Karnataka High Court
Rajashekara H G @ Rajesh H G vs The State Of Karnataka on 23 January, 2020
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS 23RD DAY OF JANUARY, 2020
BEFORE
THE HON'BLE MR. JUSTICE E.S. INDIRESH
REGULAR FIRST APPEAL NO.170 OF 2013
Between:
Rajashekara H G @ Rajesh H G
S/o Gundappa Gowda H S
Aged about 30 years
Residing at No.92
Rajgopal Nagar Main Road
Peenya II Stage,
Bangalore - 560 058
...Appellant
(by Shri Santosh S. Gogi, &
Shri Shivakuma S Gogi, Advocates)
And:
1. The State of Karnataka
Represented by its Chief Secretary
Vidhana Soudha
Bangalore - 560 001
2. The Secretary
Secondary Education Department
Malleshwaram
Bangalore - 560 003
3. The Principal
Sri Swayam Prakash Saraswathi Secondary School
Narve Post
Koppa Taluk
2
District Chitradurga - 577 501
4. The Joint Director
Department of Pre-University Education
18th Cross, Malleshwaram
Bangalore - 560 003
5. The Principal
Sri JOBM College
Sringeri
Chikamagalur District 577 101
...Respondents
(by Smt. Anitha H.R., HCGP for R1, R2 and R4;
R3 and R5 served and unrepresented)
This Regular First Appeal is filed under Section 96 of the
Code of Civil Procedure against the judgment and decree dated
06.08.2012 passed in OS No.6579 of 2011 on the file of the XL
Additional City Civil & Sessions Judge, Bengaluru, dismissing the
suit for declaration and mandatory injunction.
This Appeal coming on for further hearing, this day, the
Court delivered the following:
JUDGMENT
This Regular First Appeal is directed against the judgment and decree dated 06th August, 2012 passed by the XL Additional City Civil and Sessions Judge at Bangalore in Original Suit No.6579 of 2011.
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2. For the sake of convenience, the parties in this appeal shall be referred to in terms of their status before the Trial Court.
3. Original Suit No.6579 of 2011 is filed by the plaintiff seeking declaration and mandatory injunction against the defendant-respondents. The case of the plaintiff before the Trial Court is that after his birth, he was named as Rajashekhara H.G. and the said name has been entered in all the records, deeds and things as Rajashekhara H.G. including the educational certificates viz. Secondary Education Examination Board certificate, i.e. SSLC marks card and Department of Pre- University Examination Board certificate i.e. PUC marks card; and in the aforesaid certificates, the name of the plaintiff was shown as Rajashekara H.G. Thereafter, the plaintiff has changed his name from Rajashekara H.G. to Rajesh H.G. and accordingly he has taken out paper publication in the Daily News Paper viz. Vijaya Karnataka dated 27th November, 2007 and pursuant to the publication of the same, the plaintiff has requested the respondent-authorities to change his name in all the original 4 records/documents including the educational certificates issued by the competent authorities. The said request made by the plaintiff was not responded by the defendants and he was made to run from pillar to post. Accordingly, the plaintiff has issued a legal notice dated 19th July, 2011 calling upon the defendants to change his name from Rajashekara H.G. to Rajesh H.G. and despite having received the legal notice issued by the plaintiff, the defendants have failed to effect the change of the name of the plaintiff in the records. Hence, the plaintiff filed a suit for declaration to declare that the plaintiff's name as Rajesh H.G. from Rajashekara H.G. The suit summons issued to the defendants No.1, 2 and 4 was served in their office and they have failed to appear before the Trial Court. The suit summons issued to defendants No.3 and 5 served to them in person, however, they have failed to appear before the Court and accordingly, the Trial Court placed the defendants ex-parte.
4. Based on the pleadings, the Trial Court has framed the following issues:
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1. Whether the plaintiff has made out a case to declare his name as Rajesh H.G.?
2. Whether the plaintiff is entitled to the relief of declaration and mandatory injunction as prayed in the plaint?
3. What order?
5. In order to prove his case, the plaintiff was examined as PW1 and marked Exhibits P1 to P8. The Trial Court, after considering the materials on record, has dismissed the suit on the sole ground that the plaintiff has changed his name as Rajesh H.G. by way of affidavit dated 06th November, 2007 sworn to before the Notary, however, the plaintiff has not produced the said Affidavit dated 06th November, 2007 before the Court at the time of evidence.
6. Heard Shri Santosh S. Gogi, the learned Counsel for the appellant-plaintiff and Smt. Anitha H.R. the learned High Court Government Pleader for Respondent-defendants No.1, 2 and 4. The learned counsel appearing for the plaintiff submits that the defendants have not filed written statement before the court below. The Trial Court ought to have proceeded to pass the 6 sought decree in exercise of the power conferred under Order VIII Rule 5 of the Code of Civil Procedure. The learned counsel further submits that he has filed an application in IA.II of 2013 and requested this Court to permit him to produce the affidavit dated 06th November, 2007 as additional evidence in the aforesaid appeal.
