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Delhi District Court

Ruchika vs Sub­Registrar/Registrar Of Birth & ... on 15 September, 2022

      IN THE COURT OF Ms. HARLEEN SINGH, ADDITIONAL
     DISTRICT JUDGE­04 (WEST), TIS HAZARI COURTS, DELHI


CNR No.DLWT01­002485­2019
RCA DJ No.41/2019


In the matter of :

Ruchika
D/o Mr. Bal Kishan
R/o A­9, Block­A
J.J. Colony, Choukhandi
Tilak Nagar, New Delhi­110018.                            ......Appellant


                               Versus


1.     Sub­Registrar/Registrar of Birth & Death
       Municipal Corporation of Delhi, West Zone
       Delhi.

2.     Regional Passport Office
       Through its Principal Officer/Concerned Person
       Hudco Trikoot­3, Bhikaji Cama Place
       R.K. Puram, New Delhi.                           .....Respondents


              Appeal filed on              :       29.03.2019
              Arguments concluded on       :       27.08.2022
              Judgment pronounced on       :       15.09.2022




RCA DJ No: 41/19                                                Page 1 of 11
 JUDGMENT

1. The present appeal has been filed against the judgment and decree dated 12.02.2018 passed by the learned Senior Civil Judge/Rent Controller (West), Tis Hazari Courts, Delhi in suit bearing CS No.10948/2016 titled Ruchika v. Sub­Registrar & Anr. for injunction and declaration, whereby the suit of the plaintiff was dismissed. For the sake of convenience, the parties shall be referred to in this judgment as per their rank before the learned Trial Court i.e. the appellant shall be referred to as the plaintiff, and the respondents as the defendants.

2. The case of the plaintiff before the learned Trial Court was that she was born on 05.01.1994 at A­9, Block­A, J.J. Colony, Choukhandi, Tilak Nagar, Delhi. The parents of the plaintiff are not well qualified. They had applied to the defendant no.2 for a passport for the plaintiff, after which a passport bearing no. E9315573 was issued by the defendant no.2 to the plaintiff. At that time, the plaintiff was a minor. Due to some clerical mistake on the part of the parents of the plaintiff, or due to some other mistake, the date of birth of the plaintiff was wrongly mentioned in her passport as 08.07.1996 instead of her actual date of birth i.e. 05.01.1994. Subsequently, the plaintiff passed Secondary School from CBSE in the year 2009. Her date of birth is reflected in her Marksheet and Certificate as 05.01.1994. Her Driving Licence also reflects her date of birth as 05.01.1994.

3. It was further the case of the plaintiff that since her date of RCA DJ No: 41/19 Page 2 of 11 birth was not entered in the municipal records, hence the plaintiff and her family applied to the Tehsildar, Patel Nagar, Delhi. After verification and reports, the said Tehsildar passed an order dated 18.11.2009 directing an entry regarding the birth of the plaintiff to be made in the municipal records of the plaintiff. After passing of the said order, the plaintiff filed an application before the defendant no.1 for issuance of a birth certificate. Subsequently, the defendant no.1 issued a birth certificate to the plaintiff vide registration no.MCDOLR09360679 dated 25.11.2009, in which the date of birth of the plaintiff is mentioned as 05.01.1994. Thus, in all the educational documents of the plaintiff, her Driving Licence and the date of birth Certificate issued by the defendant no.1, her date of birth is mentioned as 05.01.1994.

4. It was also the case of the plaintiff that her previous passport issued on 16.07.2004 expired on 15.07.2009. When the plaintiff filed an application with the defendant no.2 for renewal of her passport, vide file bearing no.M­022537/09, the plaintiff filed all her documents reflecting her date of birth as 05.01.1994, but the defendant no.2 refused to accept the same as the previous passport of the plaintiff reflects her date of birth as 08.07.1996. Ultimately, the defendant no.2 closed the file of the plaintiff on 14.11.2014 without renewing her passport. Thus, the plaintiff prayed for directions to the defendant no.2 for renewal of her passport bearing no. E9315573 with her date of birth as 05.01.1994. A declaration to the effect that the date of birth of the plaintiff is 05.01.1994 is also RCA DJ No: 41/19 Page 3 of 11 sought.

5. None appeared on behalf of the defendant no.1, despite service. The defendant no.1 was accordingly proceeded against ex­parte on 25.03.2015.

6. In the Written Statement filed by the defendant no.2, it is contended that the suit is not maintainable and warrants dismissal, as the plaintiff has suppressed relevant facts from the court and has not come with clean hands. The plaintiff has concealed that her previous passport was issued on the basis of the details and the documents provided by the plaintiff herself. Further, in her passport application form bearing File no. M010612, she has specifically mentioned her date of birth as 08.07.1996 and has duly signed the said form. Further, the said application form was accompanied with various documents, including the attested copy of her date of birth Certificate showing her date of birth as 08.07.1996. The said Certificate contained the names of both the parents of the plaintiff and was issued by the Registrar, Births and Deaths. Further, a copy of the election ID card of her father and a declaration signed by both parents affirming the said particulars was submitted. It was contended that the plaintiff could not explain the same, nor did she approach the concerned authority for correction of her date of birth. Even as such, the passport application was supported with a declaration from the parents of the plaintiff. The father of the plaintiff appears to be literate, having signed the said declaration in English.

