Bangalore District Court
Sri.Shiva Murthy.G vs ) The Head Master on 7 April, 2022
KABC010094012021
Govt.of Karnataka TITLE SHEET FOR JUDGMENT IN SUITS
Form No.9(Civil)
Title Sheet for
Judgment in suits
(R.P.91)
IN THE COURT OF THE VI ADDL. CITY CIVIL & SESSIONS JUDGE
AT BENGALURU CITY
(CCCH.11)
Dated this the 7th day of April 2022
PRESENT: Sri. Rama Naik, B.Com., LL.B.,
(Name of the Presiding Judge)
O.S.NO.2641/2021
PLAINTIFF SRI.SHIVA MURTHY.G
S/o.late Sri.Govindaswamy
Aged about 45 years
R/at No.111, Poorna Apartments
RMS Layout, Sanjay Nagar
RMV 2nd Stage, Bengaluru -560 094.
[By Pleader Sri.Subramani.H]
/Vs/
O.S NO.2641/2021
2
DEFENDANTS 1) THE HEAD MASTER
Mercy English School
Sanjaynagar
Bengaluru -560 094.
2) THE HEAD MASTER
Narayana E techno School
Cholanayakanahalli
R.T.Nagar, Bengaluru -560 032.
[Exparte]
3) THE BLOCK EDUCATION OFFICER
Education Department
Malleshwaram 18th Cross
Near MLA College
Bengaluru - 560 001.
4) COMMISSIONER OF PUBLIC
INSTRUCTIONS
N.T. Road
Bengaluru -560 001.
5) THE DEPUTY DIRECTOR OF
PUBLIC INSTRUCTIONS
Educational Department
Bengaluru - 560 001.
[By Pleader Smt.Shantha B. Mullur -
I ADGP]
Date of Institution of the suit : 16.04.2021
Nature of the Suit : Declaration
Date of commencement of recording
of evidence : 05.10.2021
O.S NO.2641/2021
3
Date on which the Judgment was
pronounced : 07.04.2022
Year/s Month/s Day/s
Total Duration : -- 11 21
(RAMA NAIK)
VI ADDL.CITY CIVIL & SESSIONS JUDGE
BENGALURU CITY
JUDGMENT
Suit is filed by Plaintiff to direct Defendants to incorporate his son's name as 'NIKESH KAVAN PASUPALA' in the school records of his son.
2) In brief, Plaintiff's case is that his son completed 4th standard in March 2019 and now, he is studying 9th standard. In his school records, his name has been entered as 'Chinmaya S. Murthy'.
O.S NO.2641/2021 4
3) It is stated that Plaintiff intend to change the name of his son as 'Nikesh Kavan Pasupala' as per his own will and wish.
4) It is stated that Plaintiff sworn in an affidavit dated 20.09.2019 regarding change of name of his son and took paper publication in 'Hosa Diganta' Kannada daily newspaper dated 20.02.2020.
5) It is stated that, after change of name, Plaintiff approached the school authority with a request to change the name of his son in his school records and even legal notice dated 30.12.2019 was issued, calling upon them to change the name of his son in his school records. Despite service of notice, Defendants evaded to comply with the request. Hence, prays for decree.
6) Summonses issued to Defendants were duly served. Defendants No.3 to 5 appeared through I Additional District Government Pleader [I ADGP].
O.S NO.2641/2021 5 Defendants No.1 and 2 did choose not to appear and hence, they were placed ex parte.
7) Defendants No.3 to 5, in their written statement, state that suit filed by Plaintiff is barred by limitation as the same has been filed after a lapse of considerable time.
8) It is stated that suit is bad for non-joinder of necessary party and same is liable to be dismissed.
9) It is stated that suit has been filed against the officials of the Government without arraying the Government as party to suit and therefore, suit is not maintainable for non-compliance of the provisions of Order XXVII Rule 5-A of the Code of Civil Procedure, 1908 [CPC].
