained in service records. Hence, the petitioner has

invoked the writ jurisdiction of this Court under Article 226

and 227 of the Constitution of India and sought the relief

to quash the endorsement bearing

No.SHETHECHESHAO/Adalitha-2/ Y-06/ 8634/2016-17

dated:31.01.2017 issued by the fourth respondent vide

Annexure-G.

Sri.Akshay., learned counsel for petitioner in

presenting his argument vehemently contended that the

fourth respondent is not justified in issuing endorsement.

Smt.A.R.Sharadamba., learned AGA for respondents

1 to 3 in presenting her argument, drew the attention of

the Court to the Judgment and Decree of the Appellate

Court at Annexure-B. Counsel submits that the petitioner

has given up his relief of mandatory injunction. Therefore,

learned AGA justified the endorsement issued by fourth

respondent. Accordingly she submits that the petitioner

has not made out any good grounds to entertain the Writ

Petition and prayed for dismissal of the Writ Petition.

Sri.Vivek., learned counsel for respondent No.4

justified the action of the fourth respondent. Counsel

further submits that the fourth respondent is the Managing

Director, Shimogga - Davanagere & Chitradurga District

Milk Producer's Co-operative Societies Union Ltd., and it is

not a party to the original proceedings, wherein the

petitioner has sought for declaration to change his date of

birth. Hence, the Judgment and Decree of the Trial Court is

not binding on him.

Counsel further submits that assuming for a while

that the Judgment passed by the Civil Court is a Judgment

in rem. In view of the fact that petitioner has given up his

relief of mandatory injunction, the petitioner cannot have

grievance. Hence, appropriate order may be passed.

Counsel Sri.Prashanth.B.R., for respondent No.5

supports the contention of learned counsel for respondent

No.4.

Heard, the contentions urged on behalf of the

respective parties and perused the writ papers and also

the Annexures with utmost care.

The only point which requires consideration is,

whether the fourth respondent is justified in issuing

endorsement at Annexure-G?

Suffice it to note that the petitioner herein filed suit

before the competent Civil Court in O.S.No.957/1993

seeking declaration and also mandatory injunction. The

Trial Court vide Judgment and Decree dated:28.11.1994

decreed the suit in toto. On appeal by the State, the

Appellate Court modified the Judgment and Decree of the

Trial Court and rejected the relief of mandatory injunction.

It is not in dispute that the Judgment and Decree of

the Appellate Court has attained finality. The petitioner has

not challenged the Judgment and Decree of the Appellate

Court.

I have carefully heard the arguments on behalf of

the Government.

Learned AGA drew attention of the Court to the

Judgment and decree of the Appellate Court.

I have perused the same with utmost care.

As could be seen from the Judgment and Decree of

the Appellate Court, petitioner has given up the relief of

mandatory injunction. Therefore, filing of petition

contending that the fourth respondent is not justified in

issuing endorsement is totally unsustainable in law.

Accordingly, the Writ Petition is dismissed.

Sd/-

JUDGE

TKN