Delhi District Court
Presently Residing At vs I.S.C.E on 22 October, 2011
IN THE COURT OF MS. NEHA, CIVIL JUDGE03(SOUTH),
SAKET COURTS COMPLEX, NEW DELHI.
Suit no. 290/10
Unique ID no. 02406C0471082010
IN THE MATTER OF:
Inderjeet Yadav
S/o Sh. Dadan Yadav,
Permanent Resident of:
30A, Harding Road,
Patna, Bihar.
Presently residing at:
431, BlockC&D, PocketI,
DDA SFS Flats, Shalimar Bagh,
Delhi ........Plaintiff
Versus
I.S.C.E.
(Council for Indian School Certificate Examinations)
4748, 3rd Floor,
Pragati House,
Nehru Place, Delhi110019. .....Defendant
C. S. No.290/10 1 of 11
Counsel: Ms. Deepika Jain, Ld. counsel for Plaintiff.
Sh. Jaideep Bedi, Ld. counsel for defendant.
DATE OF INSTITUTION : 08.07.2010
DATE OF RESERVING THE ORDER : 12.10.2011
DATE OF DECISION : 22.10.2011
JUDGMENT
( Suit for Declaration and Mandatory Injunction)
1. Vide this judgment I shall decide the suit of the plaintiff for declaration and mandatory injunction.
2. The facts in brief as per the plaint are that the plaintiff was born at his permanent address at Patna, Bihar on 27.12.1992. He got his primary education till 7th standard in Varanasi, UP. The plaintiff passed his Xth class from ISCE Board i.e. the defendant in the year 2008. The actual date of birth of the plaintiff is 27.12.1992 and by mistake the date of birth in Xth class certificate is mentioned as 13.02.1989 instead of 27.12.1992.
3. The Principal of Indian Cambridge School has certified that the date of birth of the plaintiff was wrongly mentioned as 13.02.1989 instead of 27.12.1992. As per bylaws of the defendant, if application for correction of date of birth by the council is made within a period C. S. No.290/10 2 of 11 of one year of passing of the ICSE examination, then it can be done by the defendant, but if this application for correction of name/date of birth is made after lapse of one year then the same will be considered by a court of law only.
4. The plaintiff noticed the mistake done by the defendant at the time of his admission in B.Com (P) course at Delhi University on 16.06.2010. The plaintiff applied for correction of date of birth before the office of the defendant but the same was not done as the same was applied after lapse of one year of passing of examination. The plaintiff is left with no remedy except to file the present suit against the defendant for correction of date of birth in class Xth certificate. Hence the plaintiff has filed the present suit seeking following reliefs:
(a) a decree of declaration that the date of birth of the plaintiff is 27.12.1992 instead of 13.02.1989.
(b) a decree of mandatory injunction in favour of the plaintiff and against the defendant, thereby directing the defendant to issue a fresh Xth class certificate to the plaintiff containing his correct date of birth i.e. 27.12.1992;
5. Defendant has entered appearance and filed WS taking preliminary objections that this court has no jurisdiction to entertain C. S. No.290/10 3 of 11 the present suit and the plaint does not disclose a cause of action to file the present suit. The suit of the plaintiff is liable to be dismissed for concealment of material facts. The suit of the plaintiff is also liable to be dismissed for non joinder of necessary parties as Indian Cambridge School is a necessary party for adjudication of dispute in the present suit. It is also contended by the defendant that the suit is barred by law of estoppel, waiver and acquiescence. Further the defendant has denied the allegations of the plaintiff.
6. The plaintiff has filed replication to the WS of the defendant and denied the contentions of the written statement. In the replication, the plaintiff has reasserted the averments made in the plaint.
7. From the pleadings of the parties, following issues were framed:
(1) Whether the suit of the plaintiff is barred by law / estoppel / waiver? OPD (2) Whether the suit of the plaintiff is barred by Delhi School Education Act?OPD (3) Whether the plaintiff is entitled to decree of declaration?
OPP (4) Whether the plaintiff is entitled to decree of mandatory C. S. No.290/10 4 of 11 injunction? OPP (5) Relief, if any.
8. The plaintiff examined himself as the only witness PW1 and tendered his evidence by way of affidavit Ex.PW1/A. The plaintiff has relied upon following documents:
1. Certificate issued by Indian Cambridge Shcool, Dehradoon is Ex. PW1/1
2. Statement of marks is Ex. PW1/2
3. Pass certificate is Ex. PW1/3
4. Birth certificate is Ex. PW1/4.
The defendant has not examined any witness in defence and defence evidence was closed vide order dated 12.10.2011.
