Delhi District Court
Sh. Kartik Kishan Sood vs Council For Indian School Certificates on 22 February, 2012
IN THE COURT OF SH HARJYOT SINGH BHALLA
CIVIL JUDGE-01, SOUTH DISTRICT: SAKET COURTS,
NEW DELHI
SUIT NO.171/11
ID no. 02406C0041362011
IN THE MATTER OF :
Sh. Kartik Kishan Sood
S/o Smt. Rashmi Sood & Sh. Abhay Sood
R/o A-3/606, Printers Apartments,
Secot-13, Rohini,
Delhi-85. ...............Plaintiff
VERSUS
1 Council for Indian School Certificates
Examination, New Delhi.
Through Its Chief Executive/Chairman
47, Pragati House, IIIrd Floor,
Nehru Place, New Delhi.
2 Ministry of External Affairs,
Government of India,
Through Regional Passport Officer,
Bhikaji Kama Place,
New Delhi. ........Defendants
SUIT FOR DECLARATION AND MANDATORY INJUNCTION
Date of Institution : 24.02.2011
Date of reserving the Order : Oral
Date of pronouncement : 22.02.2012
J U D G M E N T (ORAL):
1 By this order, I shall dispose off the above suit for declaration Suit no. 171/11 Page 1/8 and mandatory injunction.
BRIEF FACTS CULLED OUT FROM THE PLEADINGS:
Plaintiff's Case
2 It is the case f the plaintiff that plaintiff is a citizen of Indai and was born on 03.06.1992. He attained the age of majority on 03.06.2010. Plaintiff had been admitted in school in St. Edwerd School, Shimla, Himachal Pradesh in 1999 by her grandmother as his parents were residing in Delhi and plaintiff was residing with her grandmother at Shimla. At the time of admission, the plaintiff's date of birth was wrongly entered in the records as 04.02.1992 instead of 03.06.1992. As the plaintiff was a child at the relevant time, he was not aware that his date of birth had been wrongly mentioned. 3 This error in the records also encrypting in the certificate given by ICSE, 2009. It is stated that the actual date of birth is duly reflected in the passport issued by defendant no. 2. The two documents, therefore, show different dates. After attaining the age of majority, the plaintiff discovered the mistake and asked his parents and other relatives about the reason of the discrepancy. He was informed that his actual date of birth is 03.06.1992 which was also reflected in the birth certificate. Plaintiff approached the defendant no. 1 for correction in his date of birth but the defendant no. 1 refused to do so. At these grounds, the present suit has been instituted for relief of declaration declaring the plaintiff's actual date of birth as 03.06.1992. Plaintiff has also sought consequential relief of mandatory injunction against the defendant no. 1 seeking direction against the defendant to make necessary correction in the certificate of secondary education examination by changing date of birth from 04.02.1992 to 03.06.1992 and to issue a correct certificate. Plaintiff has also prayed for costs.
Defendant no. 1's Case as per Written Statement Suit no. 171/11 Page 2/8 4 Defendant no. 1 entered appearance and filed his written statement. The defendant no. 1 has taken a preliminary objection that this court has no subject matter jurisdiction. It is averred that Delhi School Education Act expressly barred cognizance taken by Civil Courts in respect of anything done or initiated to be done under the said Act. It was averred that suit was bad for non joinder of necessary party and the same had not been properly valued for the purpose of jurisdiction and court fees. On merits, it has been averred that in terms of the examination regulations, no change in the date of birth of a candidate is permissible at later stage. Plaintiff was fully aware of the terms of examination and suit is barred by law of estoppal, waiver and acquiescence. It has been averred that defendant no. 1 recorded the date of birth as 04.02.1992 as forwarded by the school of the plaintiff and even in his registration form, his date of birth was mentioned as 04.02.1992, which form was duly signed by the plaintiff as well as by principal of the school. It is averred that therefore, the defendant no. 1 cannot be blamed and no illegality has been committed by the defendant. Reliance has been placed upon the Rule A(6)(i)&(ii) of Chapter 4 of the Examination Regulations is relevant and is reproduced as under :-
"Name/s and date of Birth: Special attention must be paid to entering correctly the name/s of candidates and their mother's, father's and / or guardian's name. Attention also needs to be paid to entering the correct date of birth of candidates. The Certificate will show the Name/s and "Date of Birth" as certified by the Head of the School at the time of entry. No subsequent change in the name/s or date of birth will be permitted, except, if:
(i) The Council's office makes a mistake in copying the Name/s, Date of Birth from the Registration Form on to the Certificate, and
(ii) (a) The head of the candidate's school certificates with due justification that he / she made a mistake in Suit no. 171/11 Page 3/8 entering the Name/s/Date of Birth in the Registration Form or that after satisfying himself / herself of the need to do so he/she has changed the school records.