10) It is stated that Plaintiff has not made his son as party to the suit and therefore, suit is not O.S NO.2641/2021 6 maintainable in view of non-compliance of Order XXXII Rule 1 of CPC.
11) It is stated that suit has been filed for direction without seeking declaration as to change of name and the same is not maintainable in view of Order VII Rule 11 of CPC.
12) It is stated that, as per Circular issued by the Commissioner of Education Department, there is no provision for change of name of student in school records.
13) It is further sated that procedure for change of name by swearing to an affidavit and by taking paper publication has not been followed.
14) It is stated that there is no cause of action to file this suit. Hence, pray for dismissal of suit.
O.S NO.2641/2021 7
15) Issues that have been framed by this Court are as under :
1) Does Plaintiff prove that Plaintiff has changed name of his son from "CHINMAYA.S.MURTHY" to "NIKESH KAVAN PASUPALA"?
[Recast vide Order dtd.07.04.2022]
2) Do Defendants No.3 to 5 prove that suit filed by Plaintiff is barred by limitation?
3) Do Defendnats No.3 to 5 prove that, in view of Circular issued by the Commissioner of Education Department, there is no provision to change the name of student in school records?
4) Do Defendants No.3 to 5 prove that suit filed by Plaintiff is bad for non-joinder of necessary parties?
5) Do Defendants No.3 to 5 prove that Plaintiff ha no cause of action to file this suit?
6) What Order or Decree?
16) Plaintiff has got examined as PW.1 and got marked Exs.P.1 to P.16 in support of his case. Defendants No.3 to 5 have chosen not to lead their evidence.
O.S NO.2641/2021 8
17) Heard learned Counsel for Plaintiff and learned I ADGP for Defendants No.3 to 5. Perused the records.
18) My findings on the above Issues are :
Issue No.1 - Does not arise Issue No.2 - Does not arise Issue No.3 - In Negative Issue No.4 - In Affirmative Issue No.5 - Does not arise Issue No.6 - As per final order, for the following :
REASONS
19) Issue No.3 : Defendants No.3 to 5 contend that, in view of the Circular issued by the Commissioner of Education Department, it is not permissible to change the name of student in school records.
O.S NO.2641/2021 9
20) Plaintiff seeks direction to Defendants to change the name of his son as "NIKESH KAVAN PASUPALA" in his school records.
21) Plaintiff has deposed as PW.1 reiterating the facts stated in plaint. Plaintiff has produced office copy of legal notice; postal receipts; acknowledgments; RPAD with notice; affidavit sworn in by him; paper pubication and endorsement issued by police, which are marked as Exs.P.1 to P.16.
22) In Gunda Naika P.S. Vs. The State of Karnataka and others [RFA No.322/2013 (DEC), decided on 10.12.2013], the Hon'ble High Court of Karnataka was pleased to hold that the only pre-requirement for effecting the change of name in the educational records by the Deputy Director of Public Instructions is the obtaining of the decree from the competent Civil Court. Para-12 of the Judgment (supra) reads as follows :
O.S NO.2641/2021 10 "12. The trial court's reasoning that the appellant has not followed the procedure prescribed by the State and the Central Government is also not tenable. The respondents are in no position to point out any statutory provision or rule or Government order or circular prescribing the procedure for the change of name. On the other hand, the perusal of the circular dated 02/05/2000, shows that, the only pre-requirement for effecting the change of name in the educational records by the Deputy Director of Public Instructions is the obtaining of the decree by the applicant at the hands of the Competent Civil Court".
