Delhi District Court
Sumit Kumar vs The Secretary on 27 November, 2010
IN THE COURT OF SH. ANAND SWAROOP AGGARWAL:
SENIOR CIVIL JUDGECUMRC (EAST):
KKD COURTS: DELHI
Suit no. 103/09
Unique Case Identification no.02402C0337242009
Sumit Kumar
S/o Sh. Khub Singh
R/o K404, Sewa Nagar, New Delhi.
.......... Plaintiff
Versus
The Secretary
Central Board of Secondary Education
Delhi Regional Office,
12,Institutional Area,
I.P. Extension, New Delhi. .........Defendant
SUIT FOR DECLARATION AND MANDATORY INJUNCTION.
Date of Institution of Suit : 08/04/2009
Date of conclusion of arguments : 22/11/2010
Date of orders : 27/11/2010
Final Order : Suit Dismissed
J U D G M E N T
1. Plaintiff has filed this suit for a decree of declaration and mandatory injunction in favour of plaintiff and against the defendant directing the defendant, its employees, assigns, officers, agents, administrators etc. to replace the names of the adopted/adoptive parents Anand Swaroop Aggarwal SCJCumRC:East, Delhi Suit No. 103/09 Page 1/16 of the plaintiff in place of natural parents of the plaintiff and issue the fresh and new certificates of class 10th and 12th after affecting the above changes.
2. In brief case of plaintiff is that plaintiff is adopted son of Sh. Khub Singh and Smt. Daulat Devi vide registered Adoption dated 29/03/2004 and at the time of adoption plaintiff was minor as plaintiff's date of birth is 09/07/1990. As alleged, adopted/adoptive father of plaintiff had filed a suit for declaration and mandatory injunction bearing case no. 60/68 titlted as "Khub Singh vs. The Director, CBSE" which was dismissed vide orders dated 20/09/2008, interalia, on the ground of non availability of locus standi.
As per plaintiff at the time of admission of plaintiff in school, the plaintiff was minor and was not adopted by the adopted /adoptive parents and thus at the time of admission of the plaintiff the name of his natural parents was mentioned in the school record as Sh. Govind Singh, father and Smt. Usha Devi, mother.
As alleged, plaintiff was adopted by present parents on 29/03/2004 but due to unawareness the name of the natural parents of the plaintiff and the name of the adopted/adoptive parents could not be replaced in place of the natural parents. As per plaintiff, in this regard, adopted/adoptive father of plaintiff got published the said News in the Anand Swaroop Aggarwal SCJCumRC:East, Delhi Suit No. 103/09 Page 2/16 Newspaper, namely Veer Arjun dated 02/09/2007 and thereafter, publication was published in Gazette of India in weekly publication in the month of September 2007. Plaintiff passed 10th class in the year 2005 and 12th class in the year 2007 both from CBSE Board, Delhi. As alleged, adopted/adoptive father of plaintiff approached the office of the defendant after publication of the Gazette in the month of September 2007 for changing the adopted/adoptive parents name in place of the natural parents of plaintiff but the officers of defendant intentionally and deliberately started harassing the adopted/adoptive father of the plaintiff and did not replace the name of adopted parents of plaintiff in place of that of natural parents. Hence this suit.
3. Defendant has contested the suit of plaintiff. Defendant has taken certain preliminary objections to the suit of plaintiff such as that CBSE is an autonomous body which is self financed and CBSE has not been created under a statute and it frame its own rules and is governed by them; that suit of plaintiff is without any cause of action; that suit is barred under Section 80 CPC; that suit is barred by the provisions of Section 41 (i) and (h) of the Specific Relief Act and that suit is barred by doctrine of resjudicata.
