Punjab-Haryana High Court

Jai Bhagwan vs Ambala Central Coop.Bank Ltd' on 14 May, 2024

                                   Neutral Citation No:=2024:PHHC:066861



     IN THE HIGH COURT OF PUNJAB AND HARYANA AT
                    CHANDIGARH

                                              RSA-2486-2000 (O&M)

                                              Reserved on 07.05.2024
                                              Pronounced on 14.05.2024
Jai Bhagwan (since deceased) through his LRs                 ....Appellant(s)
                                   Versus
The Ambala Central Coop. Bank Ltd. and another               ....Respondents

CORAM: HON'BLE MR. JUSTICE NAMIT KUMAR

Present: None for the appellant(s).

Mr. R.K. Malik, Senior Advocate with Mr. Sandeep Dhull, Advocate for respondent No.1.

Mr. Arun Bakshi, Advocate for respondent No.2.

NAMIT KUMAR J.

1. The appellant/plaintiff has filed the instant appeal against

judgment and decree dated 28.01.2000, whereby learned Additional

District Judge, Ambala, while allowing the appeal filed by the

respondent/defendant - The Ambala Central Cooperative Bank Limited

(for short 'the Bank'), has set aside the judgment and decree dated

25.11.1998 passed by learned Civil Judge (Junior Division), Ambala,

whereby suit for declaration filed by the appellant/plaintiff was decreed.

Parties to the lis are hereinafter shall be referred to by their original

position in the suit.

2. Brief facts of the case are that the plaintiff filed a suit for

declaration to the effect that his date of birth i.e. 30.06.1950 as shown in

the Matriculation Certificate be declared as incorrect and be corrected as

21.07.1953 on the basis of the Birth Certificate (Ex.P1) issued by the

Additional District Registrar (Birth & Death)-cum-District Health

Officer, Ambala. The case set up by the plaintiff in the suit was that he

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was working as Junior Accountant with defendant No.2-The Ambala

Central Cooperative Bank Limited and was posted at Raipur Rani,

District Ambala. He was born on 21.07.1953 at Village Kesri, District

Ambala. Name of the father of the plaintiff was Munish Ram and that of

mother Smt. Saraswati. The name of the plaintiff was recorded as

Jagdish Chand in the register maintained by the Chowkidar of Village

Kesri at the time of his birth, however, at the time of Naam Karan

Ceremony, the name of the plaintiff was changed to Jai Bhagwan. No

other son except the plaintiff was born to his parents. The father of the

plaintiff was an illiterate person and by approximation got recorded his

date of birth as 30.06.1950 in the school and the said error was carried

out in the Matriculation Certificate issued by defendant No.1-Punjab

University, Chandigarh. When he obtained an attested copy of his date

of birth Certificate from the office of Additional District Registrar (Birth

& Death)-cum-District Health Officer, Ambala on 22.01.1992 then he

came to know about his correct date of birth to be 21.07.1953.

Thereafter, he issued a letter dated 31.01.1992 to defendant No.2 for

correcting his date of birth but to no avail. Accordingly, he filed the suit

for declaration.

3. Defendant No.1 was proceeded against exparte as no one

appeared on its behalf despite service. Defendant No.2 contested the

claim of the plaintiff by filing written statement in which various

preliminary objections were taken and it was also stated that the suit of

the plaintiff was time barred. On merits, it was pleaded that at the time

of joining of service, the plaintiff submitted his Matriculation Certificate

which showed his date of birth to be 30.06.1950 and therefore, after a

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long period, the plaintiff is stopped from challenging his date of birth.

The present suit has been filed only to get more benefit of service.