23) In Smt.Dorasanamma Vs. State of Karnataka (RFA No.284/2014 (DEC) decided on 02.09.2016), the Hon'ble High Court of Karnataka was pleased to hold that there need not be a mistake in furnishing the name while admitting into the Educational Institution and the name can be changed according to the wish of the candidate. Para-9 of the Judgment (supra) reads thus :
"9. The appellant filed a suit seeking for declaration, declaring her changed name as Divya.G instead of Dorasanamma. The change of Name Act provides that name of a student up to secondary level also can be changed by getting judgment and decree from the jurisdictional court. Without the decree passed by the Competent court, the name cannot be changed in the school records. When the student attains majority and if he/she has an intention to change O.S NO.2641/2021 11 his/her name, the intention must be disclosed through an affidavit sworn to before the Court Officer/Notary or Magistrate in a Stamp Paper of Rs.20/- and the same has to be published in two leading news papers to make known to the general public regarding change of name. So far as student is concerned, change of name in the school records is done only on furnishing the judgment and decree by the competent Civil Court. In view of that, the appellant filed a suit seeking for declaration to declare her name as Divya.G as provided under the Change of Name Act. The reasons assigned by the trial court to dismiss the suit is contrary to the change of Name Act. There need not be a mistake in furnishing the name while admitting into the Educational Institution. The name can be changed according to the wish of the candidate. The change of Name Act provides for the same. In the instant case, none of the respondents objected for change of name. The necessary documents with regard to swearing of the affidavit in a stamp paper before the competent authority and also two paper publications made available to the court. Hence, the question of dismissing the suit for change of name is contrary to law".
(underlined by me)
24) Thus, it is clear that the name can be changed, however, intention to change the name is required to be disclosed through affidavit sworn in before the Notary Public and same has to be O.S NO.2641/2021 12 published in newspapers to make known to the general public.
25) Further, Circular No.ED100DTB 2014 dated 26-10-2015 issued by the Government of Karnataka deals with the procedures for correction of school records, which reads as under :
"01. ಒಒದನನನ ತರಗತಯಒದ ಎಸಸ.ಎಸಸ.ಎಲಸ.ಸ. ತರಗತಯವರನಗನ ಓದದತತರದವ ವದದದರರಗಳ ಜನನ ದನದಒಕಗಳಲಲ ಕದದಲನಒಡರಸ ತಒಗಳಲಲ ಇಲಲದ ದನದಒಕಗಳದ ಉದದಹರಣನಗನ ಫನಬಬವರ 30, ಏಪಬಲಸ 31, ಜಜನಸ 31 ಇತದದದಗಳ ಬಗನಗ ತದದದಪಡ ಕನಜನರ ಸಲಲಸದವ ಅರರಗಳನದನ ಸಒಬಒಧಪಟಟ ಶದಲನಯ ಮದಖನಜದನಪದಧದದಯರ ಹಒತದಲಲಯನ ಪರಶನಲಸ, ತಕಕಣವನನ ಸಒಬಒಧಪಟಟ ಬ.ಇ.ಒ ರವರಗನ ಪಬಸದತವನನ ಸಲಲಸ ಅನದಮತ ಪಡನದದ ನಒತರ ಸಒಬಒಧಪಟಟ ಶದಲದ ಮದಖದಶಕಕಕರದ ತದದದಪಡ ಮದಡಲದ ಕಬಮವಹಸದವವದದ.
03.ಎಸಸ.ಎಸಸ.ಎಲಸ.ಸ. ಅಒಕಪಟಟಯಲಲ ವದದದರರಯ/ಪನಷಕರ ಹನಸರನಲಲ spelling, Initial, .......ದನದಒಕ ತದದದಪಡ, ಇದದಲಲ ಸಒಬಒಧಸದ ಶದಲನಯ ಮಜಲ ದದಖಲದತ ವಹ ಪರಶನಲಸ ಕನಕನತಬ ಶಕಕಣದಧಕದರಗಳನನ ನನನರವದಗ ಪಬಸದತವನನಯನದನ ಕನದರಟಕ ಪಪಬಢ ಶಕಕಣ ಪರನಕದಕ ಮಒಡಳಗನ ಕಳದಹಸ ಕಬಮವಹಸದವವದದ.
