Karnataka High Court
Deputy Commissioner vs K.V. Gururaja Rao on 9 March, 1989
Equivalent citations: ILR1989KAR1855, 1989(2)KARLJ84
JUDGMENT Hiremath, J.
1. The Original Suit from the decree in which the present appeal is filed by the defendants therein was for declaration that the respondent-plaintiff was born on 15-3-1951 and consequently direct the defendants appellants-1 and 2 herein to make necessary corrections relating to his date of birth in the S.S.L.C. marks card and correcting the date of birth already in records as 15-3-1951.
2. The plaintiff alleged that even though he was born on 15-3-1951 there was no entry made in this behalf and referring to the other issues to his parents, he has asserted that the birth date now given should be accepted. Smt. K.V. Vani who was the first child to his parents was born on 26-7-1946, the second an elder brother by the name K.V. Badrinath born on 2-7-1948 he being the 3rd issue and the 4th is a sister by name K.V. Pushpa born on 12-12-1953 and the 5th is K.V. Lakshmi born on 5-2-1956. When he was admitted to the School his date of birth was wrongly given as 13-2-1947 through oversight by persons who were not in the know of facts. The same mistake was carried out in the Cumulative Record as well.
3. Earlier O.S.No. 1711/71 was filed in the Munsiff Court at Bangalore, but it was withdrawn when it was pending in second appeal before this Court as notice under Section 80 CPC and also one under Section 38 of the Mysore Secondary Examination Board Act of 1956 was not issued. After withdrawing the same with leave to file fresh suit on the same cause of action requisite notices were issued and then this suit came to be filed. The defence of the defendants-1 and 2 was mainly that, the mistake pleaded by the plaintiff cannot at all be accepted and there are no grounds to believe that he was born on 15-3-1951. Thus they did not admit the correctness of the date of birth given by the plaintiff. They maintained that the one entered in the school records is correct. They also pleaded that the suit is barred by limitation. The Court below adressed itself to the following issues:-
"1) Whether the plaintiff proves that his date of birth is 15-3-1951?
2) Whether the plaintiff proves that his date of birth was wrongly entered as 13-2-1947 at the time of admission to the School?
3) Whether the plaintiff is entitled to declaration that his date of birth is 15-3-1951?
4) Whether the plaintiff is entitled to correction of the date of birth in the S.S.L.C., Marks Cards and Cumulative Records and in the service records?
5) Whether there is valid notice under Section 80 of CPC?
6) Whether the suit is barred by limitation?
7) Whether the suit is not maintainable for non-joinder of State of Karnataka as a party to the suit?"
4. On all these issues the Court found in favour of the plaintiff-respondent and decreed the suit in part. A declaration was given that the plaintiff was born on 15-3-1951 and consequently direction is also issued to defendant-2 to make necessary corrections relating to his date of birth in the S.S.L.C. Cumulative Record.
5. In challenging this decree of the Court below it is urged that the Court below was not justified in finding that the respondent was born on 15-3-1951. It ought to have seen that the respondent had earlier filed a suit in the year 1971. Subsequently, he withdrew it on the ground that he had not issued notice under Section 80 CPC and the Court erred in finding that the suit was in time because it was brought within three years from the date of the withdrawal of the suit. It was urged during arguments that the evidence given by the respondent with regard to the various dates of birth of his brothers and sisters does not inspire confidence and secondly that the Court failed to notice that the notice under Section 80 CPC issued by the respondent is not according to law and the suit is clearly barred by time.
6. As far as the date of birth is concerned the respondent as PW-1 has given evidence about the dates of births of his brothers and sisters and has got marked Exhibits P-1 to P-5 which are the birth register extracts of his brothers and sisters. The eldest of them was born on 26-7-1946, the second one on 2-7-1948 and the 4th a sister on 12-12-1953, the respondent was born on 15-3-1951, The evidence given by him that some one got him admitted by giving a wrong date of birth as 13-2-1947 was accepted by the Court below. It was the mother-in-law of his mother who requested some neighbour to take the plaintiff to school and admit him as his father was not present then. Nagamma PW-2 is the material witness in this behalf and she is the mother of the plaintiff. She has given these respective dates of births of her children. It is pertinent to note that the date of birth given by Sai Baba Patshala was 13-2-1949 in its certificate. This is contrary to the date that came to be given earlier. It is not possible to make out now this date 13-2-1949 came to be entered in the register of that school. In fact it was in this Sai Baba School at Srirampuram that he was first admitted. The Cumulative Records of the SSLC thus find contradiction in the date of birth entered in the School. Looking to the age difference between the issues to parents the date of birth now given by him and supported in the evidence of his mother was found to be exceptional by the Court below and there is no reason to come to a contrary finding. In that view of the matter the finding of the Court below on this material issue does not call for interference. Equally there is no merit in the contention that the notice under Section 80 CPC is not according to law. The requirements there of have been sufficiently fulfilled.