(b) (i) Correction fo the Name/s, Date of Birth will be examined by the Council provided the application is made within a period of one year of passing the ICSE Examination.
(ii) If applications are made for correction of name/ date of birth after a lapse of one year, they will be considered where such changes have been permitted b y the Court of Law and notified in a Government gazette. In th event of the Court of law allowing the change of name of a candidate, the same shall be carried out by the Board after obtaining relevant documents concerning change of name published in an official gazette."
5 The defendant also denied that plaintiff ever approached the defendant for carrying out necessary correction regarding his date of birth. Even otherwise, since the change was not permissible under the examination regulation even if the plaintiff had approached, the change would not even made.
Defendant no.2's Case as per Written Statement 6 The defendant no. 2 also entered and submitted a letter by PGO (Policy), Regional Passport Office, Delhi. The defendant no. 2 has stated that the passport records date of birth as 03.06.1992 and the plaintiff may approach the defendant no. 1 for rectification of date of birth in the school certificate thereafter, defendant no. 2 never appeared in the matter through any employee or counsel. In any event, defendant no. 2 was only a proforma defendant as per the plaint.
7 On the basis of the pleadings of the parties, following issues are Suit no. 171/11 Page 4/8 framed vide order dated 09.08.2011:-
a Whether the court has no subject matter jurisdiction to entertain the present suit?OPD b Whether the suit barred by a estoppel/limitation?
OPD
c Whether the plaintiff is entitled to the relief of
declaration as prayed?OPP
d Whether the plaintiff is entitled to the relief of
mandatory injunction as prayed for ?OPP
e Relief.
8 Plaintiff has led evidence and entered the witness box as a
witness. He exhibited his birth certificate as Ex.PW1/3, the passport as
Ex.PW1/1, the secondary school certificate as issued by Indian School Certificate as issued by Indian School Certificate Examination (ISCE) as Ex.PW1/2. He was cross examined by Counsel for the defendant no.1. The defendant no. 1 did not lead evidence, however, regulations of the Indian Certificate of Secondary School Examination (ICSE) and same can always be read against defendant no.1. Although, no formal proof has been led by defendant no. 1 to prove this document.
9 Having examined the pleadings and the evidence adduced, I shall now deliver my findings on the issues framed. 10 Issue no. (a):Whether the court has no subject matter jurisdiction to entertain the present suit? Onus of proving this issue was on the defendant. However, the defendant has not led any evidence in support of this issue and no provision has been cited which bars the jurisdiction of this court. On the contrary, the Regulations of Indian Certificate of Secondary Education Examination which have been filed by the defendant Suit no. 171/11 Page 5/8 and can always be read against the defendant without formal proof are of relevance. Chapter IV Rule A (6)(b)(i) is relevant and reads as follows:-
A to A page no. 17 yellow flag 11 Thus, as per the Regulations itself entries as to date of birth shall not be changed by the defendant no. 1 after a lapse of one year of the passing of ICSE examination, unless so permitted by a court of law. To my mind, it cannot be stated that a civil court has no jurisdiction to adjudicate upon, the correct date of birth of a person and such suits are generally covered by Section 9 of CPC as well as Section 34 of the Specific Relief Act.
At the cost of repetition, it may be noted that the first prayer in the suit is that the date of birth of the plaintiff be declared as 03.06.1992. This issued is accordingly decided against the defendant.
