Bangalore District Court
Sri.Sharath Shetty vs ) The Head Mistress on 16 October, 2019
Govt.of Karnataka TITLE SHEET FOR JUDGMENT IN SUITS
From 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 16th day of October, 2019
PRESENT: Sri.Rama Naik, B.Com., LL.B.,
(Name of the Presiding Judge)
O.S.No :6408/2018
PLAINTIFF : SRI.SHARATH SHETTY
S/o.Sri.Shashidhar Shetty,
Aged about 21 years,
R/at No.20, 2nd Cross,
Devinagar, C.P.Layout,
Lotte Gollahalli,
Bengaluru -560 094.
(By Pleader Sri.Sunil Kumar.M.R)
-VS-
DEFENDANTS : 1) The Head Mistress,
RELIABLE ENGLISH HIGH SCHOOL
Mathikere, Bengaluru -560 054.
2) Deputy Director of Public
Instructions
Bengaluru North Division,
Opp. To Kaveri Bhavan,
Near Shikshakara Sadan, K.G.Road,
Bengaluru -560 002.
OS.6408/2018
2
3) The Secretary,
Karnataka Secondary Education
Examination Board,
Malleswaram, Bengaluru -560 003.
Date of Institution of the suit : 31.08.2018
Nature of the Suit : Declaration
Date of commencement of recording
of evidence : 21.06.2019
Date on which the Judgment was
pronounced : 16.10.2019
Year/s Month/s Day/s
Total Duration : 01 01 15
(RAMA NAIK)
VI ADDL.CITY CIVIL & SESSIONS JUDGE
BENGALURU CITY.
JUDGMENT
This suit is filed by Plaintiff against Defendants for declaring his date of birth as "23.12.1997" and consequent correction in school records of Defendants.
OS.6408/2018 3
2) Plaintiff's case, in brief, is that, Plaintiff is born on 23.12.1997 at Bowring and Lady Curzon Hospital, Bengaluru, from the wedlock of Sri.Shashidhar Shetty and Smt.Lalitha. Plaintiff states that, Plaintiff pursued his matriculation/SSLC in Defendant No.1 Institution in the year of 2011. Plaintiff is now studying in St.Josephs College of Commerce, Bengaluru. It is stated that, date of birth of Plaintiff was wrongly entered in SSLC Marks card as "31.07.1995" instead of his actual date of birth "23.12.1997". Plaintiff's parents are illiterate and due to mistake made by them, date of birth of Plaintiff has been wrongly entered in school records. It is stated that, Plaintiff requires his date of birth to be changed as per his birth certificate in school records. Said change of date of birth will give Plaintiff's proper age and will be helpful for all his future studies and profession. It is stated that, Plaintiff approached Defendants on 23.03.2018 for getting change of his date of birth in school records.
OS.6408/2018 4 They refused to change the same and asked him to approach the Court for relief. Plaintiff has issued a legal notice to Defendants on 12.04.2018 calling upon them to change his date of birth from 31.07.1995 to 23.12.1997. Notice sent to Defendant No.1 has been returned as 'door locked' and Defendant No.2 has been duly served on 13.04.2018. Even after service of notice, Defendants have failed to rectify the date of birth of Plaintiff in school records nor replied the same, hence, prays for decree.
3) After institution of this suit, suit summons were issued to Defendants. On service of summons, Defendants No.2 and 3 have marked their appearance through their Counsel. In spite of service of summons to Defendant No.1 through publication in 'Hosadiganta' daily newspaper, Defendant No.1 remained absent. Hence, Defendant No.1 has been placed ex-parte.
OS.6408/2018 5
4) Defendants No.2 and 3 have filed their written statement, wherein, it is stated that, suit is not maintainable either in law or on facts. As per the Circular issued by the Commissioner of Education Department, there is no provision to change the date of birth of student in school records. Suit is barred by limitation, as the suit is filed after a lapse of considerable time. There is no cause of action for the suit and the alleged cause of action is imaginary, hence, prays for dismissal of the suit.
5) Heard learned Counsels for Plaintiff, as well as Defendants No.2 and 3. Perused the pleadings and the records placed in this suit.
6) Following Issues have been framed by this Court :
1) Whether the Plaintiff proves that his actual date of birth is "23.12.1997"?
