Madras High Court
The Registrar General, High Court vs M. Manickam, Secretary And ... on 21 July, 2007
Author: M. Jaichandren
Bench: M. Jaichandren
ORDER M. Jaichandren, J.
Page 1930
1. This Review Petition has been filed to review the judgment, dated 15.3.2007, made in S.A.No. 1064 of 2005.
2. It has been stated on behalf of the review petitioner that the first respondent in the petition had filed a suit in O.S. No. 549 of 1995, on the file of the District Munsif Court, Karur, against the petitioner and the respondents 2 to 4 for a declaration that his date of birth is 24.11.1950 and for a mandatory injunction to enter his date of birth in his S.S.L.C. book and in his Service Records as 24.11.1950, instead of 19.3.1947.
3. The trial Court, by its judgment and decree, dated 9.10.2002, had granted the relief of declaration, declaring the date of birth of the first respondent as 24.11.1950 and had also granted the consequential relief of mandatory injunction against the respondents 2 to 4 to correct the date of birth of the first respondent in his S.S.L.C. book as 24.11.1950. However, the trial Court had declined to grant any relief against the petitioner for correcting the date of birth of the first respondent in his Service Records. Accordingly, the trial Court had dismissed the suit with regard to the reliefs claimed against the petitioner in the present review petition.
4. It has been further stated on behalf of the petitioner that the first respondent did not prefer any appeal challenging the dismissal of the suit against the petitioner and hence, it had attained finality in that respect. However, the respondents 2 to 4 had filed an appeal in Page 1931 A.S.No. 13 of 2004, before the Sub-Court, Karur, contesting the reliefs granted against them by the trial Court. The first appellate Court, by its judgment and decree, dated 12.10.2004, had set aside the judgment and decree of the trial Court, dated 9.10.2002, with regard to the reliefs granted against them, by allowing the appeal and the suit had been dismissed in its entirety.
5. It has been further stated that the first respondent had preferred a second appeal before this Court in S.A. No. 1064 of 2005, challenging the judgment and decree of the first appellate Court, dated 12.10.2004, made in A.S. No. 13 of 2004.
6. This Court, by its judgment and decree, dated 15.3.2007, had allowed the second appeal by setting aside the judgment and decree of the first appellate Court, dated 12.10.2004, and consequently, it had restored the judgment and decree of the trial Court, dated 9.10.2002, made in O.S. No. 549 of 1995.
7. It has been further stated on behalf of the petitioner that the review petition has been filed to review the judgment of this Court, dated 15.3.2007, made in the second appeal in S.A. No. 1064 of 2005, since certain findings and observations made therein, relating to the claim of the first respondent for correction of his Service Records, has the effect of enabling the first respondent to make his claim before the petitioner for correcting his date of birth in his Service Records and for other reliefs. Further, inasmuch as the claim for correction of the Service Records of the first respondent was not the subject matter of the first appeal, the same could not have been the subject matter of the second appeal and as such the observations and findings relating to the correction of the date of birth of the first respondent in the judgment of this Court in the second appeal requires to be recalled.
8. It has been further stated that it is settled law that entries relating to the date of birth in the horoscope cannot be made the basis for correcting the date of birth of a person in his Service Records, especially, after a long lapse of time.
9. It has also been stated that on the basis of the date of birth of the first respondent being taken as 19.3.1947, as originally entered in his Service Records, the first respondent had to retire from service, on 31.3.2007, having attained the age of superannuation. The observations and findings of this Court in its judgment and decree, dated 15.3.2007, in S.A. No. 1064 of 2005, has the effect of enabling the first respondent to make a claim to extend his service till November, 2010. In such circumstances, the present review petition has been filed.
10. It is stated by the review petitioner, in the grounds raised for the filing of the petition, that the observations and findings recorded in the judgment of this Court in S.A. No. 1064 of 2005, relating to the claim for correction of the Service Records of the first respondent, requires to be deleted for the reason that the suit in O.S. No. 549 of 1995, filed by the first respondent Page 1932 had been dismissed as against the review petitioner and it had become final. The only question that had arisen in the first appeal A.S. No. 13 of 2004 and in the second appeal S.A. No. 1064 of 2005 related to the claim regarding the declaration of the date of birth and the consequent correction of the School Records.