9. I have perused the material on record and carefully considered the submissions of Ld. counsels for the parties. My issue wise findings are as below:
10. Issue no.1 Whether the suit of the plaintiff is barred by law / estoppel / waiver? The onus to prove this issue was on the defendant. The defendant has not examined any witness to prove that suit of the plaintiff is barred by law / estoppel / waiver. In the absence of any evidence, this court C. S. No.290/10 5 of 11 holds that the suit of the plaintiff is not barred by law / estoppel / waiver. Therefore this issue is decided against the defendant and in favour of plaintiff.
11. Issue no.2.
Whether the suit of the plaintiff is barred by Delhi School Education Act?
The onus to prove this issue was on the defendant. The defendant has not examined any witness to prove that the suit of the plaintiff is barred by Delhi School Education Act. The defendant has not placed on record any rule or regulation of the defendant which shows that the suit of the plaintiff is barred by Delhi School Education Act. Hence this issue is decided against the defendant and in favour of the plaintiff.
12. Issue no.3 and 4 Whether the plaintiff is entitled to decree of declaration? Whether the plaintiff is entitled to decree of mandatory injunction? Both these issues are taken together as both the issues require common discussion. The onus to prove both the issues was on the plaintiff. The plaintiff has examined himself as PW1. PW1 has tendered his evidence by way of affidavit Ex. PW1/A. In the affidavit C. S. No.290/10 6 of 11 the plaintiff has substantially reiterated the contents of the plaint.
13. In the crossexamination, the plaintiff has stated that when he applied for admission in Bcom (Pass) course at Delhi University then he noticed that the date of birth was not written correctly in the certificate issued by the defendant. Therefore he could not get the admission in the Delhi university.
14. He has also deposed that he approached the defendant in May 2010 personally for correction of date of birth but the defendant refused to correct the date of birth and in the crossexamination, he has deposed that the officers of the defendant advised him to approach the court for correction of date of birth.
15. In the written statement, the defendant has mentioned the rule regarding the correction of name of the candidate / parents and date of birth of the candidates. Rule A(6) (i) & (ii) of Chapter 4 of the Examination Regulations 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 need to be paid to entering the correct date of birth of candidates. The certificate will show the C. S. No.290/10 7 of 11 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 certifies with due justification that he/she made a mistake in entering the Name/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 of 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 by the Court of Law and notified in a Government gazette. In the event of the Court of law allowing the change of name of a C. S. No.290/10 8 of 11 candidate, the same shall be carried out by the Board after obtaining relevant documents concerning change of name published in an official gazette"
16. The rule of the defendant lays down that after the lapse of one year of the passing of examination, the defendant can change the same if the change has been permitted by a court of law. The relevant clause of the rule applicable in the present case is clause (ii) (a) "The head of the candidate's school certifies with due justification that he/she made a mistake in entering the Name/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."
17. The plaintiff has proved on record the birth certificate issued by the competent authority as Ex. PW1/4. The birth certificate has been issued by the Directorate of Statistics and Evaluation, Department of Planning and Development, Government of Bihar. It is duly certified by the competent authority. Presumption under Section 74 and 76 of the Indian Evidence Act can be taken in such circumstances. The certificate has been issued by competent authority which has records of birth and death in the area.
18. Secondly, the school has also issued certificate that the parents C. S. No.290/10 9 of 11 have given wrong date of birth and after being satisfied with the reasons given by the parent and the affidavit in support thereof, the school has changed the date of birth of the plaintiff in its record. The certificate issued by the school is Ex. PW1/1. After being satisfied with the reasons for giving incorrect date of birth by the parents of the plaintiff at the time of filing of application form, the school has changed the date of birth in the records of the school. The certificate has been issued by the school before filing of the present suit. Merely because there has been mistake on the part of the parents of the plaintiff in providing date of birth of the plaintiff at the time of filing of the application form for admission of the plaintiff in the school, does not mean that the plaintiff should be made to suffer for his entire life due to the mistake committed by his parents. This court holds that the correct date of birth of the plaintiff is 27.12.1992. Hence, the issue no. 3 and 4 are decided in favour of the plaintiff and against the defendant.
19. Relief:
The suit of the plaintiff is decreed and it is declared that the correct date of birth of the plaintiff is 27.12.1992 in stead of 13.02.1989 and the defendant is directed to issue a fresh class Xth certificate to the C. S. No.290/10 10 of 11 plaintiff with correct date of birth. Plaintiff is directed to surrender original certificate with the defendant for making necessary changes. Parties shall bear their own cost.
Decree sheet be prepared accordingly.
File be consigned to the record room.
Announced in the open court
today .i.e. 22.10.2011 (NEHA)
Civil Judge03(South)
New Delhi.
C. S. No.290/10 11 of 11