OS.6408/2018 6
2) Whether the Defendants No.2 and 3 prove that there is no provision to change the date of birth in the school records as contended in their written statement?
3) Whether the suit is barred by
limitation?
4) Whether the Defendants No.2
and 3 prove that there is no
cause of action to file this suit
by the Plaintiff?
5) Whether the Plaintiff is entitled
for the relief as prayed in the
plaint?
6) What Order or Decree?
7) Plaintiff, in this suit, has been examined as P.W.1 and got marked Exs.P.1 to P.10 in support of his case. Defendants No.2 and 3 have not chosen to adduce evidence on their behalf.
8) My findings on the above Issues are :
Issue No.1 : In the Affirmative;
Issue No.2 : In the Negative;
Issue No.3 : In the Negative;
OS.6408/2018 7 Issue No.4 : In the Negative;
Issue No.5 : In the Affirmative Issue No.6 : As per final order, for the following :
REASONS
9) Issue No.1 : This suit came to be filed by Plaintiff for declaring his date of birth as "23.12.1997" and consequent prayer for necessary changes in school records of Defendants No.1 and 2.
10) Plaintiff contends that, he was born on 23.12.1997 from the wedlock of Sri.Shashidhar Shetty and Smt.Lalitha at Bowring and Lady Curzon Hospital, Bengaluru. Birth Certificate has been issued by the Commissioner, Corporation of Bengaluru. Plaintiff completed his SSLC in April, 2011 in 1st Defendant Institution. Now, he is studying in St.Josephs College of Commerce, Bengaluru. It is contended that, his date of birth OS.6408/2018 8 was wrongly entered in SSLC marks card as '31.07.1995'. His actual date of birth is '23.12.1997'. Due to illiteracy of his parents, said mistake has occurred. It is a bona fide mistake. If the same is not corrected, Plaintiff would suffer.
11) Plaintiff, in this suit, has been examined as P.W.1. He has reiterated the plaint averments in his examination-in-chief. Plaintiff has produced ten documents, which are marked as Exs.P.1 to P.10. Ex.P.1 is Birth Certificate; Ex.P.2 is true copy of SSLC marks card; Ex.P.3 is legal notice dated 12.04.2018; Exs.P.4 to P.6 are postal receipts for having addressed legal notice at Ex.P.3. Exs.P.7 to P.9 are track consignments for delivering the letter to Defendants' addresses and Ex.P.10 is Letter dated 08.06.2018 addressed to Postal Department for non-receipt of acknowledgments for having served the notice to Defendants.
OS.6408/2018 9
12) On perusal of documentary evidence at Ex.P.1 makes it clear that, it has been issued by the Commissioner, Corporation of Bengaluru, wherein, date of birth of Plaintiff is shown as "23.12.1997". Names of father and mother of Plaintiff are shown as "Shashidhar Shetty" and "Lalitha" respectively. Birth of Plaintiff was registered on 30.12.1997 within 7 days of birth of Plaintiff. Place of Birth has been shown as "Bowring Hospital and L.C. Hospital". In plaint, Plaintiff has specifically pleaded that, he was born on 23.12.1997 from the wedlock of Sri.Shashidhar Shetty and Smt.Lalitha at Bowring and Lady Curzon Hospital, Bengaluru. Same thing has been reiterated in his examination-in-chief. No cross- examination has been made to the effect that, Ex.P.1 does not belong to Plaintiff. Only suggestion that has been put forth by Defendants No.2 and 3 is that, Ex.P.1 does not contain the date of issue and same got created and produced in this suit.
OS.6408/2018 10 Ex.P.1 is a public document. It contains seal and signature of the Issuing Authority. Section 77 of the Indian Evidence Act, 1872, specifically states that, in proof of the contents of public documents, certified copies may be produced. Section 79 of the Indian Evidence Act, 1872 deals with rebuttable presumption of law as to genuineness of certified copies of public documents. It specifies that, "the court shall presume that any officer by whom any such document purports to be signed or certified held when he signed it, the official character which he claims in such paper". More important is that, entry regarding date of birth in Ex.P.1 came to be entered in indisputable time. When such is the case, mere suggestion of Defendants No.2 and 3 that, Ex.P.1 is got created and produced in this suit does not vanish the sanctity of said document. Since Ex.P.1 contains the name of Plaintiff, as well as his parents' names, which establish the facts stated in plaint, OS.6408/2018 11 under such circumstances, naturally, presumption would arise that, Ex.P.1 belongs to Plaintiff and date mentioned in Ex.P.1 is his date of birth. In the absence of contrary evidence to disprove the fact stated in plaint, there is no reason to disbelieve the documentary evidence at Ex.P.1 and oral testimony of Plaintiff regarding Plaintiff's actual date of birth. In view of proved fact, this Court holds that Plaintiff's actual date of birth is "23.12.1997", accordingly, Issue No.1 is answered in the affirmative.