On merits, case of defendant is that as per the record of defendant, the father's name of the plaintiff is Sh. Govind Singh and his mother's Anand Swaroop Aggarwal SCJCumRC:East, Delhi Suit No. 103/09 Page 3/16 name is Smt. Usha Devi. As alleged, neither the plaintiff nor his adopted/adoptive father filed any application either to the school or to defendant in respect of anomoly in his parents name. Defendant has denied the averment of plaintiff that his father had approached the defendant for replacement of the names. Defendant admits the factum of filing of earlier suit by the father of plaintiff. Other averments made in plaint regarding adoption of plaintiff while he was minor, unawareness pleaded by plaintiff have been denied by defendant for want of knowledge. The averments made by plaintiff regarding publication of News in Veer Arjun dated 02/09/2007and its publication in Gazette of India, plaintiff passing 10th class in year 2005 and 12th class in the year 2007 both from CBSE have not been denied by defendant. CBSE have not been denied by defendant. As per defendant, even if it is presumed that plaintiff was adopted by Sh. Khub Singh and Smt. Daulat Devi in the year 2004 as alleged by plaintiff, then why did the names of the real parents were furnished in the list of candidates which is filled up at the instructions of the plaintiff and the same is thereafter verified by the school authority and then the same is sent to the defendant. As alleged, believing the same to be true and correct, the particulars furnished in the list of candidates are relected by defendant in the respective certificates of the candidates.
Anand Swaroop Aggarwal SCJCumRC:East, Delhi Suit No. 103/09 Page 4/16 As per defendant, it has to act and work in accordance with the Examination Bye Laws and the provisions made in such by laws expressly barred the defendant to entertain any application which is against the spirit of such bye laws. As alleged, defendant has no provision for change of name and therefore, such request if made to the office of the defendant is not to be entertained.
With this stand, defendant has prayed for dismissal of suit with cost.
4. Plaintiff has filed replication to the written statement of defendant wherein stand taken by defendant for its defence has been denied by plaintiff and the averments made in replication have been reaffirmed. 5.
Vide order dated 09/09/2009, Ld. predecessor of this court framed the following issues:
1. Whether the suit is bad for not serving notice under Section 80 CPC upon the defendant? If yes, its consequences? OPP
2. Whether the plaintiff is entitled for the relief of declaration specially in view of the fact that the certificates were issued on the information furnished by the plaintiff in his application and school record? OPP
3. Whether the plaintiff is entitled for relief of mandatory injunction? OPP
4. Whether the suit is barred by limitation? OPD Anand Swaroop Aggarwal SCJCumRC:East, Delhi Suit No. 103/09 Page 5/16
5. Relief.
Vide order dated 26/04/2010 Ld. predecessor of this court framed the following issues as preliminary issues:
1. Whether the suit of the plaintiff is within limitation?
2. Whether the suit of the plaintiff is not maintainable in its present form in view of the amendment in CBSE Rules 2007?
Initially ld. predecessor of this court had adjourned the case for arguments on the preliminary issues but vide order dated 13/07/2010 ld. predecessor of this court opinied that matter could be decided only if the evidence is completed on merits.
6. To substantiate his case on Judicial file, plaintiff has examined five witnesses. PW1 is Sh. Sumit Kumar plaintiff in person; PW2 is Smt. Daulat Devi adopted /adoptive mother of plaintiff; PW3 is Sh. Khub Singh adopted /adoptive father of plaintiff; PW4 is Sh.Govind Singh real father of plaintiff and DW5 is Smt. Usha Devi real mother of plaintiff. PE was closed on 30/10/2010 by plaintiff by making a separate statement to that effect. On 30/10/2010 Ld. counsel for defendant also made a statement that no witness is to be examined by defendant. DE was closed.
7. I have heard Sh. Y. K. Sharma advocate for plaintiff and Sh. Ram Sharma Advocate for defendant and have gone through the case file very Anand Swaroop Aggarwal SCJCumRC:East, Delhi Suit No. 103/09 Page 6/16 carefully. In the course of arguments, ld. counsel for defendant filed / relied upon case law Sajjad Barkad v/s. CBSE WP(C) 5967/2008 dated 16/04/2009 and also placed on record Notification dated 16/10/2007 making amendments/ additions in the Examination Bye laws particularly in Rule 69.1 of Chapter 9 under Changes and Corrections in name.