05. ಒಒದನನನ ತರಗತಯಒದ ಎಸಸ.ಎಸಸ.ಎಲಸ.ಸ. ತರಗತಯವರನಗನ ಓದದತತರದವ ವದದದರರಗಳ ದದಖಲನಗಳಲಲ ಹನಸರನಲಲರದವ ಅಕಕರಗಳದ ತಪದಪದಲಲ, ಹನಸರನ ಜನಜತನ ತಒದನಯ ಹನಸರದ, ಕದಟದಒಬದ ಹನಸರದ, ಅಡಡ ಹನಸರದ ಮದಲದದವವಗಳನದನ ಸನನರಸಲದ, ಹನಸರನದನ ಬದಲದವಣನ ಮದಡಲದ ಜನನ ದನದಒಕಕನಕ ದದಖಲನಗಳದ ಲಭದವದದದಗಜದ ಶದಲದ ದದಖಲನಗಳಲಲ ನಮಜದಸದವದಗ ಆಗರದವ ತಪವಪಗಳನದನ ತದದದಪಡ ಮದಡದವದಗ ಪಡತರ ಚನಟ, ಆಧದರಸ ಕದಡದರಗಳ ಆಧದರದ ಮನಲನ ವದದದರರಗಳ ಪನಷಕರಒದ ಸನಲಸಲ ಅಫಡವಟಸ ಪಡನಯಬನನಕದ. ಈ ಸನಲಸಲ ಅಫಡವಟಸನಲಲ ನನಡರದವ ಮದಹತಗಳದ ಸದಳನಳಒದದ ಕಒಡದ ಬಒದಲಲ ಅಒತಹ ಕಬಮ ಶಕದಕಹರವದಗದವವದರಒದ ಭದರತನಯ ದಒಡ ಸಒಹತನ ಪಬಕದರ ಶಕನಕಗನ ಒಳಪಡಸಬಹದದನಒದದ ಸದರ ಅಫಡವಟಸನಲಲ ನಮಜದಸರಬನನಕದ. ಇದರ ಆಧದರದ ಮನಲನ ಶದಲದ ದದಖಲದತ ನಯಮಗಳ ಉಲಲಒಘನನಯದಗದಒತನ O.S NO.2641/2021 13 ಆಯದ ಕನಕನತಬ ಶಕಕಣದಧಕದರಗಳ ಹಒತದಲಲ ತದದದಪಡ ಮದಡಲದ ಆಯದ ವಷರದ ಜಜನಸ01 ರಒದದ ಕಬಮ ವಹಸದವವದದ ಈ ರನತ ಕಬಮವಹಸದವದಗ ಕನದರಟಕ ಶಕಕಣ ಕದಯದ 1983 ರ ನಯಮ 11(1) ರಲಲ 05 ವಷರ ತದಒಬದ ಯದವವದನನ ಮಗದವಗನ ಶದಲನಗನ ದದಖಲದ ಮದಡಕನಜಳಳಲದ ಕನಷಟ 05 ವಷರವದಗರಬನನಕದಗರದತತದನ. ಆದದದರಒದ ವದದದರರಗಳ ಜನನ ದನದಒಕದಲಲ ತದದದಪಡ ಮದಡದವದಗ ಈ ಅಒಶವನದನ ಗಮನದಲಲಟದಟ ಕನಜಳಳಬನನಕದ. ಒಒದದ ಪಕಕ ಇದಕಕಒತ ಕಡಮ ಜನನ ದನದಒಕವನದನ ನಮಜದಸದದಲಲ ತದದದಪಡ ಮದಡಲದ ಸಒಬಒಧಪಟಟ ನದದಯದಲಯದ ಡಕಬ ತರದವವದದ ಅವಶದಕ.