7. It is the case of the defendant no.2 that as per the office circulars bearing no. vi/401/2/5 dated 29.10.2007 and 15.01.2008 of the Ministry of External Affairs, the date of birth of an applicant cannot be changed by the passport office unless a declaratory order of a court is submitted. It is admitted that an application was moved by the plaintiff in the office of the defendant no.2 for renewal of her passport, vide file no. M­022253709. It is admitted that the defendant no.2 refused to renew the passport of the plaintiff mentioning her date of birth as 05.01.1994 as in her earlier passport, her date of birth was mentioned as 08.07.1996.

8. The plaintiff filed replication to the said Written Statement, whereby all the allegations of the defendant no.2 have been denied and the contents of the plaint have been reiterated. Subsequently, the following issues were framed by the learned Trial Court on 19.09.2015:­ "1. Whether the plaintiff is entitled to the relief of injunction as prayed in para no.1? OPP

2. Whether the plaintiff is entitled to the relief to the declaration as prayed in para no.2?OPP

3. Whether the suit is barred U/s 80 CPC?

4. Relief."

9. In the evidence, the plaintiff has examined herself as PW­1 whereas the defendant no.2 has examined one Giriraj Sharma, Senior Passport Assistant as DW­1. No evidence was led by the defendant no.1.

10. I have heard the arguments advanced by the respective RCA DJ No: 41/19 Page 5 of 11 learned counsels for all sides.

11. Learned counsel for the appellant relied upon the following judgments:­

(i) Swapna Siju v. Union of India & Anr. [2012(4) KerLT 419].

       (ii)    Sunita Sawhney v. Union of India & Ors. [2015
               LawSuit(Del) 6644].

(iii) Jayakumar v. Regional Passport Officer [2015 AIR (Ker) 237].

Learned counsel for the respondent no.1 relied upon the following judgments:­

(i) State of U.P. and Anr. v. Kamal Mustafa Khan & Ors.[2004 (3) AWC 2192].

(ii) Rewati Devi v. Ram Parshad & Anr. [passed in CM no.1460­C of 2007 in RSA no.509 of 2007 by the Hon'ble High Court of Punjab and Haryana on 17.08.2009].

Learned counsel for the respondent no.2 relied upon the following judgments:­

(i) Collector Land Acquisition, Anantnag v. Mst. Katiji & Ors.

[1987 AIR 1353].

(ii) Basawaraj & Anr. v. Special Land Acquisition Officer [passed in Civil Appeal no.6974/2013 and 6975/2013 by the Hon'ble Supreme Court of India on 22.08.2013].

(iii) Union of India v. Sakshi Batra [passed in LPA no.68/2019 by the Hon'ble Delhi High Court on 29.08.2019].

12. Alongwith the appeal, the appellant has filed an application RCA DJ No: 41/19 Page 6 of 11 under Section 5 of the Limitation Act for condonation of delay in filing the appeal. It was argued by the learned counsel for the appellant that after the pronouncement of the impugned judgment and decree, the previous counsel for the appellant/plaintiff forgot to inform her about the same. Thereafter, the appellant made attempts to contact her previous counsel but he was never available. Ultimately, in the second week of March, 2019, the appellant succeeded in contacting her counsel, who then searched his files and handed over the case file of the plaintiff to her on 17.03.2019 (mentioned as 17.03.2018 in para 6 of the application). Thereafter, the appellant contacted another counsel, who prepared and filed the present appeal. Thus, it was argued that the delay in filing the appeal was bonafide and the same may be condoned.

13. On the other hand, the learned counsel for the respondent no.1 argued on similar lines as the reply filed by the respondent no.1, to the effect that the explanation put forth by the appellant was not reasonable, satisfactory or even proper. There is a delay of 435 days in filing the appeal. The appellant is well qualified.

14. The learned counsel for the respondent no.2 also argued on similar lines as the reply filed by the respondent no.2, to the effect that the said application is vague and does not mention any genuine or valid reason for not filing the present appeal within the prescribed limitation period. Further, no documents in support of the application have been filed by the appellant. No sufficient cause has been shown by the RCA DJ No: 41/19 Page 7 of 11 appellant. Further, on 22.01.2018, the Trial court had fixed the matter for 12.02.2018 for clarification/judgment and on the said date, learned counsel for the appellant was also present before the court. Thus, the appellant is deemed to have the knowledge of the date of pronouncement of judgment. It was also argued that the present application is an abuse of the process of law.