12 Issue no. (b): Whether the suit barred by a estoppel/limitation? Onus of proving this issue was on the defendant. As far as the aspect of limitation is concerned, the suit was filed on 24.02.2011 and period of limitation prescribed for filing a suit is three years from the date when the right to sue accrues. It has to be kept in contemplation that even if the date of birth of plaintiff is taken as 04.02.1992 and not 03.06.1992 as the plaintiff is trying to prove the suit has been filed within three years of the plaintiff attaining majority i.e. within three years of 04.02.2010. Therefore the suit cannot be held to be barred by limitation (see Section 6 and 8 of The Limitation Act, 1963).
13 As far as the question of estoppel is concerned, the contents of the examination form which is at best a contract cannot bind a minor. The plaintiff was admittedly a minor at the time when the examination form was signed by him. It is to be kept in contemplation that the form was counter signed by the Principal and the plaintiff who was under the supervision of the Suit no. 171/11 Page 6/8 Principal would have little choice while filing the form and more specifically for going against the school records. It is not the case of the defendant no. 1 that any prejudice has been caused to defendant no. 1 because of the representation made by the plaintiff about his age more specifically when as per Chapter I Rule B (5), there is no age limit for taking the examination one way or the other, therefore, there is no question of estoppel. 14 Issue no. (c): Whether the plaintiff is entitled to the relief of declaration as prayed? Onus of proving this issue was on the plaintiff. Plaintiff has exhibited his passport as well as date of birth certificate. The passport as well as the date of birth certificate Ex.PW1/1 and Ex.PW1/3 respectively show his date of birth as 03.06.1992. Witness has deposed that his grandmother had erroneously given his date of birth as 04.02.1992 as his parents were at Delhi and he was with his grandmother at Shimla, Himachal Pradesh. In his cross examination, witness has maintained that the facts about his actual date of birth came to his knowledge only after he had passed the ICSE Examination. There is no further probe on this statement. On preponderance of probabilities, the plaintiff has been able to prove his case a averred. This issue is decided in faovur of the plaintiff. 15 Issue no. (d): Whether the plaintiff is entitled to the relief of mandatory injunction as prayed for ? Onus of proving this issue was on the plaintiff. Plaintiff deposed in para no. 9 of his affidavit that he had approached the defendant no. 1 but the defendant no. 1 refused to correct the date of birth. There is no probe on the statement during his cross examination. The testimony has therefore gone unrebutted. Plaintiff has been able to prove that he had approached the defendant no. 1 who refused to make the necessary corrections. Plaintiff has made out a case for grant of mandatory injunction against the defendant no. 1. This issue is decided in Suit no. 171/11 Page 7/8 favour of the plaintiff and against the defendant.
16 Issue no. (e) Relief: Suit of the plaintiff is decreed for the relief of declaration declaring his date of birth as 03.06.1992. The suit is also decreed for the relief of mandatory injunction directing the defendant no. 1 to change the date of birth of the plaintiff in its records as per the regulations more specifically Chapter IV Rule A (6) (b) (ii). As far as the costs of the suit are concerned, in his cross examination, plaintiff admitted that there is no mistake on part of the defendant no. 1 while recording the date of birth in the certificate issued by it Ex.PW1/2. It is also admitted that this date was as per the information given in the examination form. The request and the filing of the suit are beyond the period of one year prescribed by the regulation and no fault can be attributed to the defendant no. 1 for refusing to make the correction without an order of the court. It may be pertinent to note that at the time plaintiff was given admission in the school, he was benefited by the incorrect date of birth i.e. 04.02.1992 instead of 03.06.1992 as his age at the commencement of the academic year which is generally 1st of April varied by one year making him eligible to seek admission one year in advance. The fault was on part of the grandparents of the plaintiff and plaintiff has gain advantage of completing his formal education one year before people of his age. In my view, the defendant no. 1 had to contest the present suit without any fault on its part. Even though the suit has been decreed in favour of the plaintiff, the defendant ought to be compensated. Accordingly, costs of Rs. 5000/- are awarded to the defendant and against the plaintiff. 17 Decree sheet be prepared accordingly.
Announced in the open Court Harjyot Singh Bhalla,
dated 22.02.2012. Civil Judge-1, South District,
New Delhi.
Suit no. 171/11 Page 8/8