Bangalore District Court
Sri.Harsha.G vs ) The Secretary on 2 July, 2020
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 2nd day of July, 2020
PRESENT: Sri.Rama Naik, B.Com., LL.B.,
(Name of the Presiding Judge)
O.S.No :261/2019
PLAINTIFF SRI.HARSHA.G
Aged about 25 years,
S/o.Sri.Gangaraju.V
R.at No.11, Ahana 4th Cross,
K.V.Temple Road,
Shanthi Layout Main Road,
Ramamurthy Nagar,
Bengaluru -560 016.
[By Pleader Sri.N.V.Srinivasa]
/Vs/
DEFENDANTS 1) The Secretary,
Karnataka Secondary Education
Examination Board,
Malleshwaram, 6th Cross,
Bengaluru -560 003.
2) The Director,
Department of Pre-University
Education,
Bengaluru.
[By Pleader - Smt.Shantha B.Mullur
I Addl.District.Govt.Pleader]
3) The Registrar,
Visveshwaraya Technological
University, Belgaum.
[By pleader Sri.Santosh.S.Nagarale]
Date of Institution of the suit : 09.01.2019
Nature of the Suit : Declaration
Date of commencement of
recording of evidence : 19.12.2019
Date on which the Judgment was
pronounced : 02.07.2020
Year/s Month/s Day/s
Total Duration : -- 05 23
(RAMA NAIK)
VI ADDL.CITY CIVIL & SESSIONS JUDGE
BENGALURU CITY
JUDGMENT
This suit is filed by Plaintiff for declaring his name as "Trishan.G" and for directing Defendants to make necessary correction in school records.
2) Plaintiff's case, in brief, is that, Plaintiff studied SSLC at 'Sri Sudhabama English School', Indiranagar, Bangalore, during the year 2008. He completed his II PUC. He joined Visveshwaraya Technological University, Belgaum. In his school records, his name has been recorded as "Harsha.G"
It is stated that, he wanted to change his name from "Harsha.G" to "Trishan.G" as per numerology.
For the said purpose, he approached Defendants for necessary corrections in school records. They insisted decree from the Court. It is stated that, Plaintiff got issued legal notice dated 07.11.2018 to Defendants calling upon them to make suitable correction in the school records. Notices were duly served on them. They replied that they have no authority to change the school records. Hence, prays for decree.
3) Defendants No.1 and 2 marked their appearance through 1st Additional District Government Pleader. Defendant No.3 marked its appearance through his Advocate. It did not choose to file its written statement.
4) Defendants No.1 and 2, in their written statement, have stated that, suit is barred by limitation as the same is filed after a lapse of considerable time. There is no cause of action to file this suit. As per Circular issued by Commissioner of Education Department, there is no provision for change of name. For all these reasons, pray for dismissal of suit.
5) Heard learned Counsel for Plaintiff and learned 1st ADGP for Defendants No.1 and 2.
Perused the written argument filed by Plaintiff. Also perused the record.
6) Following Issues have been framed by this Court :
1) Whether Plaintiff is entitled to declaratory relief in respect of assuming name 'TRISHAN.G.'?
2) Whether suit is barred by limitation?
3) Whether there is no cause of action to file this suit?
4) Whether Plaintiff is entitled to the reliefs as prayed for?
5) What Order or Decree?
7) Plaintiff, in this suit, has been examined as P.W.1 and got marked Exs.P.1 to P.9 in support of his case. Defendants No.1 to 3 have not chosen to adduce any evidence.
8) My finding to the above Issues are :
Issue No.1 - In the Negative; Issue No.2 - Does not arise; Issue No.3 - In the Affirmative; Issue No.4 - In the Negative; Issue No.5 - As per final order, for the following :
REASONS
9) Issues No. 1 and 3: As both these Issues are connected with each other, they are taken up together for discussion.