11. It had also been stated by the review petitioner that the mandatory injunction claimed by the first respondent against the review petitioner to correct the Service Records had been dismissed by the trial Court and it had not been appealed against by the first respondent. The questions relating to the claim for correction of Service Records, validity of Exhibits A. 2, A.3 etc. were outside the purview of the second appeal.
12. It had been further stated that the findings of this Court in the second appeal, with reference to Exhibit A.2, is an error apparent on the face of the records, since the said document is not an application for correction of the date of birth in the Service Records, but a letter addressed by the first respondent to the Chief Judicial Magistrate, Kanniyakumari, requesting for permission to peruse the service register and it is also a request to furnish a copy of the pro forma application to enable him to submit the application for the correction. Only a copy of the said letter had been marked to the review petitioner. It is only Exhibit A.3, which is the application from the first respondent for correction of his date of birth in his service register.
13. The review petitioner had further stated that in view of the fact that a written statement had been filed by the review petitioner in the suit O.S. No. 549 of 1995, in which the claim for correction of the date of birth of the first respondent in his service register had been disputed, the findings in the second appeal relating to the doctrine of non-traverse is also an obvious error apparent on the face of the records. Further, in the light of the settled law that entries relating to the date of birth in the horoscope cannot be made the basis for correcting the date of birth of a person in his service records, especially, after a long lapse of time, the findings of this Court are not correct.
14. It has been further stated that in such circumstances, the review petition has been filed to reconsider and to review the judgment passed by this Court in the second appeal S.A. No. 1064 of 2005, by deleting the findings in the said judgment with reference to Exhibit A.2.
15. Mr. R. Muthukumarasamy, the learned senior counsel appearing on behalf of the review petitioner had submitted that no first appeal had been filed on behalf of the review petitioner against the judgment and decree of the trial Court, dated 9.10.2002, made in O.S.No. 549 of 1995, since the said reliefs granted in the said suit were only against the defendants 1 to 3 therein and the suit had been dismissed as against the fourth defendant in the suit, who is the present review petitioner.
16. The learned senior counsel appearing on behalf of the review petitioner had further submitted that, on a careful scrutiny of the matter, the review petitioner cannot be aggrieved by the judgment and decree made in the Page 1933 second appeal in S.A. No. 1064 of 2005, as it is only the judgment and decree of the trial Court, dated 9.10.2002, made in O.S. No. 549 of 1995, that has been restored, while allowing the second appeal, by setting aside the judgment and decree of the lower appellate Court, dated 12.10.2004, made in A.S. No. 13 of 2004. However, the findings and observations of this Court in its judgment and decree, dated 15.3.2007, made in S.A. No. 1064 of 2005, may have the effect of enabling the first respondent to continue in service till November 2010, even though he had attained the age of superannuation on 31.3.2007, according to his original date of birth, which is 19.3.1947.
17. The learned senior counsel appearing on behalf of the review petitioner had also stated that the judgment and decree passed in the second appeal, granting the reliefs to the first respondent, as against the respondents 2 to 4 in the review petition could also have the effect of a binding nature on the review petitioner. In such circumstances, for the reasons stated in the affidavit filed in support of the miscelleneous petition in M.P. No. 1 of 2007, and based on the grounds raised in support of the Review Petition No. 19 of 2007, the observations and findings of this Court in S.A.No. 1064 of 2005, relating to Exhibit A. 2, dated 7.10.1993, ought to be deleted by reviewing the judgment and decree of this Court, dated 15.3.2007.
18. It has been reiterated that even though the suit in O.S. No. 549 of 1995, on the file of the District Munsif Court, Karur, had been dismissed as against the fourth defendant in the said suit and the review petitioner in the present review petition, due to the judgment and decree passed by this Court in the second appeal S.A. No. 1064 of 2005, dated 15.3.2007, it would have a consequential binding effect on the review petitioner as well. Since such a position would be prejudicial to the interests of the petitioner, it had become necessary for the review petitioner to file the present review petition before this Court seeking the relief as stated therein.
