Bangalore District Court
Smt.Shobha.C vs ) The Chief Secretary on 10 November, 2021
KABC010165762021
Govt. of Karnataka TITLE SHEET FOR JUDGMENT IN SUITS
Form No.9(Civil)
Title Sheet for
Judgment in suits
(R.P.91)
IN THE COURT OF THE VI ADDL. CITY CIVIL & SESSIONS JUDGE
AT BENGALURU CITY
(CCCH.11)
Dated this the 10th day of November 2021
PRESENT: Sri.Rama Naik, B.Com., LL.B.,
(Name of the Presiding Judge)
O.S.No.4231/2021
PLAINTIFF SMT.SHOBHA.C
W/o.late Sri.M.Nagaraj
Aged about 46 years
R/at No.312, 9th Main, Hanumanthanagar
Bengaluru -560 019.
[By Pleader Sri.V.Raviprakash]
/Vs/
DEFENDANTS 1) THE CHIEF SECRETARY
Government of Karnataka
Vidhana Soudha
OS.4231/2021
2
Dr.B.R.Ambedkar Veedhi
Bengaluru - 560 001
[By Pleader Smt.Kiran Pradeep-
IV ADGP]
2) THE COMMISSIONER
Bruhat Bengaluru Mahanagara Palike
N.R Square, Hudson Circle
Bengaluru -560 002.
3) THE CHIEF REGISTRAR OF BIRTHS &
DEATHS
Government of Karnataka
7th Floor, V.V.Towers
Dr.Ambedkar Veedhi, Bengaluru -560 001.
4) THE COMMISSIONER
Medical Officer of Health
Padmanagar Range,
C.T Chennammanakere
Opp. to SSM School, BBMP
Bengaluru .
[By Pleader Sri.K.N.Srikanta Dutta]
Date of Institution of the suit : 11.08.2021
Nature of the Suit : Declaration
Date of commencement of recording
of evidence : 21.10.2021
OS.4231/2021
3
Date on which the Judgment was
pronounced : 10.11.2021
Year/s Month/s Day/s
Total Duration : -- 02 29
(RAMA NAIK)
VI ADDL.CITY CIVIL & SESSIONS JUDGE
BENGALURU CITY
JUDGMENT
Suit is filed by Plaintiff for direction to Defendants to rectify the names of the parents of her deceased husband as " Muniswamy and Kenchamma" in the death records of her husband Sri. M.Nagaraj.
2) In nutshell, facts stated in the plaint are that Plaintiff is the legally wedded wife of Sri.M.Nagaraj, who died on 19.04.2021 due to Covid-19 in Meenakshi Hospital, Hanumantha Nagar, Bengaluru.
OS.4231/2021 4 He died intestate leaving behind Plaintiff and his daughter as his surviving legal heirs.
3) It is stated that, at the time of death of her husband, she and her daughter were also suffering from Covid-19 and both were hospitalized.
4) It is stated that, after discharging from hospital, she completed the funeral rites of her husband and thereafter, during the month of May 2021, she obtained the death certificate of her husband.
5) It is stated that after going through the details mentioned in death certificate, she noticed that details of her deceased husband's parents have been wrongly mentioned as "late Chinnappa and Rathnamma".
6) It is stated that the correct names of her husband's parents is "late Muniswamy and late OS.4231/2021 5 Kenchamma", whereas, in the death certificate of her husband, the names of parents of Plaintiff is mentioned.
7) It is stated that she approached Defendants on 13.07.2021 and requested them to correct the parents names of her deceased husband in the death certificate. At that stage, Defendants informed that they have no authority to make corrections except the decree of the Court.
8) It is stated that despite issue of legal notice dated 20.07.2021, Defendants did choose not to comply with the request made in the notice. Hence, prays for decree.
9) Defendant No.1 marked its appearance through IV Additional District Government Pleader [IV ADGP]. Defendants No.2 to 4 marked their appearance through their advocate. Defendant No.1 did choose not to file its written statement.