This suit came to be filed by Plaintiff for declaration of his name as 'Trishan.G' and for necessary correction in school records, contending that, his name is 'Harsha. G'. In his SSLC, PUC and Degree marks cards, his name has been entered as 'Harsha.G'. He wanted to change his name from 'Harsha.G' to 'Trishan.G' as per numerology and approached Defendants to make necessary correction in school records. They insisted for decree from the Court. Therefore, legal notice as required under Section 80 of CPC got issued to Defendants to make necessary correction in school records. Defendants did not heed to the request of Plaintiff, hence, this suit is filed for declaring his name as 'Trishan.G' and for necessary correction in all his educational records.
10) P.W.1 has reiterated the plaint averments in his affidavit filed in lieu of his examination-in-chief. Ex.P.1 is SSLC marks card of Plaintiff issued by 1 st Defendant, wherein, Plaintiff's name is mentioned as 'Harsha.G'. Ex.P.2 is Consolidated Statement of Marks issued by 3rd Defendant, in which, Plaintiff's name is mentioned as 'Harsha.G.' Ex.P.3 is marks card issued by 2nd Defendant, wherein, Plaintiff's name is shown as 'Harsha.G'. Exs.P.4 to P.6 are notary attested copies of Pan Card, Voter Identity Card and Aadhaar Card of Plaintiff. They disclose the Plaintiff's name as 'Harsha.G.' Ex.P.7 is Horoscope of Plaintiff. Exs.P.8 and P.9 are 'The Indian Express' and 'Kannada Prabha' newspapers, dated 11.01.2020, which disclose the fact that Plaintiff has changed his name as 'Trishan.G' vide Affidavit dated 09.01.2020 and Publication has been made to the said effect.
11) Documentary evidence coupled with oral testimony of P.W.1 makes it clear that, Plaintiff's name is 'Harsha.G'. Plaintiff, in his plaint, states that he wanted to change his name from 'Harsha. G' to 'Trishan.G' as per numerology. It is to be noted that, as per numerology, Plaintiff has not changed his name by way of declaration in the form of affidavit and made publication to that effect as on the date of filing of this suit. Exs.P.8 and P.9 substantiate the fact that, after one year of filing the suit, Plaintiff has published his change of name in Exs.P.8 and P.9. Exs.P.8 and P.9 disclose that change of name has been published as per Affidavit dated 09.01.2020. No such affidavit for change of name is produced before the Court. Anyhow, as on the date of filing of this suit, there was no declaration by Plaintiff as to change of his name. Without any declaration as to change of name and without any documents in order to show his name as 'Trishan.G', Plaintiff made requisition to Defendants and thereafter, issued legal notice dated 07.11.2018 under Section 80 of CPC. No documents of whatsoever in nature have been produced to show that on 07.11.2018 or prior to that, Plaintiff has changed his name from 'Harsha. G.' to 'Trishan.G'. Moreover, there are no pleadings in the plaint to show that under what basis, Plaintiff seeks declaration of change of name as 'Trishan.G.' In absence of proof, perhaps, Defendants might not have considered the claim of Plaintiff made in the notice. Had Plaintiff produced proper documents with respect to change of his name, they might have considered the claim of Plaintiff. There was no cause for Plaintiff to give Section 80 notice on 07.11.2018 and to file this suit on 09.01.2019, because, at that time, Plaintiff's name remained unchanged. It is therefore clear that, as on the date of filing of this suit, Plaintiff had no cause of action to file this suit. Without cause of action and supportive documents, it is hard to declare the name of Plaintiff as 'Trishan.G'.