8. My issuewise findings are as under:
1.Whether the suit is bad for not serving notice under Section 80 CPC upon the defendant? If yes, its consequences? OPP In the present case there is no averment in the plaint to the effect that plaintiff had served notice under Section 80 CPC on the defendant. The only averments which are contained in the plaint are that adopted / adoptive father of the plaintiff apporached the office of defendant after publication of News in Gazette of India for changing the adopted / adoptive parents name in place of natural parents of the plaintiff but the defendant intentionally and deliberately started harassing the adopted / adoptive father of the plaintiff and did not change the name of natural parents from the school records. Even in the course of plaintiffs evidence, it is not the case of plaintiff that any notice u/s 80 of CPC was served on the defendant. No written application/communication made by plaintiff with defendant/school authorities has been brought on record.
Anand Swaroop Aggarwal SCJCumRC:East, Delhi Suit No. 103/09 Page 7/16 As per plaintiff he had given an application to the school regarding change of name of parents but he has not placed on Judicial file the copy of said application.
CBSE is an autonomous body under the Ministry of Human Resource Development and it is an instrumentality of State. Section 80 CPC mandates a notice of two months before filing of the suit against the Govt. As CBSE is also an instrumentality of the State. It is discharging functions on behalf of the Ministry of Human Resource Development and therefore it is Government within the meaning of Section 80 CPC. Section 80 has been enacted to avoid unnecessary litigation against the Government and wastage of public money. A notice under Section 80 CPC gives an opportunity to the Govt. / its officers to examine the claim so that unnecessary litigation may be avoided. It is also settled law that the provisions under Section 80 is mandatory. In the present case, the plaintiff did not seek exemption under Section 80 (2) CPC. In fact, no application under Section 80 CPC was moved by him. In fact Section 80 (2) CPC had no application in this case as relief sought by plaintiff is not of the nature of urgent or immediate relief. Therefore, the suit is bad for non compliance of Section 80 CPC and the issue is decided against the plaintiff.
Anand Swaroop Aggarwal SCJCumRC:East, Delhi Suit No. 103/09 Page 8/16 ISSUE NO. 2 AND 3 AS FRAMED ON 09.09.2009
2. Whether the plaintiff is entitled for the relief of declaration specially in view of the fact that the certificates were issued on the information furnished by the plaintiff in his application and school record? OPP
3. Whether the plaintiff is entitled for relief of mandatory injunction? OPP ISSUE NO. 2 AS FRAMED ON 26.04.2010
2. Whether the suit of the plaintiff is not maintainable in its present form in view of the amendment in CBSE Rules 2007?
I shall be deciding all the above three issues by common discussion in as much as issues are inter connected.
The issue as regards declaration by the plaintiff will determine the fate of the another issue as regards the mandatory injunction sought for by the plaintiff and also decision on issue framed as regards the amendments in the CBSE Rules 2007 will determine the fate of issue as regards declaration as has been prayed for by the plaintiff.
There is inconsistency in evidence brought by plaintiff as regards the date/time of his adoption by the adopted/adoptive parents. As per Anand Swaroop Aggarwal SCJCumRC:East, Delhi Suit No. 103/09 Page 9/16 averments made in the plaint plaintiff was adopted vide registered adoption deed dated 29.03.2004. As per averments made in para 4 of plaint, at the time of admission of plaintiff in school plaintiff was minor and was not adopted by the present adopted/adoptive parents meaning thereby that plaintiff was adopted by present parents after the plaintiff was got admitted and hence at the time of admission of plaintiff the name of his natural parents was mentioned in the school record as Govind Singh, father and Smt. Usha Devi, mother. As per contents of registered adoption deed, plaintiff was given/taken in adoption on 29.3.2004. PW2 Ms. Daulat Devi in her crossexamination has admitted that adoption deed was prepared at the time of adoption of plaintiff by them but she does not remember the date of adoption of plaintiff.