OS.4231/2021 6
10) Defendants No.2 to 4, in their written statement, state that suit is bad for non-joinder of necessary parties as Joint Director of Statistics and hospital authorities are necessary parties to this suit.
11) It is stated that notice claims to have been issued by Plaintiff does not mention the provision of law. No notice as required under Section 482 of the Karnataka Municipal Corporation Act has been issued to Defendants No.2 to 4 before institution of the suit.
12) It is stated that as per the information furnished to the hospital at the time of admission to the hospital, the names of the parents of Plaintiff's husband have been entered in records of Defendants. Hence, prays for dismissal of the suit as not maintainable.
OS.4231/2021 7
13) Issues that have been framed by this Court are as follows :
1) Does Plaintiff prove that the parents names of her husband are Muniswamy and Kenchamma respectively?
2) Does Plaintiff further prove that in the death certificate of her husband, the names of Plaintiff's parents have been wrongly mentioned?
3) Do Defendants No.2 to 4 prove that Plaintiff has not issued statutory notice as required under law?
4) Do Defendants No.2 to 4 prove that suit filed by Plaintiff is bad for non-joinder of necessary parties?
5) What Order or Decree?
14) Plaintiff has got examined as PW.1 and got marked Exs.P.1 to P.18 on her behalf. Defendants No.1 to 4 have chosen not to lead their evidence.
15) Heard learned Counsel for Plaintiff as well as Defendants No.2 to 4. Perused the written OS.4231/2021 8 argument filed by Defendants No.2 to 4, and the records.
16) My findings on the above Issues are :
Issue No.1 : In Affirmative;
Issue No.2 : In Affirmative;
Issue No.3 : In Negative;
Issue No.4 : In Negative;
Issue No.5 : As per final Order, for the following :
REASONS
17) Plaintiff seeks direction to Defendants to rectify the names of parents of her deceased husband in the death records of her husband maintained by Defendants No.2 to 4.
18) Argument that has been canvassed by Defendants No.2 to 4 is that without seeking declaration to declare the correct names of the parents of Plaintiff's husband, no relief of direction OS.4231/2021 9 can be granted, and therefore, suit filed without seeking the relief of declaration is not maintainable.
19) In the plaint, it is pleaded that Plaintiff's husband died due to Covid-19 in Meenakshi Hospital, Hanumantha Nagar, Bengaluru. It is pleaded that, at that time, Plaintiff and her daughter were also hospitalized due to Covid-19.
20) It is further pleaded that, after funeral rites of her husband, she obtained death certificate of her husband and then, she came to know that the names of parents of her husband have been wrongly mentioned in the death certificate of her husband.
21) It is also pleaded that the correct names of parents of her husband is "Late Muniswamy and Late Kenchamma", instead, in death certificate of her husband the names of her parents are mentioned.
OS.4231/2021 10
22) A plain reading of plaint averments makes it clear that declaration of the names of parents of Plaintiff's husband is explicitly implied in the relief of direction to Defendants to rectify the names of parents of Plaintiff's husband in the death records of her husband.
23) Order VII Rule 7 of CPC states that plaint shall state specifically the relief to be claimed. Rule 7 reads thus :
"7. Relief to be specifically stated.- Every plaint shall state specifically the relief which the plaintiff claims either simply or in the alternative, and it shall not be necessary to ask for general or other relief which may always be given as the Court may think just to the same extent as if it had been asked for. And the same rule shall apply to any relief claimed by the defendant in his written statement."
24) From the above provision of law, it would be clear that it shall not be necessary to ask for general or other relief which may always be given as the Court may think just to the same extent as if it had been asked for.
OS.4231/2021 11
25) The Hon'ble High Court of Karnataka in Ibrahim vs. Ismail and Another, [2008(5) Kar.L.J. 118], was pleased to hold that "If party is found to be entitled to such relief on facts established on evidence, Court can grant same even though it is not specifically stated in plaint, provided relief so grant is based on same cause of action, not inconsistent with plaint claim, not occasioning prejudice to other party and not barred by time on date of presentation of plaint - In construing plaint, Court must have regard to all allegations made in plaint and look at substance of matter and not merely its form".