12) In Smt.Dorasanamma Vs. State of Karnataka (RFA No.284/2014 (DEC) decided on 02.09.2016), Hon'ble High Court was pleased to hold that, "...There need not be a mistake in furnishing the name while admitting into the Educational Institution and the name can be changed according to the wish of the candidate". Para-9 of the Judgment supra reads thus :
"9. The appellant filed a suit seeking for declaration, declaring her changed name as Divya.G. instead of Dorasanamma. The change of Name Act provides that name of a student up to secondary level also can be changed by getting judgment and decree from the jurisdictional court. Without the decree passed by the Competent court, the name cannot be changed in the school records. When the student attains majority and if he/she has an intention to change his/her name, the intention must be disclosed through an affidavit sworn to before the Court Officer/Notary or Magistrate in a Stamp Paper of Rs.20/- and the same has to be published in two leading news papers to make known to the general public regarding change of name. So far as student is concerned, change of name in the school records is done only on furnishing the judgment and decree by the competent Civil Court. In view of that, the appellant filed a suit seeking for declaration to declare her name as Divya.G as provided under the Change of Name Act. The reasons assigned by the trial court to dismiss the suit is contrary to the change of Name Act. There need not be a mistake in furnishing the name while admitting into the Educational Institution. The name can be changed according to the wish of the candidate. The change of Name Act provides for the same. In the instant case, none of the respondents objected for change of name. The necessary documents with regard to swearing of the affidavit in a stamp paper before the competent authority and also two paper publications made available to the court. Hence, the question of dismissing the suit for change of name is contrary to law".
(underlined by me)
13) From the ratio laid down in the judgment supra, it has been clear that, the name can be changed; however, intention to change the name is required to be disclosed through affidavit sworn in before the Notary Public and same has to be published in two daily leading newspapers to make known to the general public. In that situation, declaration as to assuming name can be sought for. In this case, no such affidavit is produced. Paper publications at Exs.P.8 and P.9 have been taken subsequent to filing of this suit. At the time of issuance of Section 80 notice, no such publication came into existence. Hence, Defendants could not have addressed the claim of Plaintiff. When fact being thus, question of exercising discretionary power in granting the declaratory relief does not arise; accordingly, I answer Issue No.1 in the negative and Issue No.3 in the affirmative.
14) Issue No.2 - Defendants No.1 and 2 contend that, suit filed by Plaintiff is barred by limitation, as the same has been filed after lapse of considerable time. PW.1 has been cross- examined on the said aspect of the matter. In his cross-examination, it has been specifically deposed that, due to his repeated illness, in the month of October, 2019, his astrologer advised him to change his name and accordingly, he filed this suit on 09.01.2019. Nothing has been elicited from the mouth of PW.1 to prove that suit filed by Plaintiff is barred by limitation. In 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."
15) In this background, relief sought for by Plaintiff is to be looked into. Plaintiff has sought for declaration of his name and consequent correction in the school records. Article 58 deals with declaration simpliciter without any consequential 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, it has been held 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. ......."
16) Hence, I am of the view that, Plaintiff's suit being one for declaration with a direction to Defendants to make necessary correction in school records, it squarely comes under Article 113, which states that, cause of action arises when right to sue accrues. If astrologer's advise is taken into consideration, no cause of action has arisen for Plaintiff to seek the relief for declaration as on the date of filing of the suit. In the circumstances, it can be said that, Plaintiff's relief for declaration of his name as 'Trishan.G' is premature one. Hence, considering the point of limitation does not arise; accordingly, I answer this issue.
17) Issue No.4 - Learned 1st Addl.Dist. Govt. Pleader for Defendants No.1 and 2 submits that, Plaintiff has filed this suit against the officials of the Government and as per Order XXVII Rule 5-A of CPC, Government ought to have been made as party to the suit. It is contended that, suit filed without 'State' being made as party, is not maintainable. Even though, there is no pleadings and evidence in this regard, since provisions of law make it mandatory to array 'State' as party to the suit, where its officials are made as parties, it is necessary to assail the submission of learned Counsel for Defendants No.1 and 2. It is to be noted that, Plaintiff has made Secretary of Karnataka Secondary Education Examination Board as Defendant No.1 and Director of Department of Pre-University Education as Defendant No.2. Both are representing the Government of Karnataka. As per Order XXVII Rule 5-A of CPC, Government shall be joined as a party in a suit against a Public Officer. It is relevant to read Rule 5-A. It reads thus :
" 5A. Government to be joined as a party in a suit against a public officer.- Where a suit is instituted against a public officer for damages or other relief in respect of any act alleged to have been done by him in his official capacity, the government shall be joined as a party to the suit."