06. ಎಸಸ.ಎಸಸ.ಎಲಸ.ಸ. ಆದ ನಒತರದ ಅಭದರರಗಳ ಶದಲದ ದದಖಲದತ/ಅಒಕಪಟಟಯಲಲ ಹನಸರದ, ಅಡಡ ಹನಸರದ, ಪನಷಕರ ಹನಸರದ ಹದಗಜ ಜನನ ದನದಒಕ ಇತದದದಗಳದ ತದದದಪಡಯದಗಬನನಕದಗದದಲಲ ನದದಯದಲಯದಒದ ಡಕಬ ಪಡನದದ ಬಒದ ಪಬಕರಣಗಳಲಲ ನದದಯದಲಯದ ಆದನನಶದ ಮನರನಗನ ಶದಲದದದಖಲದತ ನಯಮಗಳನನಯ ಪರಶನಲಸ ರಲದಲ- ಉಪನದನನರಶಕರದ ಪಬಸದತವನನನ ಸನನಕರಸದ 15 ದನದನಜಳಗನ ಸಜಕತ ತದದದಪಡ ಮದಡ ಆದನನಶ ಹನಜರಡಸದವವದದ. ಶದಲದ ದದಖಲನಗಳಲಲ ವದದದರರಯ ಹನಸರದ/ ಪನಷಕರ ಹನಸರದ, ವದದದರರಯ/ಜನನ ದನದಒಕ ಇತದದದ ತದದದಪಡ ಸಒಬಒಧ ದದಖಲದಗದವ ಓ.ಎಸಸ. ಪಬಕರಣಗಳಲಲ ಮದಲನನ ಪಬತವದದಯದಗ ಪಬತನಧಸಬನನಕನಒದದ ಸದಕಷದಟ ಪಬಕರಣಗಳಲಲ ಸಕದರರದ ಮದಖದ ಕದಯರದಶರ/ಸಕದರರದ ಪಬಧದನ/ ಕದಯರದಶರ, ಪದಬಥಮಕ ಮತದತ ಪಪಬಢ ಶಕಕಣ ಇಲದಖನ/ಆಯದಕತರದ, ಸದವರಜನಕ ಶಕಕಣ ಇಲದಖನ, ಇವರದಗಳನದನ 1 ನನನ ಅಥವದ 2 ನನನ ಪಬತವದಧಯನದನಗ ಮದಡಲದಗರದತತದನ. ಈ ಎಲದಲ ಪಬಕರಣಗಳಲಲ ರಲದಲ ಮಟಟದ ನದದಯದಲಯಗಳಗನ ಸಕದರರದಒದ ಅಥವದ ಆಯದಕತರಒದ ನದದಯದಲಯಕನಕ ಆಕನಕನಪಣದ ಹನನಳಕನ ಸಲಲಸಲದ ಸದಧದವದಗದವವದಲಲ ಆದದರಒದ .....
ಉಪನದನನರಶಕರದ, ಸದವರಜನಕ ಶಕಕಣ ಇಲದಖನ ಇವರದಗಳದ ನದದಯದಲಯದಲಲ ಸಕದರರದ ಪರವದಗ ಆಕನಕನಪಣದ ಹನನಳಕನ ಸಲಲಸದವ ಮಜಲಕ ಏಕಪಕಕನಯ ತನಪರಗನ ಅವಕದಶವದಗದಒತನ ನನಜನಡಕನಜಳದಳವವದದ ಹದಗಜ ಪಬಕರಣದ ಇತದಥರಕನಕ ಅಗತದ ಕಬಮ ವಹಸದವವದದ. "
26) From the above Circular dated 26-10-2015, it is clear that school records of the student, who is studying 1st to 10th standard can be corrected at the O.S NO.2641/2021 14 level of Block Education Officer by taking self affidavit of parents and in that circumstance, it is not necessary to obtain the decree from the Civil Court. After SSLC, it is mandatory to obtain decree from the Civil Court for correction of school records.
In that view, there is no significance in the contention of Defendants No.3 to 5 that there is no provision to change the name of the student in school records. Accordingly, I answer the above Issue in negative.