Thereafter, the plaintiff filed replication in which plea taken in the

written statement by defendant No.2 were denied and those taken in the

plaint were reiterated and on the basis of said pleadings, the following

issues were framed :-

1. Whether the plaintiff is entitled to the declaration, as prayed for ? OPP.

2. Whether the plaintiff has suppressed the material facts from the Court, if so its effect ? OPD

3. Whether the suit is time barred ? OPD

4. Relief.

4. The learned trial Court vide its judgment and decree dated

25.11.1998 decreed the suit of the plaintiff by recording the following

finding :-

"12. Having heard the arguments and perusing record of the case carefully, I am of the view that correct date of birth of the plaintiff is 21.7.53 and therefore, the plaintiff is entitled to the desired relief. It has come in the evidence of PW1-Deva Dass and PW2-Norata Ram that two children were born to the parents of the plaintiff of which one was the plaintiff and the other was Smt. Kailasho, his real sister. The testimony regarding two children of the parents of plaintiff was not challenged by the defendants in their cross-examination because no suggestion was put to them in this regard and therefore, I shall proceed with the assumption that only one male child i.e. plaintiff was born to his parents. Perusal of the date of birth certificate Ex.P1 shows that one male child was born to Munshi Ram on 21.7.53 and the same pertains to the plaintiff alone. The plaintiff has clearly pleaded in the

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plaint that at the time of birth his name was entered as Jagdish Chand by Chowkidar of the village and the same was lateron changed to Jai Bhagwan and this ascertain of the plaintiff stands duly proved from the oral evidence led by him in this regard. In this view of the matter, it is held that correct date of birth of the plaintiff is 21.7.53 and not 30.6.50, as recorded in his service record."

5. On issue No.3, relating to as to whether the suit is time

barred, the learned trial Court opined as under :-

"16. It has been laid down by our own Hon'ble High Court in the judgment reported as State of Punjab Vs. Jaswant Singh 1989 (1) LLR 49 that Civil Suit after a period of two years from the date of entry in service is not barred by time and an employee can get his date of birth corrected after that period. In view of above, issue No.1 is decided in favour of the plaintiff and issue No.3 is decided against the defendants."

6. Aggrieved by the abovesaid judgment and decree passed

by the trial Court, defendant No.2 filed an appeal before the learned

lower Appellate Court which was accepted vide judgment and decree

dated 28.01.2000 passed by learned Additional District Judge, Ambala

by recording the following finding :-

"12. Before entering into the factual controversy, it is pertinent to mention here that suit was filed by the plaintiff on 13.3.92 for correct of date of birth. It is also mentioned to point out that plaintiff has not taken any step to have his date of birth correct before filing the suit. It has been held by our Hon'ble Supreme Court in Burn Standard Co. Ltd & others versus Shri Dinbandhu Majundar and another : JT 1995(4) SC 23 that ordinarily court should not exercise in discretion in entertaining a petition filed by an employee of

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the Government towards the fag end of his service seeking correction of his date of birth entered in his service record. The case of the plaintiff is that correct date of birth is 21.7.53, but it was wrongly entered in his matriculation certificate and in his service record as 30.6.50. The only evidence, on which plaintiff seeks to place reliance, is copy of birth certificate Ex. P-1, issued by Additional District Registrar (Birth and Death)-cum-District Health Officers Ambala. The entries recorded in such certificate are material. The person in whose regard it is produced, is connected with the same. In Ex. P-1, the name of the person to whom it belongs, is Jagdish, whereas name of the effected person, is Jai Bhagwan. To prove, it only belongs to him besides himself, Jai Bhagwan has examined two witnesses in his support namely Deva Dass as PW1 and Narata Ram as PW2, who both have deposed that Jai Bhagwan's Childhood's name was Jagdish and he was only son born to his parents besides his sister Kailasho but they both have failed to face cross- examination and they have badly failed to set up regarding the claim, association and familiarity with the plaintiffs family because they both have failed to tell the age of parents of the plaintiff, date of marriage and the exact date of birth of that child and about the change of name of plaintiff in Namkaran Sanskar. So, it is difficult to rely upon their deposition. Now remains the plaintiff alone, who is interested one being plaintiff in suit. He has not bothered to examine his other relative, who could have the best knowledge of his birth and his childhood's name and change of the same in his Namkaran Sanskar. He has not led any such evidence and he has withheld the same assigning good cause. So, a legal inference for the same is required to be drawn against him and he is not connected with Ex. P-1 that his birth entry belongs to him. Ignoring