7. The other material issue is one of limitation. It was canvassed on behalf of the appellants that the time taken during pendency of the earlier suit till it was disposed of in the appeal ought not to be deducted in computing the limitation. R.S.A.No. 1192/75 came to be disposed of on 4-11-1982 granting permission to the respondent herein to file a fresh suit on the same cause of action as it was found that notice under Section 80 CPC was not issued. While disposing of R.S.A. 1192/75 this Court dealing with omission on the part of the respondent to issue notice under Section 80 CPC passed the following order:-
"That is a technical defect. In the circumstances, the learned Advocate appearing for the appellant/plaintiff sought permission to withdraw from the suit with liberty to file a fresh suit on the same cause of action.
In view of this technical defect, I am inclined to grant permission as it involves difference of age of nearly four years. The plaintiff is in the service of a Private Limited Company.
Hence, his application to withdraw the suit with permission to file a fresh suit on the same cause of action is hereby allowed.
Accordingly, the Judgments and decrees of both the Courts below are set aside."
It was urged on behalf of the appellants that looking to the provision of Order 23 Rule 2 CPC, the Court ought to have found that the suit is clearly barred. Rule 2 reads as follows:-
"Limitation law not affected by first suit in any fresh suit instituted on permission granted under the last preceding rule, the plaintiff shall be bound by the Law of Limitation in the same manner as if the first suit had not been instituted."
Therefore, according to the learned Government Pleader, the suit is clearly time barred. In this context, it is necessary to look to Section 14(3) of the Limitation Act. It says:-
"Notwithstanding anything contained in Rule 2 of Order 23 of the Code of Civil Procedure 1908, the provisions of Sub-section (1) shall apply in relation to a fresh suit instituted on permission granted by the Court under Rule 1 of that Order, where such permission is granted on the ground that the first suit failed by reason of a defect in the jurisdiction of the Court or other cause of a like nature."
8. Under Sub-section (1) it is clearly provided that in computing the period of limitation for any suit the time during which the plaintiff has been prosecuting with due diligence another civil proceeding, whether in a Court of first instance or of appeal or revision, against the defendant should be excluded, where the proceeding relates to the same matter in issue and is prosecuted in good faith in a Court, which from defect of jurisdiction or other cause of a like nature, is unable to entertain it.
9. It now remains to be considered, whether the reason given for withdrawing the earlier suit that it was likely to fail on a technical defect of not issuing the notice under Section 80 CPC should be considered a "cause of a like nature", like that of defect in the jurisdiction of the Court. There could be no controversy that this should be considered ejus dem generis. Under Order 23(1)(3) where the Court is satisfied that a suit must fail by reason of some formal defect or that there are other sufficient grounds for allowing the plaintiff to institute a fresh suit for the subject matter of a suit etc. then the Court may grant permission to institute a fresh suit for the subject matter of a suit or part of a claim on such terms as it thinks fit with liberty to institute a fresh suit. The order passed in the second appeal in the earlier suit clearly states that the suit was likely to fail for the technical defect, namely, that the notice under Section 80 CPC was not issued. Whether such a defect noticed by the plaintiff at that stage and recognised by the Court to give permission to institute a fresh suit is "a cause of like nature" as contemplated under Section 14(3) of the Limitation Act is the only point that deserves examination- in the case of INDIA ELECTRIC WORKS LTD. v. JAMES MANTOSH AND ANR. , the Supreme Court had occasion to consider the expression "or other causes of a like nature" obtaining in Section 14(3) of the Act. At para-4 of the Report, their Lordships of the Supreme Court observed as follows:
"The cases which were decided on the principles that if a plaintiff or a petitioner failed to establish a cause of action in himself no deduction of time could be allowed under Section 14 were noticed and it was accepted that they proceeded on a correct view. Illustration of the facts which would be covered by the words "or other cause of a like nature" as given in the decided cases were: (i) if a suit had failed because it was brought without proper leave (ii) if it had failed because no notice under Section 80, Civil Procedure Code, had been given; (iii) where it would fail for non-production of the Collector's certificate required by Section 7 of the Pensions Act. In each one of these cases the Court did not lack jurisdiction in its inception but the suit could not be proceeded with and disposed of until the statutory conditions laid down had been satisfied or fulfilled,"
This decision clearly answers the point raised by the learned Government Pleader that Order 23 Rule 2 CPC., is a bar to institution of this suit after expiry of the period of limitation prescribed under law. The Court as already pointed out while granting permission did find that it was a technical defect and so also it becomes a formal defect for the reason that without crossing this hurdle the suit could not have been instituted. It is for that reason that permission to withdraw the suit was sought and this Court did leave liberty to the plaintiff-respondent to institute the suit again on the same cause of action. In that view of the matter when the respondent filed the present suit after rectifying the defect that was pointed out provisions of Section 14(3) are clearly attracted and plaintiff respondent should have benefit of the same in deducting this period of limitation occupied during pendency of the earlier suit. That being so I find that even the objection that the suit is barred by time is not maintainable.
10. In the result, I do not find any merit in this appeal and the same is liable to be dismissed and it is dismissed.