But as regards time/date of adoption PW2 Mrs. Daulat Devi in her crossexamination has also deposed that plaintiff was adopted by her since the date of his birth and since then he has been residing with her and her husband; PW1 has deposed that his father told him that he was taken in adoption at the time of my birth and since then he is residing with his adoptive parents; PW3 Khub Singh as regards time/date of adoption of plaintiff has deposed that he had adopted the plaintiff when his age was about two and half months; PW4 Sh. Govind Singh in his crossexamination has deposed that plaintiff was given adoption after 56 Anand Swaroop Aggarwal SCJCumRC:East, Delhi Suit No. 103/09 Page 10/16 days of the birth of the child and PW5 Smt. Usha Devi in this regard has deposed that plaintiff was given adoption when he was 8 or 10 days old. In direct contradiction with averments made in para 4 of plaintiff PW3 Mr. Khub Singh in his crossexamination has deposed that he got the plaintiff admitted in Nursery class and at the time of admission he had written name of the real parents of plaintiff on the admission form i.e. Govind Singh and mother Usha Devi. The evidence by plaintiff as discussed in this paragraph is inconsistent with the facts pleaded in preceding paragraph as regards date/time of adoption of plaintiff.
As already observed in the plaint there is no averment that plaintiff/adoptive parents had applied in writing to CBSE for change of his parents name.
No such application, if any, moved by plaintiff before the school authorities has been proved or even brought on record. This suit has been filed on 08.04.2009. On the date of filing of the suit Amended Rule No. 69.1 was in force in as much as said rules come into on 29.06.2007. Even on the date of plaintiff making publication in Newspaper regarding the change of parents name (i.e. on 02.09.2007) or on the date of publication in this regard in gazette of India in 2007, the Amended Rule had come into force. As per case law relied upon by Ld. Counsel for defendant even the applications pending consideration on 29.06.2007 Anand Swaroop Aggarwal SCJCumRC:East, Delhi Suit No. 103/09 Page 11/16 which were filed earlier to 29.06.2007 were liable to be governed by the Amended Rule 69.1. Thus, the issue as to whether plaintiff can be granted the relief as prayed for will have to be decided as per the Amended Rule 69.1 CBSE Examination Bye Laws. It is pertinent to note that plaintiff has not challenged the validity or otherwise of the Amended Rule 69.1 in the present suit and thus this court can grant the relief as prayed for if and only if the amendment in the 10th and 12th class certificates is permissible under the Amended Rule 69.1. More so when the Existing Rule (iv) stands deleted.
Amended Rule (i) reads as under: "(i) No change in name/surname once recorded in the Board's records shall be made. However, correction in the name to the extent of correction in spelling errors, factual typographical errors in the candidates name/surname, father's name/Mother's name or Guardian's Name to make it consistent with what is given in the school record or list of candidates (LOC) submitted by the school may be made.:
Provided further that in no case correction shall include alteration, addition, deletion to make it different (except as mentioned above) from the LOC or the School records."
PW1 Mr. Sumit Kumar, plaintiff himself in his crossexamination has deposed as under: Anand Swaroop Aggarwal SCJCumRC:East, Delhi Suit No. 103/09 Page 12/16 "It is correct that the respective certificates of class 10th were issued to me on the basis of the information furnished byme in the list of candidates. After passing the 10th examination, no complaint regarding change of my parents name was made to CBSE by me. It is correct that at the time of appearing in 12th class board examination, I had furnished the same particulars as furnished by me in 10th class board examination and respective certificates were issued by the board on the basis thereof."
Thus case of plaintiff is not covered under Amended Rule 69.1 CBSE Examination Byelaws in as much as the certificate of 10th and 12th class have been issued to him correctly on the basis of information furnished by him. No error which is permitted to be corrected by Amended Rule has been committed by CBSE while issuing certificates to plaintiff. Proviso to Amended Rule 69.1 bars the prayer of plaintiff. Plaintiff cannot be granted the relief as prayed for merely because changes as prayed for have already been made by other authorities in other documents pertaining to plaintiff. CBSE being governed by its own rules, cannot be directed to make changes which are not permitted under the rules framed by competent authorities. As already observed, validity of Amended Rule is not in issue in this case.