27) Issue No.4 : Defendants No.3 to 5 contend that suit is not maintainable for non-joinder of necessary parties. Defendants No.3 to 5 contend that Order XXVII Rule 5-A and Section 79 of CPC mandate that 'the State' must be made as party to the suit in which relief is sought for against the State.
O.S NO.2641/2021 15
28) Section 79(b) states that in the case of a suit by or against a State Government the authority to be named as plaintiff or defendant shall be 'the State'.
29) Order XXVII Rule 5-A of CPC makes it mandatory that where a suit is instituted against a Public Officer for damages or other relief in respect of any act alleged to have been done by him in his official capacity, the Government shall be joined as a party to the suit.
30) In the instant case, Defendants No.3 to 5 are the officials of the State Government. Relief has been sought for against Defendants without arraying the State Government as party to the suit. Even after taking such contention in written statement and framing of issue, Plaintiff has chosen not to array the State Government as party to the suit. As envisaged in Order XXVII Rule 5-A of CPC, it O.S NO.2641/2021 16 is mandatory to make the Government as party in the case of suit filed against public servants.
31) In N.C. Channabasappa vs. Assistant Education Officer, 1991(2) Kar.L.J. 381, the Hon'ble High Court was pleased to hold that in a suit filed against Government Officer, Government is a necessary party. In that view, it can be fairly said that suit is bad for non-joinder of necessary parties. Accordingly, I answer the above Issue in the affirmative.
32) Issues No.1, 2 and 5 : Plaintiff seeks direction to Defendants to change the name of his son as "NIKESH KAVAN PASUPALA" in his school records.
33) Plaintiff has deposed as PW.1 reiterating the facts stated in plaint. Plaintiff has produced office copy of legal notice; postal receipts; postal O.S NO.2641/2021 17 acknowledgments; RPAD cover with notice; affidavit sworn in by him; paper pubication and endorsement issued by police. They are marked as Exs.P.1 to P.16.
34) Defendants No.3 to 5 have contended that suit has been filed without arraying minor as a party and thereby mandatory provision as contemplated in Order XXXII Rule 1 has not been complied with.
35) Order XXXII Rule 1 of CPC states that every suit by a minor shall be instituted in his name by a person who in such suit shall be called the next friend of the minor. In the instant case, suit has not been filed in the name of minor as envisaged in Order XXXII Rule 1. Be that as it may. In view of not arraying the necessary parties, the question of granting the relief does not arise. In that view, the question of considering Issues No.1, 2 and 5 does not arise, accordingly I answer the above Issues.
O.S NO.2641/2021 18
36) Issue No.6 : For the foregoing discussion and findings on above Issues, I proceed to pass the following :
ORDER (1) Suit filed by Plaintiff is hereby dismissed.
(2) Draw Decree accordingly.
(Dictated to the Judgment Writer directly on computer, typed matter corrected and then pronounced by me in open court, dated this the 7th day of April 2022) (RAMA NAIK) VI Addl.City Civil & Sessions Judge Bengaluru City O.S NO.2641/2021 19 ANNEXURE I. List of witnesses examined on behalf of :
(a) Plaintiff's side :
P.W.1 - Sri.Shiva Murthy.G, dtd 05.10.2021
(b) Defendants side : N I L II. List of documents exhibited on behalf of :
(a) Plaintiff's side :
Ex.P.1 Office copy of legal notices dtd.30.12.2019
To
Ex.P.5
Ex.P.6
To Postal Receipts
Ex.P.10
Ex.P.11
and Postal Acknowledgments
Ex.P.12
Ex.P.13 RPAD Cover
Ex.P.13(a) Original Notice dtd.30.12.2019 Ex.P.14 Affidavit of Plaintiff sworn before Notary Ex.P.15 'Hosadigantha' Kannada Newspaper dtd.20.02.2020 Ex.P.15(a) Relevant publication Ex.P.16 Endorsement
(b) Defendants side : NIL
--
VI Addl.City Civil & Sessions Judge Bengaluru City