Karnataka High Court
M/S. Bharat Electronics Limited, ... vs V. Ethiraj on 15 February, 2000
Equivalent citations: AIR2000KANT314, 2000(5)KARLJ23, AIR 2000 KARNATAKA 314, (2000) 5 KANT LJ 23 (2000) 3 CIVILCOURTC 340, (2000) 3 CIVILCOURTC 340
JUDGMENT
1. This is defendants' first appeal from the judgment and decree dated 19-11-1996 delivered by Sri K.H. Malleshappa, X Additional City Civil Judge, Mayo Hall, Bangalore City, in a suit for declaration to the effect that the plaintiffs date of birth is to be 2-2-1943 and not 31-8-1937 and for further declaration that the plaintiff is entitled to continue in service of the 1st defendant till 2-2-2001.
2. The plaintiff has alleged that the plaintiff was employed in the defendants' Company in 1962 as a casual worker and thereafter was confirmed in the defendants' Company on 27-7-1964. According to the plaintiff, the defendant-Company required the plaintiff to report before the Chief Medical Officer of the Company to undergo medical examination for recording his date of birth and it appears after the medical examination vide Ex. D. 1, dated 6-9-1972, the Medical Officer assessed the date of birth of the plaintiff/respondent to be 31-8-1937. The plaintiff alleged that when he came to know about this date which had been fixed as 31-8-1937 as his date of birth, he felt that it was wrong date of birth which was recorded on medical basis and he made a representation in writing to the 2nd defendant-Personnel Manager of the Company on 6-4-1987 and sought its correction on the basis of Transfer Certificate alleged to have been issued by the Seva Ashram Middle School, Sreerampuram, Bangalore, showing the actual date of birth to be 2-2-1943. The defendants vide letter dated 22-5-1987 informed the plaintiff that the Company can consider only S.S.L.C. Certificate and not any other School Certificate of plaintiff/respondent. Only S.S.L.C. Certificate could be acceptable and as the plaintiff had not studied up to S.S.L.C., Transfer Certificate could not be relied which the plaintiff has produced for the purpose of determination of the age and as such, the defendants have accepted the age as assessed by the Medical Officer. That the date of birth of the plaintiff/respondent is 31-8-1937. No doubt, the plaintiff has stated that subsequently he appeared in S.S.L.C. Examination and thereafter got the S.S.L.C. failure certificate in which his date of birth has been mentioned as 2-2-1943 and the plaintiff/respondent again made another representation on the basis of that S.S.L.C. Certificate. In the plaint paragraph 9 it is mentioned that the plaintiff has written one more letter on 10-2-1993 to the Executive Director of the 1st defendant-Company and requested to correct the date of birth of the plaintiff as 2-2-1943. That had been rejected. A legal notice was given and thereafter this present suit had been filed seeking declaration of date of birth. The suit was contested. The written statement was filed and amongst others, plea of limitation had also been raised by the defendants. The Trial Court framed the following issues.--
1. Whether the plaintiff proves that at the time of his appointment as casual labourer and also his appointment as helper, the first defendant did not call upon the plaintiff to produce authenticated records in proof of his date of birth?
2. Whether the plaintiff proves that Chief Medical Officer arbitrarily assessed his date of birth as 31-8-1937 without giving him enough opportunity to produce authenticated documents in proof of his date of birth?
3. Whether the plaintiff proves his actual date of birth being 2-2-1943?
4. Whether the defendants prove that in the application for the post of helper the plaintiff had furnished his date of birth as 18-3-1940?
5. Whether the defendants prove that on 22-8-1987 the plaintiff was called upon to produce school certificate or birth certificate and he failed to produce documents in proof of his age?
6. Whether the suit is barred by time as contended by the defendants?
7. Whether the plaintiff is entitled to,
(a) declaration;
(b) permanent injunction; and
(c) mandatory injunction?
8. What order?
Additional Issue.--Does the plaintiff prove that his superannuation is null and void and thus entitled to all back wages and benefits?