In view of the this discussion all the above issues deserve to be decided against the plaintiff and it is ordered accordingly.
Anand Swaroop Aggarwal SCJCumRC:East, Delhi Suit No. 103/09 Page 13/16 ISSUE NO. 4 AS FRAMED ON 09.09.2009
4. Whether the suit is barred by limitation? OPD ISSUE NO. 1 AS FRAMED ON 26.04.2010
1. Whether the suit of the plaintiff is within limitation?
As per depositions made by plaintiff in his cross examination he came to know about the anomoly in the records of school when he was in 9th standard. The plaintiff passed the 10th class in the year 2005 and he passed the 12th class in the year 2007. The certificates issued by defendant for the 10th and 12th class bears the names of the real parents of the plaintiff. As per plaintiff, he had told the teacher about the correction of names of his adopted parents whereupon the plaintiff was told that the same would be done later on. Going by the above depositions made by the plaintiff it can be said that cause of action had arosen in favour of the plaintiff to file the present suit when the teacher did not accede to the request of the plaintiff regarding replacing the name of real parents of the plaintiff with the names of adopted /adoptive parents. In any case, cause of action arosen in favour of the plaintiff when he passed the 10th class and the certificates issued to him were bearing the names of real parents of the plaintiff. The cause of action again arose when he passed the 12th class and the certificate issued to him Anand Swaroop Aggarwal SCJCumRC:East, Delhi Suit No. 103/09 Page 14/16 again mentioned the names of his real parents instead of adopted/ adoptive parents. It is not out of context to mention here that adopted/ adoptive father of the plaintiff had filed a suit with the same relief as has been sought in the present case but the said suit was dismissed on the ground of locus standi of adopted/adoptive father of the plaintiff to file the said suit in his own individual capacity. The said suit was filed on 09/01/2008 and it was decided on 20/09/2008. The present suit has been filed on 08/04/2009. Be that as it may the Amended Rule 69.1 Examination Bye Laws provided that application for correction in the name/surname will be considered only within 10 years from the date of declaration of the result provided it is forwarded with the documents as enumerated in the Amended rule. The above rule permits the moving of the application for correction in the name / surname within 10 years. To my mind, keeping in view the abovesaid rule, it can be said the present suit has been filed within the period of limitation. To my mind, at the time of decision on the issue as to whether suit has been filed within the period of limitation or not, it is not necessary for the court to make an opinion as to whether the amendment/ correction in the name / surname as has been prayed for by the plaintiff falls within the permissible scope of amended rule 69.1 Examination Bye Laws or not. There is one more angle from which issue of limitation can be considered. The plaintiff was Anand Swaroop Aggarwal SCJCumRC:East, Delhi Suit No. 103/09 Page 15/16 born 09/07/1990. He attained majority in the year 2008. With the attaining of majority he also acquired the capacity to sue the defendant in his own individual capacity. Prior to attaining majority, the plaintiff was under disability to sue the defendant in his own individual capacity. When the limitation is taken to be starting to run, after the plaintiff attaining the majority it can be said that the suit is well within the period of limitation. This issue is accordingly decided against the defendant.
RELIEF:
9. In view of my findings on the issues as regards notice u/s 80 CPC, issues as regards declaration, mandatory injunction, Amended Rule 69.1, suit of the plaintiff merits dismissal and the same is hereby dismissed. Parties to bear their own cost. Decree sheet be prepared accordingly. File be consigned to record room.
Pronounced in the open court (Anand Swarrop Aggarwal) 27.11.2010 SCJCumRC, East Delhi Anand Swaroop Aggarwal SCJCumRC:East, Delhi Suit No. 103/09 Page 16/16