13) Issue No.3: Defendants No.2 and 3 contend that, suit filed by Plaintiff is barred by limitation, as the same has been filed after lapse of considerable time. Plaintiff has been cross examined regarding his knowledge of actual date of birth. He has deposed that, birth certificate produced by him got obtained by his father around 01 year back from the competent authority. In OS.6408/2018 12 Union of India and others Vs. West Coast Paper Mills Ltd., and another [AIR 2004 SC 1596], Hon'ble Supreme Court was pleased to hold that :
"21. A distinction furthermore, which is required to be noticed is that whereas in terms of Article 58 the period of three years is to be counted from the date when 'the right to sue first accrues'; in terms of Article 113 thereof, the period of limitation would be counted from the date 'when the right to sue accrues'. The distinction between Article 58 and Article 113 is, thus, apparent inasmuch as the right to sue may accrue to a suitor in a given case at different points of time and, thus whereas in terms of Article 58 the period of limitation would be reckoned from the date on which the cause of action arose first, whereas, in the latter the period of limitation would be differently computed depending upon the last day when the cause of action therefor arose."
14) In this background, if the relief sought for by Plaintiff is looked into, it may say that, Plaintiff has sought for declaration to rectify the mistake crept in his date of birth and for consequential relief directing Defendants to correct his date of birth in the school records. Article 58 deals with declaration simpliciter without any consequential OS.6408/2018 13 relief, which applies to declaratory suits only. Hon'ble Sikkim High Court was pleased to differentiate the intendment of both Articles 58 and 113 in Karma Doma Gyatso alias Babila Kazi Vs. Mrs.Kesang Choden & Ors. [AIR 2009 Sikkim 6], wherein the Hon'ble High Court was pleased to hold that :
"..... Thus, it is manifest that for the purpose of limitation the relevant Article that applies to the case of declaration with a consequential relief would be the residuary Article 113 and not Article 58 which applies to declaratory suits.
18. It is thus obvious that Article 58 which applies to cases of declaration simpliciter would not be applicable in the present case. Instead, it is residuary Article 113 which is attracted in the case of the Plaintiff. However, the period of limitation prescribed under both the Articles being 3 years when the right to sue first accrues (under Article 58) and when the right to sue accrues (under Article
113), the question as to which of the two Articles applies would not be of much significance particularly in the light of the finding that the right to sue accrued only in the year 2005 and the suit has been filed in the year 2006, i.e. within one year of the right to sue accruing. ......."
15) Hence, I am of the view that, Plaintiff's suit being a declaration as to correction of date of OS.6408/2018 14 birth in school records with a consequential relief of mandatory injunction directing Defendants to make necessary changes in school records, it squarely comes under Article 113, which states that, right to sue accrues. There has been oral evidence of Plaintiff that, he came to know of said mistake in the SSLC marks card when he got the birth certificate from competent authority around one year back and thereafter, he issued legal notice, dated 12.04.2018 at Ex.P.3 to Defendants to make necessary correction in his school records. In these circumstances, it can be said that, Plaintiff has filed this suit within the time as prescribed in Article 113 on coming to know of the mistake in his date of birth, which came to his notice one year back immediately prior to filing of this suit and subsequently, on issuance of legal notice dated 11.09.2018, on which, Defendants have failed to take any steps. Under such circumstances, it can be said that, Plaintiff has OS.6408/2018 15 filed this suit well within the period of limitation as contemplated in Article 113, accordingly, I answer Issue No.3 in the negative.