7. The learned counsel further submits that the only ground on which the Trial Court has dismissed the suit of the plaintiff is that the plaintiff has not produced affidavit dated 06th November, 2007 sworn to before the Notary Public and accordingly he seeks leave of the Court to produce the said affidavit. The learned counsel has filed a memo dated 17th January, 2020 enclosing a copy of the Government Order dated 06th March, 1998 passed in No.5(1) JA-BA-2-95-96 regarding Change of Name before the Commissioner for Education, Department of Public Instruction, Government of Karnataka. The same reads as follows:
"State Government Order on Change of Name Before Commissioner for Education Department of Public Instructions Government of Karnataka 7 Date 06th March 1998 No.5(1) JA-BA-2-95-96 Secretary to Government of Karnataka, Department of Education has informed to the Commissioner for Education Department of Public Instruction by his letter dated 17th March 1998 in No.106/DTB 93(B) on Change of Name, caste, father adopted father, date of Birth, etc. the letter has stated that any person seeking any change in his name, Father's name, adopted father's name, date of birth, or caste should obtain a decree in a competent court of law only to effect his prayer."
8. Having produced the Government Order dated 06th March, 1998, the learned counsel for the appellant submits that it is a public document and it can be looked into for the purpose of deciding this appeal, even when it is not marked as an Exhibit.
9. The learned High Court Government Pleader, Smt. Anitha H.R., appearing for respondents No.1, 2 and 4 submits that since the appellant has not produced the affidavit dated 06th November, 2007 to the satisfaction of the Trial Court, and therefore, the appeal deserves to be dismissed.
10. It is pertinent to mention here that the defendants have not filed written statement before the court below. The defendants have neither cross-examined the plaintiff nor entered into the witness box. When a party approaches the Trial Court 8 for obtaining a decree for change of his name, it is difficult, if not impossible, to produce the document in support of change of his name. The finding recorded by the Trial Court while dismissing the suit was that the plaintiff has not produced the affidavit dated 06th November, 2007 before the Court below. The plaintiff has shown cause for not producing the affidavit dated 06th November, 2007 before the Trial Court by way of an affidavit accompanying the application filed under XLI Rule 27 of the Code of Civil Procedure.
11. It is settled principle of law that the Appellate Court should not travel outside the record of the lower court and cannot take any evidence in appeal. This Rule elucidates the provision of Section 107(d) of the Code of Civil Procedure. As an exception to the general Rule stated above, in that, it enables the Appellate Court to take additional evidence in the circumstances mentioned therein. Power to admit additional evidence is discretionary in nature circumscribed by limitations specified in Order XLI Rule 27 of the Code of Civil Procedure and 9 the test being whether the appellate would be able to pronounce judgment without such additional evidence.
12. In a catena of decisions, the Hon'ble Supreme Court as well as this Court have held that the appellate court must record substantial reasons as to why it found admission of additional evidence to be necessary, and further if finds it necessary to admit, an opportunity should be given to the opposite party to rebut any interference arising from its resistance by leading other evidence.
13. In the instant case, the ground on which the Trial court has dismissed the suit is that the plaintiff has not produced the affidavit in question resulting in dismissal of the suit. However, the plaintiff with cogent reasons, has produced the affidavit dated 06th November, 2007 before this Court. Having thoroughly examined the material on record, the same would fortify the case of the plaintiff while considering the law declared by this Court as stated infra.
14. In order to fortify his case, the learned counsel for the appellant placed reliance on a judgment dated 10th December, 10 2013 passed in RFA No.947 of 2013 in the case of SHREENIDHI M.A. v. GOVERNMENT OF KARNATAKA AND OTHERS wherein, this Court, at paragraphs 14 and 15 has observed as follows:
"14. The suit for the change of name cannot be dismissed on the ground that the details of astrological advice are not furnished. Besides, the appellant is not agitating any pre-existing right. The change of name is always for the future.
15. Thus, not finding any good reasons to uphold the judgment and the decree under appeal, I set aside the same. The change of name does not put the respondents or any third party to any prejudice. The change of name may or may not help the appellant (plaintiff). The efficacy of the astrological advice cannot be tested in the courts of law. These are the things which depend upon the belief system of the individuals and the communities to which they belong. The objective verification of the correctness of the astrological advice cannot be insisted for."
15. After considering the material on record, the finding recorded by the Trial Court with regard to not producing relevant document, I do not find any good reason to uphold the judgment and decree under appeal and accordingly I set aside the same. 11 In view of the law declared by this Court in the case of SHREENIDHI M.A. (supra), the change of name does not put the defendants or any third party to any prejudice. In view of the same, I pass the following:
ORDER
1. Appeal is allowed.
2. Judgment and Decree dated 06th August 2012 passed in OS No.6579 of 2011 by the XL Additional City Civil and Sessions Judge at Bangalore is set aside.
3. The appellant is permitted to change his name from Rajashekara H.G. to Rajesh H.G.
4. The appellant is directed to publish his change of name in leading Daily having wide circulation in Bangalore, within two weeks from the date of receipt of the certified copy of this Judgment.12
5. Thereafter, the change of name shall be reflected in the SSLC Marks card and such other documents by the respondent authorities as and when it is issued.
No order as to costs.
Sd/-
JUDGE lnn