Delhi District Court
Lhamo Kyap vs Regional Passport Office on 4 October, 2012
IN THE COURT OF SH. NAVEEN ARORA, SCJ/RC:
DWARKA COURTS, NEW DELHI
CS NO: 30/12
Lhamo Kyap,
S/o Sh. K. Tashi Dhondup,
R/o H. No. 31, Tara Devi Colony,
Ladhak Budh Vihar,
Monestry Market,
Bela Road, Delhi-110054 ... Plaintiff
Vs
Regional Passport Office,
through Regional Passport Officer,
HUDCO, Trikott-III,
Bikhaji Kama Place, R.K. Puram,
New Delhi. ...Defendant
Date of institution of suit : 30.01.2012
Date on which judgment reserved : 04.10.2012
Date on which judgment pronounced : 04.10.2012
Suit for Mandatory Injunction.
JUDGMENT
1. The present suit was filed by the plaintiff for a decree of mandatory injunction.
As per the case of the plaintiff are that plaintiff is a bonafide Tibetan who was born in India on 06.09.1991 at House No. 25, Camp No.5, Bylakuppe, Distt. Mysore in State of Karnataka, India and parent of the plaintiff has been residing since long at the abovementioned CS NO: 30/12 Lhamo Kyap Vs. Regional Passport Office 1/7 address. It is submitted that plaintiff comes to Delhi and at present has been residing at H. No. 31, Tara Devi Colony, Ladhak Budh Vihar, Monestry Market, Bela Road, Delhi-110054. However, as per the rule and convention applied for the Tibetan, the plaintiff also get registration at Karnataka Police Form No. 296(1) as per the Registration of Foreigners Rules 1939. This rules applies for the Tibetan who are born in India. The annual registration is required to be taken from the concerned police and the plaintiff always obeys the same. It is submitted that parents of the plaintiff are illiterate and only knows the common Tibetan language and plaintiff also knows the Tibetan language with less knowledge of English or Hindi. It is further submitted that inadvertently, one birth certificate of the plaintiff was prepared at the said camp with incorrect entry of date of birth as 06.09.1986 instead of actual date of birth 06.09.1991. It is further submitted that plaintiff later on get the registration of birth certificate from Government of Karnataka through chief Registrar of Births & Deaths at Form No.5 vide dated 10.12.2008 and in the said Birth certificate the actual date of birth of the plaintiff is 06.09.1991. That the plaintiff was issued police clearance certificate by Foreigners Registration Officer and Superintendent of Police, Mysore Distt. Vide dated 22.12.2011 wherein it is mentioned that no adverse notice from 1991 to till the date of issue during his stay in the above said address. The said office has also mentioned the date of birth of the plaintiff as 06.09.1991 as per records. The said certificate is issued on the request of the plaintiff for the purpose of obtaining Visa vide R.C No. 85/06/MYS valid upto 06.08.2012. It is submitted that plaintiff since the Tibetan is supposed to apply for issue of passport through "Bureau of HIS Holiness the Dalai Lama' at 10, Ring Road, Lajpat Nagar-IV, New Delhi-110024 to the defendant. It is further submitted that defendant accordingly issued the passport of the plaintiff with entry of wrong CS NO: 30/12 Lhamo Kyap Vs. Regional Passport Office 2/7 date of birth as 06.09.1986 instead of 06.09.1991 vide passport No. Y0072179 dated 11.09.2008. The plaintiff thereafter, find the wrong entry of date of birth in the said passport, given affidavit through "Bureau of his holiness the Dalai Lama' to the defendant for correction of wrong date of birth. In this regard, the "Bureau of his holiness the Dalai Lama' issued a letter dated 04.04.2011 wherein it was mentioned that the application of the plaintiff for issue of identity certificate has been mentioned and requested for needful assistance to the plaintiff whose date of birth is 06.09.1991. The plaintiff, several time visited the defendant office and requested for correction of date of birth in his passport but no action has been taken by the defendant till date. Hence, this suit.
2. The summons of the suit were issued to the defendant on 01.02.2012.
3. Reply was filed by the defendant wherein it is submitted that Sh. Lhamo Kyap S/o Sh. Tashi Dhondup is a Tibetan origin holding refugee status in India. Accordingly, he registered himself with Foreigners Registration office & Supdt of police, Mysore in 2006 vide RC No. 85/2006 as a Refugee. They are being issued identity certificate which is valid travel document issued by Govt. of India. The acceptance of form and issuance of identity certificate are being dealt through the Bureau of his Holiness, The Dalai Lama, 10, Ring Road Lajpat Nagar, New Delhi and not directly by the applicant. An identity certificate No. Y0072179 dated 11.09.2008 vaild upto 10.09.2018 was issued by this office to Sh. Lhamo Kyap S/o Sh. Tashi Dhondup r/o No. 9/2, 2nd cross, J.M, lane, Balepet, Banglore-560053 on the basis of birth certificate issued by Deptt. Of Home Affairs, Central Tibetan CS NO: 30/12 Lhamo Kyap Vs. Regional Passport Office 3/7 Secretariat of his Holiness the Dalai Lama, Gangchen, Kyishong, Dharamsala-176215, Distt. Kangra (HP) and Registration Certificate issued by Foreigners Registration Office & Suptd. Of police, Mysore, wherein the date of birth of applicant has been clearly mentioned as 06.09.1986 and place of birth as Bylakuppe, Mysore. It is submitted that Government of India does not defend such cases. It is further submitted that where the initial entry has been made on the basis of a supportive document issued by one competent authority i.e School/educational authority and the applicant subsequently requests for a change on the basis of a certificate issued by another competent authority i.e Municipal Authorities etc resulting in conflicting documents for valid proof, the PIA should direct the applicant to procure an order from a First Class Judicial Magistrate to effect the change as per Passport Manual 2001.