16) Issues No.2 and 4 : Defendants No.2 and 3 have taken contention that, as per Circular issued by Education Department, no changes in school records are possible, hence, suit is liable to be dismissed. Contention as taken by Defendants No.2 and 3 reads thus :
"8. ..... As per the circular issued by the Commissioner of Education Department, there is no provision to change of date of birth of the student in school records. ... "
17) Defendants No. 2 and 3 have not produced any such Circular. From the contention of Defendants, it can be said that, Defendants have no authority to make changes in school records without the order of Civil Court. In Gunda Naika P.S. Vs. The State of Karnataka and others (RFA No.322/2013 (DEC), decided on OS.6408/2018 16 10.12.2013), the Hon'ble High Court was pleased to hold that, "The only pre-requirement for effecting the change of name in the educational records by the Deputy Director of Public Instructions is the obtaining of the decree from the competent Civil Court". Para-12 of the Judgment reads as follows :
"12. The trial court's reasoning that the appellant has not followed the procedure prescribed by the State and the Central Government is also not tenable. The respondents are in no position to point out any statutory provision or rule or Government order or circular prescribing the procedure for the change of name. On the other hand, the perusal of the circular dated 02/05/2000, shows that, the only pre-requirement for effecting the change of name in the educational records by the Deputy Director of Public Instructions is the obtaining of the decree by the applicant at the hands of the Competent Civil Court".
18) Plaintiff, after coming to know of the mistake in his date of birth, got issued legal notice as per Ex.P.3 to Defendants to make necessary corrections in the school records. However, in spite of service of notice thus given, Defendants have not chosen to OS.6408/2018 17 give reply to the notice thus issued by Plaintiff or to address his claim. In these circumstances, there is no reason for Defendants to say that Plaintiff has no cause of action to file this suit. Only requirement of Defendants is that, there must be an order from the Court to make necessary changes in school records in view of Circular issued by Education Department. In that view of the matter, there is no impediment to grant relief as sought for by Plaintiff in the plaint and the same would enable the Defendants to make necessary changes in school records. Hence, I am of the opinion that, Plaintiff has established his case by placing substantial evidence; accordingly, I answer Issues No.2 and 4 in the negative.
19) Issue No.5: As discussed above, Plaintiff has proved his case by placing documentary, as well as oral evidence. Plaintiff, in his plaint, has pleaded that, if the mistake in his date of birth is not set right, he would suffer lot in future and if the OS.6408/2018 18 same is corrected, it would be helpful for all his future studies and profession. Plaintiff's grievance being reasonable and genuine, if Plaintiff's wrong date of birth is allowed to continue as it is, it would create anomaly in the school records of Plaintiff and same would affect the future prospects of Plaintiff, hence, suitable correction is required in the school records. In that event, I am of the view that, Plaintiff is entitled to the relief as prayed for, accordingly, I answer Issue No.5 in the affirmative.
20) Issue No.6 : In view of the foregoing discussion and findings on Issue No.1 to 5, I am of the opinion that, Plaintiff has established that his correct date of birth as "23.12.1997" and he is entitled to the relief as prayed for; accordingly I pass the following:
OS.6408/2018 19 ORDER (1) Suit of Plaintiff is hereby decreed.
(2) It is hereby declared that
the correct date of birth of
Plaintiff as "23.12.1997".
(3) Defendants are hereby
directed to effect necessary
changes in the educational
records of Plaintiff by rectifying the date of birth as '23.12.1997"
instead of '31.07.1995' (4) Draw decree accordingly.
(Dictated to the Judgment Writer directly on computer, typed matter corrected and then pronounced by me in open court, dated this the 16th day of October, 2019.) (RAMA NAIK) VI Addl.City Civil & Sessions Judge, Bengaluru City.
OS.6408/2018 20 ANNEXURE I. List of witnesses examined on behalf of :
(a) Plaintiff's side :
P.W.1 - Sri.Sharath Shetty, dtd.21.06.2019
(b) Defendants side : N I L II. List of documents exhibited on behalf of :
(a) Plaintiff's side :
Ex.P.1 - Birth Certificate of Plaintiff Ex.P.2 - Attested copy of SSLC Marks Card of Plaintiff Ex.P.3 - Legal Notice dtd.12.04.2018 Exs.P.4 to P.6- Postal Acknowledgments Exs.P.7 to P.9 -Track Consignments Ex.P.10 - Letter issued to Postal authority
(b) Defendants side : N I L
--
VI Addl.City Civil & Sessions Judge Bengaluru City.
OS.6408/2018 21