3. The Trial Court decreed the plaintiff's suit and declared the plaintiffs date of birth to be 2-2-1943 and he is entitled to continue in service till superannuation i.e., till 2-2-2000. The Trial Court, dealing with that question of limitation, observed as under (para 17):
"17. Issue No. 6: It is one of the contention of the defendants' Company that the suit filed by the plaintiff is barred by time, and thus it is liable to be dismissed. It is pertinent to note that the plaintiff came to know that his date of birth was wrongly entered in the service register as 31-8-1937. Immediately, he gave an application to the defendants' Company along with transfer certificate Ex. P. 3. The defendants replied on 22-5-1987 calling upon him to produce the SSLC certificate or birth certificate. Ex. P. 1 is the said reply. The plaintiff once again requested the defendants' Company to rectify his date of birth. The defendants' Company directed the plaintiff to produce the birth certificate in proof of his correct date of birth. Accordingly, again the plaintiff filed the certificate of birth issued by the City Municipal Council, Robertson-pet, KGF vide Ex. P. 8. Thereafter, once again, he requested the defendants' Company to rectify his date of birth, whereas the defendants' Company instead of considering the request of the plaintiff, proceeded to reject and accepted the report of the Chief Medical Officer. Therefore, the plaintiff has got issued the legal notice to the defendants vide Ex. P. 10. Ex. P. 11 is the acknowledgment. The defendants did not reply and thus the plaintiff has filed this suit. That being so, absolutely there are no grounds for the defendants to contend that the suit filed is barred by time. Hence, I answer this in the negative".
Feeling aggrieved from the judgment and decree of the lower Appellate Court, the defendants have come up in appeal before this Court.
4. The principal contention that had been advanced on behalf of the defendants/appellants is that, in view of Article 58 of the Limitation Act the suit is barred by limitation as cause of action for filing the suit, according to the defendants, had occurred in 1987. The learned Counsel for the appellants contended that subsequent cause of action will not be of any avail. He submitted that Article 58 of the Limitation Act deals with suits for declaration other than those mentioned in earlier Articles and the declaration sought in the present case is covered by Article 58. The learned Counsel contended that the Article uses the expression, "when the right to sue first accrues". Therefore, any subsequent cause of action will not entitle the plaintiff to file the suit once the limitation under Article 58 expires. The learned Counsel contended that in view of the above, the suit was barred by limitation and the Trial Court did not apply its mind to the provisions of Article 58. The learned Counsel contended that the suit having been filed in 1993, it had been filed beyond limitation.
5. On behalf of the respondent, these contentions of the learned Counsel for the appellants have hotly been contested.
It has been asserted that as per Ex. P. 1, there was no complete refusal to change the date. Really complete refusal, according to the plaintiff, had been made in the year 1993 vide Ex. D. 8, dated 19-3-1993. The learned Counsel submitted that in this letter, no doubt, authorities informed that the date of birth of the plaintiff cannot be corrected at this stage and the matter may be treated as closed. The learned Counsel contended that it is a continuing right and it continued upto 1993 and so suit filed within three years from 1993 i.e., in the year 1996 was yet within time.