18) Rule 5-A mandates that, when a suit is instituted against a public officer for damages or other relief in respect of any act done by him in his official capacity, the Government shall be joined as a party to the suit. This proposition of law has been further reiterated in N.C.Channabasappa vs. Assistant Education Officer [RSA No.736/1989, decided on 25-03-1991]. Hon'ble High Court of Karnataka was pleased to hold that :
"9. That Order 27, Rule 5-A of Civil Procedure Code mandates that the Government be made a party whenever an officer is sued for damages in the discharge of his duties or for any other relief is not in doubt, therefore, the lower Appellate Court was justified in dismissing the suit for non- joinder of proper and necessary party".
19) In the instant case, Plaintiff has sought for relief against the Government by arraying its officials as Defendants No.1 and 2, without making the Government as party to this suit as contemplated under Order XXVII Rule 5-A of CPC. As per Section 79 of CPC, when a suit is instituted against a Government, it must be made as party to the suit and it must be referred to as 'State' in the suit. Under such circumstances, Government ought to have been made as party to this suit. Suit has been filed in contravention of mandatory provisions of Order XXVII Rule 5-A of CPC.
20) For the foregoing reasons, this Court is of the view that, Plaintiff has failed to prove that, as on the date of filing of this suit, there exists material to show that he has changed his name from 'Harsha. G' to 'Trishan.G'. From Exs.P.8 and P.9, it has been clear that, Plaintiff has filed suit before coming into force of Exs.P.8 and P.9 without affording any opportunity to Defendants to consider his claim on the basis of Exs.P.8 and P.9. Suit has been filed without there being any cause of action and without compliance of mandatory provisions as envisaged in Order XXVII Rule 5-A of CPC. In that view of the matter, Plaintiff is not entitled to the relief as sought for; accordingly, I answer Issue No.4 in the negative.
21) ISSUE NO.5 : In view of the foregoing discussion and findings on Issues No.1 to 4, I pass the following:
ORDER (1) Suit of Plaintiff is hereby dismissed.
(2) Parties to bear their own costs.
(3) 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 2nd day of July, 2020.) (RAMA NAIK) VI Addl.City Civil & Sessions Judge, Bengaluru City.
ANNEXURE I. LIST OF WITNESSES EXAMINED ON BEHALF OF :
(a) Plaintiff's side :
P.W.1 - Mr.Harsha.G, dtd.19.12.2019
(b) Defendants side : N I L II. LIST OF DOCUMENTS EXHIBITED ON BEHALF OF :
(a) Plaintiff's side :
Ex.P.1 SSLC Certificate of Plaintiff
Ex.P.2 B.E Consolidated Statement of Marks of
Plaintiff issued by Visvesvaraya
Technological University, Belgaum Ex.P.3 PU Certificate of Plaintiff issued by Department of Pre-University Education Ex.P.4 Notary attested copy of PAN Card of Plaintiff Ex.P.5 Notary attested copy of Election Identity Card of Plaintiff Ex.P.6 Notary attested copy of Aadhaar Card of Plaintiff Ex.P.7 Notary attested copy of Horoscope of Plaintiff Ex.P.8 Paper publication in 'The New Indian Express' dtd. 11.01.2020 regarding change of name of Plaintiff.
Ex.P.9 Paper publication in ' Kannada Prabha' dtd. 11.01.2020 regarding change of name of Plaintiff.
(b) Defendants side : NIL VI Addl.City Civil & Sessions Judge Bengaluru City.