26) From the facts pleaded in the plaint and from the sum and substance of the evidence of PW.1, it is clear that Plaintiff's suit is for declaration of the names of parents of her husband and for consequent direction to Defendants to make necessary correction in death records of her husband. In that circumstance, merely because OS.4231/2021 12 Plaintiff has not specifically sought for declaratory relief in the plaint, it cannot be said that suit is not maintainable. Such general relief can very much be granted to Plaintiff as the same is based on same cause of action and is not inconsistent with the relief claimed in plaint. In that view, there is no impediment to entertain the claim of Plaintiff. 27) Issue No.3 : Defendants No.2 to 4 contend that no notice, as required under Section 482 of the Karnataka Municipal Corporation Act, has been issued to them before institution of the suit and therefore, suit filed by Plaintiff is not maintainable.
28) Notice dated 20.07.2021 at Ex.P.3 establishes the fact that statutory notice as required under law has been issued to Defendants by Plaintiff. A bare perusal of Ex.P.3 makes it clear that the same has been issued under Section 80 of the Code of Civil Procedure, 1908 and Section 482 of the Karnataka OS.4231/2021 13 Municipal Corporation Act, 1976, stating the cause of action; the name, description and place of residence of Plaintiff and the relief which she claims.
29) Exs.P.4, 6 and 7 establish the fact that notice at Ex.P.3 has been addressed to Defendants No.2 to
4. Exs.P.9 and P.11 further establish the fact that notice at Ex.P.3 has been duly served to Defendants No.2 and 4.
30) Above documents make it clear that suit has been filed after complying with the provisions of Section 80 of CPC and Section 482 of KMC Act. Merely because a separate notice under Section 482 of the KMC Act is not issued, the same cannot be construed as no notice is issued under Section 482 of the KMC Act. Section 482 of KMC Act is akin to Section 80 of CPC. Sections 80 of CPC and 482 of KMC Act read thus :
" 80. Notice - (1) [Save a otherwise provided in sub-section 92), no suit shall OS.4231/2021 14 be instituted] against the Government (including the Government of the State of Jammu and Kashmir) or against a public officer in respect of any act purporting to be done by such public office in his official capacity, until the expiration of two months next after notice in writing has been delivered to, or left at the office of
---"
" 482. Institution of suits against municipal authority, officers and agents.-
(1) no suit shall be instituted against the Corporation or any municipal authority, Corporation Officer or servant, or any person acting under the direction of the same, in respect of any act done in pursuance or in execution, or intended execution of this Act or any rule, bye-law, regulation or order made under it or in respect of any alleged neglect or default in the execution of this Act or any rule, bye-
law, regulation or order made under it until the expiration of [Sixty days] after a notice has been delivered or left at the Corporation office or at the place of abode of such officer, servant or person, stating the cause of action, the relief sought, and the name and place of abode of the intending plaintiff, and the plaint shall contain a statement that such notice has been so delivered or left."
31) Section 80 of CPC states that no suit shall be instituted in respect of any act done by public servant in his official capacity without two months' prior notice. Section 482 of KMC Act specifies that no suit shall be instituted against the corporation or OS.4231/2021 15 corporation officer in respect of any act done without prior notice of sixty days. A meaningful reading of both provisions, it is clear that purpose of both the provisions is to enable the Government to examine the claim put forth in the notice and to curtail litigation. If the general applicability of CPC is taken into consideration, merely because non- issuance of notice under special statute does not invalidate the notice issued under the general law. Purpose of issuance of notice under the provisions of both statutes is one and the same. Be that as it may. In the instant case, Plaintiff has issued the notice by mentioning both Section 80 of CPC and Section 482 of KMC Act.
32) It is to be noticed that it is not at all the case of Defendants No.2 to 4 that they have not been served with statutory notice. On the contrary, Exs.P.4, 6, 7, 9 and 10 prove that notice has been duly sent to them and the same has been received OS.4231/2021 16 by them. Despite service of notice, they have neither replied nor complied with the demand made therein.