19. Per contra, Mr. T.R. Rajagopalan, the learned senior counsel appearing on behalf of the respondents, had submitted that the review petition is not maintainable in law as no case has been made out on behalf of the petitioner to review the judgment and decree passed by this Court, on 15.3.2007, in S.A. No. 1064 of 2005. The grounds raised by the review petitioner cannot be sustained, since the review petitioner cannot be said to be aggrieved by the observations and findings of this Court in its judgment and decree passed in the second appeal, especially, in view of the fact that the reliefs granted therein is only against the respondents 2 to 4. Further, it is clear from the records available before this Court that the review petitioner has not chosen to file a first appeal against the judgment and decree passed by the trial Court in O.S. No. 549 of 1995. If the review petition is allowed, it would have the effect of re-opening the entire issue which is beyond the scope and ambit of the review jurisdiction of this Court. Therefore, the review petition ought to be dismissed as it is devoid of merits.
Page 1934
20. On analysing the contentions of the learned senior counsels appearing on behalf of the review petitioner and the respondents, this Court is of the considered view that the review petitioner has not shown good and sufficient reasons for this Court to review its judgment and decree, dated 15.3.2007, made in S.A.No. 1064 of 2005.
21. It is seen that the review petitioner, who was the fourth defendant in the suit O.S.No. 549 of 1995, on the file of the District Munsif Court, Karur, had not chosen to agitate against the findings of the trial Court found in its judgment and decree, dated 9.10.2002. Even though the petitioner had been shown as a respondent in the first appeal A.S. No. 13 of 2004, on the file of the Sub-Court, Karur, and in the second appeal S.A. No. 1064 of 2005, before this Court, it is seen that no effective representation had been made on behalf of the petitioner at those stages. Such lackadaisical and prosaic approach of the petitioner in dealing with the issue cannot be entertained. Such an attitude on the part of the petitioner comes close to being termed as benign neglect. In such circumstances, the review petitioner cannot be permitted to persuade this Court to review its judgment and decree as sought for in the review petition. Based on the merits of the matter, this Court finds no error apparent on the face of the records, as pleaded by the petitioner, to invoke its review jurisdiction. Further, on a perusal of the points placed before this Court for consideration and the grounds raised in support thereof, it is clear that the petitioner has totally misunderstood the scope of the review jurisdiction of this Court which is specific and limited.
22. The learned senior counsel appearing on behalf of the review petitioner had further submitted, at this stage of the hearing of the review petition, that it could be clarified by this Court that the observations and the findings in the judgment of this Court, dated 15.3.2007. in S.A.No. 1064 of 2005, with regard to Exhibit A.2, dated 7.10.1993, would not be binding on the review petitioner. In the considered view of this Court such a contention cannot be countenanced, at this stage, by way of a review petition. However, it goes without saying that it would be open to the review petitioner to pass any appropriate order, in accordance with law, with regard to the service conditions of the first respondent in the present petition. It would not be appropriate to re-open the entire matter and to re-appraise the facts and circumstances of the case, while passing an order in a review petition, except under extraordinary or special circumstances. The review petitioner has not been in a position to show that such a situation is prevailing in the present case. Having lost the opportunity of agitating the issues raised in the present review petition at the earliest instant, it is not open to the petitioner to seek the relief as prayed for at this stage.
23. This Court had carefully considered the facts and circumstances of the case before passing the judgment and decree in S.A.No. 1064 of 2005. Having failed to effectively agitate the issues at the appropriate stages, it is not open to the review petitioner to agitate the same by filing the above review petition. Further, it has been brought to the notice of this Court by the learned senior counsel appearing on behalf of the respondents that Page 1935 the alteration of the date of birth of the first respondent has already been made in his S.S.L.C. book and it has been entered as 24.11.1950, instead of 19.3.1947.
24. In such circumstances, this Court is of the considered view that there is no sufficient reason or cause shown by the review petitioner to grant the relief sought for in the review petition. Hence, the review petition stands dismissed with costs. Consequently, connected M.P. No. 1 of 2007 is closed.