6. I have applied my mind to the contentions raised by the learned Counsel for the parties.
Article 58 provides as under.-
Description of suit Period of limitation Time from which period begins to run To obtain any other declaration Three years When the right to sue first accrues Article 58 is distinct in language and stands changed in its tenure from Article 120 and if compared to Article 113 of present Limitation Act, the language used is different. In Article 58, expression used is, "when the right to sue first accrues", while in old Limitation Act of 1908 in Article 120 the language used was, "when right to sue accrues". This is a specific change in the language of Article 58 from that of Article 120. Here, earlier Article 120 could be interpreted as when right to sue accrues from time to time or even when right to sue subsequently accrues. But Article 58 says that the limitation will start as and when right to sue or cause of action for the first time accrues, and no alleged subsequent cause of action will be of any avail to plaintiff to control the running of limitation. It will be pertinent at this stage to refer to the following observations of Hon'ble Mr. Justice Shyamasundar in the case of Dada Jinnappa Khot v Shivalingappa Ganapati Bellanki. In paragraph 7 at page 998, His Lordship has observed as under:
"7. I am to notice that the expression "where the right to sue first accrues" appearing in Article 58 came to be included in the Limitation Act of 1964 in place of Article 120 of the old Act of 1908. In Article 120 of the old Act, which was the corresponding Article to Article 58 of the new Act, the language used was quite different, in that the language employed in the old Act read, "when the right to sue accrues". It may well be on the basis of the language of the provision as it stood prior to the Amending Act of 1964, it was possible to contend that whenever the right to sue accrued, a plaintiff who was the repository of such a right could treat it as the commencement of the period of limitation. But under the new Act with the change in the language of the statute the same having become more specific and precise with the inclusion of the words "when right to sue first accrues", there can be little doubt that although a cause of action may have arisen even on subsequent occasions as well, what is material for the purpose of computing the period of limitation under Article 58 is the date when the right to sue first accrued"
7. Right to sue can be said to have been accrued for the 1st time only when because of the act of opponent or defendant there appeared to be clear threat to plaintiff's right being adversely affected or jeopardized or evaded. In the present case no doubt when the applicant moved the application for appointment vide Ex. D. 1 at page 99 of the paper-book, he had mentioned the date of birth as 18-3-1940. But he did not furnish any certificate either from the local Corporation or S.S.L.C. Certificate. No doubt, thereafter the Company got assessed the age medically. The medical assessment was made in the year 1972 assessing the date of birth to be 31-8-1937. There is no proof that this was communicated, but no doubt plaintiff himself alleges that in 1987 he came to know about this date. He moved an application on 6-4-1987. This fixation of date to 31-8-1937 instead of the date of 18-3-1940 as mentioned in the application, definitely had created a threat and evasion on the plaintiff's right to continue in service for the period he would have continued had his date of birth been taken as 18-3-1940 as mentioned in the application.
The fixation of date as 31-8-1937 had the effect of reducing the period or the year in which he had to retire had created a threat for continuation of service for the period he would have continued if 18-3-1940 was continued to be his date of birth. So, no doubt, cause of action would have accrued for the plaintiff to file the suit at least when he came to know or when it was communicated at least that his date of birth had been assessed as 31-8-1937 vide Ex. P. 1 i.e., the document dated 22-5-1987 which is the order on the plaintiff's application, rejecting the application and his prayer to change the date of birth to 2-2-1943 and it is ordered therein that the Transfer Certificate cannot be relied and the date of birth of the plaintiff had been assessed to be 31-8-1937 and that is taken to be final. At least this date i.e., 22-5-1987 can be said that for the first time the cause of action accrued giving the right and cause to the plaintiff to file the suit for declaration of his date of birth. The subsequent events will not change the position of law, whether he might have made second or third representation thereafter. Article 58 says, "when the right to sue first accrues", and the plaintiff himself admits that cause of action accrued in the year 1987 i.e., on 6-4-1987 when he made the written application to the defendants on the basis of Transfer Certificate. So, even as per the own admission of the plaintiff, the cause of action no doubt for the first time accrued on 6-4-1987 or at least on 22-5-1987.
8. Thus considered, the suit for declaration of the age as covered by Article 58 and cause of action having been accrued in 1987 for the first time, the suit filed in 1993 was much beyond limitation. Even if the plaintiff had moved the second application or letter, even that letter had been rejected on 21-3-1993 (Ex. P. 9) or the plaintiff gave notice (Ex. P. 10) that will be immaterial for the purpose of counting limitation under Article 58. The effective cause of action, no doubt, accrued in the year 1987.
9. In this view of the matter, in my opinion, the present suit had been barred by limitation as it had been filed after the expiry of three years from the date when causes and right accrued for the first time in 1987 and when I so opine, I find support for my view from the decision of this Court in the case of Dada Jinnappa Khot, supra. No doubt certain cases were cited out by the respondent's Counsel, but those cases are not applicable to the facts of the present case. I find the suit to be time-barred. When the suit itself was time-barred, the Trial Court could not pass any decree declaring the plaintiff's date of birth to be 2-2-1943 nor any consequential relief could be granted as suit itself was barred by time.
10. Appeal is allowed. The decree of the Trial Court is hereby set aside. The parties may bear their own costs. As the suit had been held to be time-barred, I need not go into other contentions raised by the learned Counsel for the parties.