15. I have considered the contentions of all sides. The impugned judgment and decree was passed on 12.02.2018. The period of limitation of 30 days for filing the appeal before this court, as per Article 116 of the Schedule to the Limitation Act, 1963, commenced since the said date. It is the case of the appellant that her previous counsel forgot to inform her about the judgment and decree and that despite attempts, he could not be contacted. The appellant has not explained as to what stopped her from approaching the court and finding out the status of her case or any order passed therein. The appellant appears to be an educated person. Merely shifting the blame on the previous counsel shall not be of help to her. There is no averment in the application to the effect that the appellant approached the Bar Council or any other authority regarding the conduct of her previous counsel. The explanation put forth by the appellant for explaining the delay does not appear satisfactory at all. The present appeal was filed on 29.03.2019, after a period of more than one year since passing of the impugned judgment and decree. In the absence of any sufficient cause for not preferring the appeal in time, the application RCA DJ No: 41/19 Page 8 of 11 of the appellant under Section 5 of the Limitation Act, 1963 stands dismissed. It is held that the present appeal is time barred.

16. Even otherwise, the appeal is without any merit. It is the case of the appellant/plaintiff that her parents applied for a passport on her behalf when she was a minor, and that they are not well qualified. Para 4 of the plaint states that due to some clerical mistake on their part or some other mistake, the date of birth of the plaintiff was wrongly mentioned in her passport as 08.07.1996. In her cross­examination, the plaintiff/PW­1 has stated that the Passport Application Form was not filled by her parents but by some third person whose name she could not recall. However, the plaint does not mention that the Passport Application Form of the plaintiff was filled by some third person. The plaintiff has not even mentioned the name of such third person. Further, it is stated that the parents of the plaintiff are not well qualified. However, from the documents filed and relied upon by the defendant no.2, it is evident that the parents of the plaintiff sign in English. They are passport holders. PW­1 also confirmed the same in her cross­examination.

17. In the Written Statement filed by the defendant no.2, it was contended that the Passport Application Form of the plaintiff was accompanied with various documents, including an attested copy of the date of birth Certificate of the plaintiff, which shows her date of birth as 08.07.1996. The said birth Certificate is Ex. DW­1/3. However, in para 3 of the reply to the preliminary objections contained in the replication RCA DJ No: 41/19 Page 9 of 11 filed by the plaintiff, the plaintiff has stated that "It is wrong and denied that plaintiff has submitted any date of birth certificate showing her DOB 08­07­1996 having the name of both her parents issued by the registrar of birth & death". As regards the copy of one ration card, the plaintiff stated that "It shows that birth of the plaintiff was in 1994 hence question of birth certificate of 1996 does not arise". However, during her cross­ examination, the plaintiff/PW­1 was shown the said date of birth Certificate bearing registration no.41271, issued by the Registrar of Births and Deaths, NCT of Delhi in which the date of birth is mentioned as 08.07.1996. The plaintiff/PW­1 responded with saying "Yes, this date of birth certificate is enclosed with this form". Thus, the plaintiff/PW­1 admitted that the said birth certificate mentioning her date of birth as 08.07.1996 was enclosed with her application form for issuance of passport. However, the plaintiff has concealed the said fact in her plaint. She had an opportunity to come clean in the replication, however she did not do so and again denied the existence of any such birth Certificate showing her date of birth as 08.07.1996. Thus, the plaintiff has tried to mislead the court on various occasions and is guilty of concealment/suppression of material facts. The court shall not come to the rescue of such a person.

18. Even as such, the plaintiff has not taken any steps for getting the said date of birth Certificate declared null and void, and has not offered any explanation as to how she is in possession of two separate RCA DJ No: 41/19 Page 10 of 11 date of birth Certificates showing her date of birth as 05.01.1994 and 08.07.1996 respectively. Further, in para 6 of the plaint it is averred that the date of birth of the plaintiff was not entered in the municipal record, hence, the plaintiff moved an application before the concerned Tehsildar. However, if that was the case, how was the date of birth Certificate of the plaintiff (Ex. DW­1/3) was issued in the first place in the year 1996. Further, the plaintiff did not admittedly send any notice to the defendants under Section 80 CPC, prior to filing of the present suit. Both the defendants function as departments of the government. The plaintiff has also not made out any case for her suit to be falling under the exception contained in Section 80 (2) CPC. The judgments relied upon by the learned counsel for the appellant do not help the case of the appellant/plaintiff as they are based upon a different factual matrix.

19. For the foregoing reasons, I hold that there is no infirmity or illegality in the impugned judgment and decree dated 12.02.2018, and the same has been rightly passed by the learned Trial Court. Accordingly, the present appeal stands dismissed. No order as to costs.

20. The Trial Court record be sent back, alongwith a copy of this judgment. Digitally signed by HARLEEN HARLEEN SINGH SINGH Date: 2022.09.15 16:14:20 +0530 Announced in the open court (Harleen Singh) on this 15th day of September, 2022 ADJ­04 (West), Tis Hazari Courts, Delhi RCA DJ No: 41/19 Page 11 of 11