Delhi District Court
Naveen Viyas vs Secretary on 11 August, 2010
1/11
IN THE COURT OF SH. S.S. MALHOTRA, ADDITIONAL
DISTRICT JUDGE, KARKARDOOMA COURTS,DELHI
RCA No. : 39/10
Date of Filing of Appeal : 22.2.2010
Date of arguments : 11.8.2010
Date of order : 11.8.2010
Naveen Viyas
s/o Sh.Harjiwan Viyas
r/o H.no 4/51 A, HIG , GDA Flats,
Vaishali, Ghaziabad, U.P Appellant/plaintiff
Versus
1 Secretary
Central Board of Secondary Education,
Shiksha Kendra, Preet Vihar,
Behind Petrol Pump(Bharat Petroleum)
Delhi92
2 The Principal
National Victor Public School,
I.P Extension, Delhi ... Respondent/defendant
ORDER
1 By this order, I shall dispose off the appeal of the appellant/plaintiff Naveen Vyas V Secretary CBSE 2/11 u/o 96 CPC against judgment and decree dt.16.1.2010 passed by the Ld.Trial Court thereby dismissing the suit of the plaintiff which suit was for declaration and mandatory injunction filed by the plaintiff against the defendants with a prayer that decree be passed in favour of the plaintiff and against the defendant thereby directing the defendant no.1 to carry out the necessary changes in the date of birth in the respective records of the plaintiff.
2 Brief facts as stated by the appellant/plaintiff in the appeal are that the appellant/plaintiff filed the abovementioned suit before the Ld.Trial Court on the ground that correct information regarding date of birth of the plaintiff was furnished by the appellant/plaintiff to the defendant no.2 that his date of birth is 12.8.86 which date was also mentioned on the transfer certificate of the appellant/plaintiff, which transfer certificate was issued by the Primary School where the plaintiff was earlier studying but at the time of submitting the examination form for All India Secondary School, the respondent/defendant no.2 mentioned the date of birth of the plaintiff inadvertently as 12.8.87 instead of 12.8.86 which mistake was clerical on the part of the respondent/defendant no.2 . The appellant/plaintiff appeared in the said examination & passed the exam but his date of birth remained the same as 12.8.87 in the certificates. It is further stated that the appellant/plaintiff thereafter appeared in other Naveen Vyas V Secretary CBSE 3/11 examination i.e..10+2 from the same school but he did not notice that his date of birth is written as 12.8.86 and thereafter the appellant/plaintiff noticed this mistake/error only in the year 2007 when his previous passport got expired and he applied for renewal of the passport who demanded the date of birth certificate which was furnished and thereafter it transpired to the appellant/plaintiff that the date of birth in the school record is mentioned as 12.8.87 instead of 12.8.86 which date is otherwise mentioned in the passport and thereafter he approached the school and the school authorities admitted their mistake and even had written a letter to the CBSE i.e..respondent no.1 stating therein that due to some clerical mistake, date of birth of the appellant/plaintiff has been written as 12.8.87 instead of his correct date of birth as 12.8.86 which may be rectified but same was not rectified by the respondent/defendant no.1 and ultimately the appellant/plaintiff filed the present suit before the Ld.Trial Court and the respondent/defendant made appearance, contested the matter but ultimately the Ld.Trial Court dismissed the suit of the appellant/plaintiff and as such appellant/plaintiff has filed the present appeal on the grounds interalia that the judgment is based on surmises and conjectures, the Ld.Trial Court has failed to appreciate the rule 69.2(iv) of the Bye Laws of CBSE in correct prospective , the mistake if any, is on the part of the defendant no.2 i.e..the School who had given the wrong date of birth in the documents furnished by the School Authorities to CBSE, date of birth otherwise in the Naveen Vyas V Secretary CBSE 4/11 passport of the plaintiff is 12.8.86 which was issued prior in time and there is no malafide intention on the part of the plaintiff right from the beginning. The Ld.Trial Court had not appreciated the spirit of Articles 56 to 58 of Part III of Schedule to the Limitations Act, 1963 and the period of limitation begins from the date on which right to sue accrues in favour of the plaintiff & right to sue in the present matter has arisen from the date of knowledge to the appellant and not from the date when the respondent no.2 committed the mistake nor from the date of passing the examination by the appellant./plaintiff. The Ld.Trial Court has not appreciated the relief with respect to injunction under Article 113 of the Schedule to Limitations Act and further the rule no.69.2 of the ByeLaws of the CBSE is not accessible to general public at large nor it is a statute and , therefore, the plaintiff was not in the knowledge of such rules at any point of time. Once he has come to the knowledge of this mistake, he has immediately approached the court but the Ld.Trial Court has not appreciated the evidence led by the appellant/plaintiff and for the mistake on the part of the school or its staff, plaintiff can not be allowed to suffer and it is further stated that the appellant/plaintiff is still a student and no prejudice is likely to be caused if correct date of birth is recorded and brought on record by the CBSE and since it is a clerical mistake, it is even otherwise covered within the rule of 69.2 and the Ld.Trial court has failed to appreciate all such facts and, therefore, it is prayed that the appeal of the appellant/plaintiff be set aside.