4. Replication filed on behalf of the plaintiff to the reply wherein it is submitted that the letter dated 04.04.2011 with reference no. BDL/PRO/2011-12(17) has been forwarded by BUREAU OF HIS HOLINESS THE DALAI LAMA with respect to issue of identity certificate by the defendant vide file no. I-3420/2010 to the defendant. It is further submitted that the BUREAU OF HIS HOLINESS THE DALAI LAMA has also issued/recommended Birth certificate of the plaintiff as 06.09.1991 with hand written comments at the bottom as fresh D.O.B is issued as per GOK, Chief Registrar of Birth & Death office, issued U/s (12/17) dated 10.12.2008. It is submitted that the defendant office himself admitted the application for change of date of birth of the plaintiff on the basis of registration certificate issued by the Department of Home Affairs, Central Tibetan Secretariat of his Holiness, the Dalai Lama, Gangchen, Kyishong, Dharamsala-1762115, CS NO: 30/12 Lhamo Kyap Vs. Regional Passport Office 4/7 Distt. Kangra (H.P), Birth certificate issued by Tehsildar, Periyapatna Taluk, Govt. of Karnataka and Sworn affidavit duly attested by VIII, Addl. Chief Metropolitan Magistrate, Banglore, Karnataka. In the way the plaintiff has been trying to correct the date of birth through the proper channel and proper procedure of law. It is further submitted that the changed date of birth i.e the real date of birth of the plaintiff is 06.09.1991 which is registered on 09.09.1991 by Govt. of Karnataka resulting into issuance of Birth certificate U/s (12/17) vide dated 10.12.2008 with the signature of the concerned Tehsildar i.e the issuing authority. It is submitted that defendant admits that the Government of India does not defend such cases.
5. From the pleadings of parties, the following issues were framed vide order dated 28.03.2012:--
(i) Whether plaintiff is entitled for a decree of mandatory injunction as prayed for in the plaint? OPP
(ii) Relief
6. Thereafter, the matter was posted for plaintiff's evidence. Plaintiff examined himself as PW1.
Plaintiff examined one witness-Sh. Palden Dhondup from the office of Bureau of H. H, The Dalai Lama, 10, Ring Road, Lajpat Nagar- IV, New Delhi-110024 as PW-2 who has brought the birth certificate i.e Ex. PW1/2 and Mark-A, letter dated 04.04.2011 which is mark-D and letter dated 14.08.2012 is Ex. PW2/1.
Plaintiff also summoned the office of Chief Registrar of Birth & Death of Govt. of Karnataka for proving the birth certificate of plaintiff i.e . 06.09.1991 and letter No. SI/VST/PR/421/12-13 dated CS NO: 30/12 Lhamo Kyap Vs. Regional Passport Office 5/7 28.08.2012 has been received from the said office wherein it is stated that birth of plaintiff registered in Bylukuppe village under registration bearing no.22 dated 09.09.1991 and date of birth of plaintiff is 06.09.1991.
Despite grant of opportunity, defendant neither appeared nor cross examined plaintiff. Therefore, whatever PW-1 has deposed on oath, is deemed to have been admitted by defendant.
7. I have heard the arguments and perused the records. My issuewise findings are as follows:
Issue No.1.Whether plaintiff is entitled for decree of mandatory injunction as prayed for in the plaint?OPP The onus to prove this issue was upon the plaintiff. Plaintiff has deposed on oath that he was born on 06.09.1991. He has further deposed on oath that his date of birth was wrongly mentioned as 06.09.1986 instead of 06.09.1991 due to error on the defendant's officials. Plaintiff has also deposed that his date of birth is 06.09.1991 and not 06.09.1986. In support of his deposition, plaintiff has filed on record the copy of birth certificate with incorrect entry of date of birth as 06.09.1986 i.e Ex. PW1/2, copy of birth certificate issued by the Department of Home Affairs Central Tibetan Secretariat of his Holiness the Dalai Lama Gangchen Kyishong, Dharamsala-176215, Distt.
Kangra, Himachal Pradeh i.e mark "A", the copy of birth certificate showing date of birth as 06.09.1991 i.e Ex. PW1/3, the copy of certificate dated 22.12.2011 is mark "B", copy of affidavit is marked as mark "C" and copy of the letter dated 04.04.2011 is marked as mark "D". Document i.e Ex. PW1/1, Ex. PW1/2, Ex. PW1/3 and mark "A" to "D" were also produced before this court by the plaintiff. All CS NO: 30/12 Lhamo Kyap Vs. Regional Passport Office 6/7 these documents show that plaintiff's date of birth is 06.09.1991. The entire evidence of plaintiff remains unchallenged and unrebutted as there has been no cross examination by defendant. Therefore, whatever plaintiff has deposed is deemed to have been admitted by the defendant. Therefore, plaintiff has successfully discharged the onus cast upon him and has proved on record that the passport issued by the defendant wrongly recorded his date of birth as 06.09.1986 instead of 06.09.1991. Accordingly, this issue is decided in favour of plaintiff and against the defendant.
Issue No.2.Relief In view of abovementioned discussion and findings, suit of plaintiff is decreed and defendant is directed to issue new passport to the plaintiff mentioning the date of birth of plaintiff as 06.09.1991 instead of 06.09.1986 as mentioned in the passport application form vide file No.I-3420/2010. Decree sheet be prepared accordingly. File be consigned to record room.
Announced in open court (NAVEEN ARORA )
on 04.10.2012 SCJ/RC/Dwarka Court
New Delhi
CS NO: 30/12 Lhamo Kyap Vs. Regional Passport Office 7/7