33) In Salem Advocate Bar Assn. (2) Vs. Union of India [(2005) 6 SCC 344], the Hon'ble Supreme Court was pleased to hold thus :
" The two months' period mentioned in Section 80 has been provided for so that the Government shall examine the claim put up in the notice and has sufficient time to send a suitable reply. The underlying object is to curtail litigation. The object is also to curtail the area of dispute and controversy. Similar provisions also exist in various other legislations as well. Wherever the statutory provision require service of notice as a condition precedent for filing of suit and prescribed period therefore, it is not only necessary for the Government or departments or other statutory bodies to send a reply to such a notice but it is further necessary to properly deal with all material points and issues raised in the notice."
34) In that view, it can be fairly said that there is no substance in the contention of Defendants No.2 to 4 that no statutory notice as required under Section 482 of KMC Act has been sent to them.
OS.4231/2021 17 Accordingly, I answer the above Issue in the negative.
35) Issue No.4 : It is the contention of Defendants No.2 to 4 that suit of Plaintiff is bad for non-joinder of necessary parties, as Plaintiff has not made Joint Director of Statistics and the hospital authorities as parties to this suit.
36) Cause title of plaint goes to show that Commissioner of BBMP; Chief Registrar of Births and Deaths; and Commissioner, Medical Officer of Health, BBMP have been arrayed as Defendants No.2 to 4.
37) In fact, Ex.P.1, death certificate, has been issued by Defendant No.3, who is the necessary party to this suit along with Defendant No.1. It has not been explained as to how the Joint Director of Statistics and hospital authorities are necessary parties to this suit.
OS.4231/2021 18
38) Section 8(1)(b) of the Births and Deaths Act, 1969 casts a duty on the Medical Officer in-charge or any person authorized by him to give information to the Registrar in respect of births and deaths in a hospital. It is the Registrar, Births and Deaths, who registers the births and deaths and issues certificate of births or deaths to the concerned. If deaths take place in the hospital, the only duty cast upon the Medical Officer is that he shall inform the same to the Registrar. He is not empowered to issue either birth certificate or death certificate, which can be issued by the Registrar, Births and Deaths. In the instant case, such authority lies with Defendant No.3. In that view, there is no reason to contend that suit is liable to be dismissed for non- joinder of necessary parties. Accordingly, I answer the above Issue in the negative.
39) Issues No.1 and 2 : Plaintiff's case is that her husband Sri.M.Nagaraj died in the hospital due OS.4231/2021 19 to Covid-19. Death certificate issued by Defendant No.3 mentions the names of parents of her husband as "Chinnappa and Rathnamma" instead of "Muniswamy and Kenchamma".
40) Plaintiff has deposed as PW.1 reiterating the facts stated in plaint. Documents produced by Plaintiff are at Exs.P.1 to P.18.
41) Ex.P.1 is death certificate of Sri.M.Nagaraj. It goes to show that Sri.M.Nagaraj died on 19.04.2021 at Meenakshi Hospital, which comes within the local limits of BBMP. It further goes to show that the father's name of the deceased is mentioned as "Chinnappa" and mother's name as "Rathnamma".
42) Ex.P.2 is Income and Caste certificate dated 04.04.2016 issued by Tahsildar, Bangalore South Taluk, Bangalore District, in the name of Sri.M.Nagaraj. In Ex.P.2, the parents' names of OS.4231/2021 20 deceased Sri.M.Nagaraj is shown as "Sri.Late Muniswami and Smt.Kenchamma".
43) Exs.P.13 and P.14 are SSLC and II PU marks cards of Sri.M.Nagaraj. They go to show that father's name of Sri.M.Nagaraj is "Muniswamy".
44) Exs.P.15 and P.16 are Aadhaar Card and Voter Identity Card of deceased Sri.M.Nagaraj, wherein the father's name of Sri.M.Nagaraj is shown as " Late Muniswami".
