Karnataka High Court
Babu S/O. Shivalingappa Desai vs The Head Master, on 14 September, 2012
Author: Huluvadi G.Ramesh
Bench: Huluvadi G Ramesh
IN THE HIGH COURT OF KARNATAKA
CIRCUIT BENCH AT DHARWAD
Dated this the 14th day of September, 2012
Before
THE HON'BLE MR JUSTICE HULUVADI G RAMESH
Regular Second Appeal 5566 / 2012
Between:
Sri Babu S/o Shivalingappa Desai
27 yrs, Student, R/o Vidyagiri
Bagalkot Appellant
(By Sri Srinand A Pachhapure, Adv.)
And:
1 Head Master
Govt. Higher Primary School
Badagi, Bilagi Tq, Bagalkot
2 Block Education Officer
Bilagi, Bagalkot
3 Principal
Basaveshwar Composite Junior College
Bagalkot
4 Dy. Director of Public Instructions
Navanagar, Bagalkot
5 Secretary
Karnataka State Secondary Education
Examination Board, Bangalore
2
6 State of Karnataka
By its Deputy Commissioner
Bagalkot Respondents
(By Smt Megha C Kolekar, GP for
R1,2,4-6)
This Second Appeal are filed under S.100, CPC praying
to set aside the judgment and decree dated 3.2.2012 in RA
30/2011 by the Senior Civil Judge, Bagalkot.
This second Appeal coming on for Admission, the
Court delivered the following:
JUDGMENT
The plaintiff is in appeal before this Court challenging the judgment and decree passed by the Civil Judge (Sr.Dn.), Bagalkot, in R.A. No. 30/2011, confirming the order of dismissal passed by the Civil Judge (Jr.Dn.) & J.M.F.C., Bagalkot, in O.S. No. 3/2011.
Plaintiff had filed a suit for declaration and mandatory injunction to declare his date of birth as 28.06.1984 and not 01.06.1983 as is mentioned in the school records.
3
The grievance of the plaintiff - appellant is that the school authorities have entered the date of birth as 01.06.1983 in stead of 28.06.1984. According to the plaintiff, he was born at Dr Kanti Hospital, Bagalkot and his date of birth is entered as 28.06.1984 and his name has been entered in the concerned Register maintained by the C M C, Bagalkot, and the plaintiff has prayed for rectification of his date of birth. Hence the suit. After due service of summons, the matter has been contested by the defendants denying the claim of plaintiff and issues were raised and ultimately, the trial Court relying upon the decision reported in (2011)1 KCCR short note 54, in the case of State of Maharashtra and another vs Gorakanath Sitaram Kamble & Ors , wherein the Apex Court referring to the Limitation Act has held that the lapse of 20 years in seeking for change of date of birth being much beyond statutory period, is barred by limitation, has dismissed the suit. The same has been upheld by the lower Appellate Court.
4
Heard the counsel representing the parties. The substantial question of law that arises for consideration is -
Whether the Courts below have committed an error in relying upon the judgment of the Apex Court on the point of Limitation, without considering the genuineness of the entries by the local authorities with regard to the date of birth of the plaintiff who is a student.
According to the learned counsel for appellant- plaintiff, the Apex Court in its decision in respect of a Government servant, who joined the service in the year 1978, wherein after lapse of nearly 26 years he has moved the Court seeking for change of date of birth, stating that it is beyond the statutory period has dismissed the case on the point of limitation. But, here is a case where plaintiff is a student and at the time of entering into the school by oversight the school authorities have wrongly entered the date of birth and in 5 support of genuine date of birth, the entry in some records have been summoned, despite that, relying upon the judgment of the Apex Court, the case of the plaintiff has been negated.
According to the learned Government Pleader on the point of limitation, the appeal filed by the plaintiff has to be dismissed.
Per contra learned Counsel for the appellant contended that the plaintiff came to know about the discrepancy in the date of birth certificate only when he obtained the said certificate on 13.08.2010. Thereafter, immediately after complying with the provisions of Section 80 of CPC and after completion of statutory period, the plaintiff has approached the Trial Court. The suit of the plaintiff is in time from the date of his knowledge of discrepancy in the date of birth. The lower appellate Court by looking into the nature of evidence and contents of the birth certificate having 6 held that the date of birth of the plaintiff is having evidentiary value in the eye of law, ought to have decreed the suit of the plaintiff. Further, the finding of the lower appellant Court has not been challenged by the respondents.
It appears the contention of the plaintiff as regards the date of his knowledge about the discrepancy in the date of birth is well within three years and the suit filed is in time. Ex.P-1 is the date of birth certificate. It is issued duly by the statutory authority and the local authority has mentioned the date of birth as 28.06.1984. But, however, without adverting to the facts, only relying upon the judgment which has been rendered by the Apex Court in respect of a Government servant who sought for change of date of birth at a belated stage i.e., at the fag end of his service, his case has been rejected on the ground of delay and latches. The same has been made applicable to the case of plaintiff, who is a student. However, on coming to know 7 of the real fact and the date of birth certificate which has been issued by the local authority, the court below ought to have considered the same and pass orders granting the relief. The trial Court has committed an error in not considering the case of plaintiff and the fact that he is not an employee or a Government servant, but he is only a student and he has sought for a change based on the genuine Certificate should have been considered.
In the circumstances, the substantial question of law is answered accordingly. The order of the trial Court as well as the lower Appellate Court is set aside. The suit of the plaintiff is decreed directing the respondent authority to enter the correct date of birth of the plaintiff as per Ex.P-1.
Appeal is allowed. No costs.
Sd/-
Judge Hnm/An