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this aspect even if we take it with another angle i.e. mother, father and sister have already expired and for sake of arguments, it is believed that this birth entry Ex. P-1 belongs to him and when he passed his matriculation in April, 1969 and matriculation certificate is recorded his date of birth as 30.6.50 and then he joined the service somewhere in 1971 on the basis of his date of birth in his matriculation certificate and till 1992, he availed this age for getting his employment and other benefits till filing of the suit. So now, rule of estoppel operates against him. In this context, I am fortified with the observations made in Division Bench authority i.e. Vaidyanath Pd. Sinha Versus The State of Bihar and others 1983 (I) SLR (PATNA) 613 and authorities i.e. Johan Massih Versus State of J & K and others 1999 (4) SLR (JAMMU AND KASHMIR) 352 and Union of India Versus Ram Sula Sharma 1996(2) SLR (SC)1 6. In view of the same, findings recorded by learned trial court require interference as same legally and factually are reversible. So appeal preferred is held merited and same is accepted and judgment and decree passed by learned trial court is set aside and the suit of the plaintiff is dismissed with costs. Necessary decree sheet be drawn accordingly and appeal file be consigned to record room."

7. During the pendency of the instant appeal, the

appellant/plaintiff has unfortunately died on 18.07.2015 and his LRs

have been brought on record vide application bearing CM No.14097-C-

2023 which was allowed vide order dated 08.01.2024. No one appeared

on behalf of the LRs of the appellant on 08.01.2024 and even today

there is no representation on their behalf.

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8. Learned Senior Counsel for respondent No.1 assisted by

learned counsel for respondent No.2 has supported the judgment and

decree dated 28.01.2000 passed by the learned lower Appellate Court

and submits that the appellant/plaintiff cannot be allowed to change his

date of birth at a belated stage as he joined respondent No.1-Bank in the

year 1971 and filed the suit on 13.03.1992 i.e. after a period of about 21

years. Therefore, the present appeal may be dismissed.

9. I have heard learned counsel for the respondents and gone

through the relevant record with their able assistance.

10. The present appeal was admitted on 31.03.2003.

Admittedly, the date of birth of the appellant - plaintiff as 30.06.1950

was recorded in his service record on the basis of his Matriculation

Certificate submitted by him and he stood retired from service, on

attaining the age of superannuation, on 30.06.2008. There is nothing

wrong in the finding recorded by the learned lower Appellate Court to

the effect that on the basis of his date of birth as recorded in the

Matriculation Certificate as 30.06.1950, he joined the service in the year

1971 and till 1992 i.e. for a period of 21 years, he availed this age for

getting his employment and other benefits and later on while relying

upon various judgments, the Lower Appellate Court accepted the appeal

preferred by defendant No.2 and set aside the judgment and decree

dated 25.11.1998 passed by the learned trial Court. Even otherwise

Matriculation Certificate is an authentic document to prove the actual

date of birth and the certificate issued by the Additional District

Registrar (Birth & Death)-cum-District Health Officer, Ambala, in

which the name of the plaintiff - appellant has been recorded as

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Jagdish, cannot be accepted to be an authentic document and cannot be

given precedent over and above the Matriculation Certificate. Further

the suit filed by the plaintiff is hopelessly time barred as he joined the

service in the year 1971 and filed the suit on 13.03.1992 i.e. after a

period of about 21 years.

11. No other point has been urged. No question of law,

muchless substantial question of law arises for consideration in the

present appeal.

12. In view of the above, I find no reason to interfere with the

judgment and decree dated 28.01.2000 passed by learned Additional

District Judge, Ambala. Accordingly, the present appeal, being devoid

of merit, is hereby dismissed.

13. Pending application, if any, shall stands disposed of

accordingly.




                                                       (NAMIT KUMAR)
14.05.2024                                             JUDGE
kothiyal
               Whether speaking/reasoned:               Yes/No
               Whether reportable:                      Yes/No




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