45) Exs.P.17 and P.18 are Aadhaar Card and Voter Identity Card of Plaintiff. They go to show that the name of Plaintiff's husband as "Sri.M.Nagaraj".
46) From the above documents, it is clear that Sri.M.Nagaraj is the husband of Plaintiff. He died in Meenakshi Hospital on 19.04.2021. His parents names are "Muniswami and Kenchamma". Same OS.4231/2021 21 has been established by Income and Caste Certificate, SSLC and PU marks cards, Aadhaar and Voter Identity cards. However, death certificate mentions the names of parents of Plaintiff's husband as "Chinnappa and Rathnamma".
47) PW.1, in her cross examination, has specifically deposed that both she and her husband were hospitalized at a time and at that time, her parents' names have been entered as parents' names of her husband.
48) In view of documentary evidence coupled with oral testimony of PW.1, it can be fairly said that the names of parents of Plaintiff's husband are "Muniswami and Kenchamma", however, death certificate of Sri.M.Nagaraj mentions his parents' names as "Chinnappa and Rathnamma" instead of "Muniswami and Kenchamma".
OS.4231/2021 22
49) Despite issue of legal notice at Ex.P.3, Defendants have not complied with the demand made in the notice, instead they have insisted for the decree of the Court. In that circumstance, only option left open to Plaintiff is to file a suit to obtain the decree relating to correction of the names of parents of her husband and same would enable Defendants No.2 to 4 to incorporate the correct names of the parents of Plaintiff's husband in the death records of her husband Sri.M.Nagaraj. Accordingly, I answer the above Issues in the affirmative.
50) Issue No.5 : For the foregoing discussion and findings on Issues No.1 to 4, I proceed to pass the following :
ORDER (1) Suit filed by Plaintiff is hereby decreed.
OS.4231/2021 23 (2) It is declared that the names of the parents of Plaintiff's deceased husband are "Muniswami" and " Kenchamma".
(3) Defendants are hereby directed
to incorporate the names of the
parents of Plaintiff's husband in the death of records of Sri.M.Nagaraj as "Muniswami" and " Kenchamma".
(4) Draw Decree accordingly.
(Dictated to the Judgment Writer directly on computer, typed matter corrected and then pronounced by me in open court, on this the 10th day of November 2021) (RAMA NAIK) VI Addl.City Civil & Sessions Judge Bengaluru City OS.4231/2021 24 ANNEXURE I. List of witnesses examined on behalf of :
(a) Plaintiff's side :
P.W.1 - Smt.Shobha.C, dtd.21.10.2021
(b) Defendants side : N I L II. List of documents exhibited on behalf of :
(a) Plaintiff's side :
Ex.P.1 Death Certificate of Plaintiff's husband
Sri.M.Nagaraj
Ex.P.2 Income and Caste Certificate dtd.04.04.2016 Ex.P.3 Office copy of legal notice dtd.20.07.2021 Ex.P.4 To Postal Receipts Ex.P.7 Ex.P.8 Unserved RPAD Ex.P.8(a) Original Notice dtd.20.07.2021 Ex.P.9 To Postal Acknowledgments Ex.P.11 Ex.P.12 Letter dtd.13.07.2021 addressed to Health Officer, Basavanagudi, Bengaluru, by Plaintiff Ex.P.13 Notary attested copy of SSLC Marks card of Plaintiff's husband Sri.M.Nagaraj Ex.P.14 Notary attested copy of 2nd PU marks of Plaintiff's husband Sri.Nagaraja M OS.4231/2021 25 Ex.P.15 Notary attested copy of Aadhaar Card of Plaintiff's husband Sri.M.Nagaraj Ex.P.16 Notary attested copy of Voter Identity Card of Plaintiff's husband Sri.M.Nagaraj Ex.P.17 Notary attested copy of Aadhaar Card of Plaintiff Ex.P.18 Notary attested copy of Voter Identity Card of Plaintiff
(b) Defendants side : NIL VI Addl.City Civil & Sessions Judge Bengaluru City.
OS.4231/2021 26