Naveen Vyas V Secretary CBSE 5/11 3 Ld.Counsel for the respondent/defendant has filed reply taking preliminary objections that CBSE is a society which was created pursuant to the Government Notifications and the respondent no.1/defendant no.1 is controlled by the Director/Secretary, Ministry of Human Resources and is an autonomous society discharging the functions of conducting examinations and generally maintaining the standards of school education and advising the Government of India when called upon to do so and the CBSE frames its own rules and is governed by them. It is further stated that under the rule 69.2, the rules were framed with respect to change/correction in date of birth which reads as under: Change/correction in Date of Birth 1 No change in the date of birth once recorded in the board's record shall be made. However, corrections to correct typographical and other errors to make the certificate consistent with the school record can be made provided that corrections in the school records should not have been made after the submissions of application form for admission to examination to the board.
2 Such correction in Date of birth of a candidate in case of genuine clerical errors will be made under orders of the Chairman where it is established to the satisfaction of the chairman that the wrong entry was made erroneously in the list of the candidate/application form of the candidate for the examination.
3 Request for the correction in date of birth shall be forwarded by the Head of the School alongwith attested photostate copies of it:
(a) Application for admission of the candidate to the School Naveen Vyas V Secretary CBSE 6/11
(b) Portion of the page of admission and withdrawal register where entry in date of birth has been made and
(c)The school leaving certificate of the previous school submitted at the time of admission.
The application for the correction in date of birth duly forwarded by the head of the school alongwith documents mentioned in bye laws 69.2(iii) shall be entertained by the board only within two years of the date of deceleration of result of class X examination. No correction whatsoever shall be made on application submitted after the said period of two years. This will be effective from the examination to be held in March, 1995.
4 And it is submitted that the appellant/plaintiff himself or his family members have acquired information regarding date of birth from the school authorities and in the present matter rules have not been challenged by the appellant/plaintiff and till the time rules are in force, no relief in the facts and circumstance of the present matter can be granted to him and accordingly, the Ld.Trial Court after relying upon such rules has rightly dismissed the suit of the appellant/plaintiff being not maintainable. It is further stated that appeal of the appellant/plaintiff is barred by section 41(i)
(h) of Specific Relief Act, it is barred by law of Limitations and section 80 CPC for want of notice. It is further stated that the appellant./plaintiff passed 10th class in 2002 and thereafter 12th class in 2004 and wrong date of birth has been written prior to the year 2002 and the present suit has Naveen Vyas V Secretary CBSE 7/11 been filed in the year 2008 and, therefore, even the correction can not be made after the period of two years of mistake and, therefore, appeal of the appellant/plaintiff is not maintainable and is barred by law. On merits, facts of the appeal are denied.
5 I have heard the arguments and perused the record. I have also gone through the judgment passed by the Ld.Trial Court.
6 The Ld.Counsel for the appellant/plaintiff at the outset has argued that the date of birth was filled up by the school authorities and it was the mistake on the part of the school authorities i.e..defendant no.2 and because of the mistake of the respondent no.2/defendant no.2 , the appellant/plaintiff should not be made to suffer. It is further argued that no prejudice would be caused to the respondent/defendant if the date of birth is allowed to be corrected as the appellant/plaintiff is still a student and his passport carries a correct date of birth and it is not the case of the appellant/plaintiff at all that he is giving one date of birth at one place for taking some benefit and another date of birth at another place as the appellant/plaintiff is still a student and even otherwise the law as framed by the respondent no.1/defendant are not notified to the public at large and as such the appellant/plaintiff are not aware of such rules and the Ld.Trial Court has not appreciated the law of limitation correctly.
Naveen Vyas V Secretary CBSE 8/11 7 Ld.Counsel for the respondent/plaintiff on the other hand has argued that ignorance of law is not an excuse at all. The law with respect to limitation has been rightly appreciated by the Ld.Trial Court and the contention of the Ld.Counsel for the appellant/plaintiff that the respondent/defendant is not likely to suffer prejudice is replied by arguing that since the appellant/plaintiff has not challenged the rules , therefore, irrespective of the fact that no prejudice is likely to be suffered to the respondent/defendant yet until and unless rules are not challenged they do exists and have to be observed by each and everyone concerned. It is further argued by the Ld.Counsel for the respondent/defendant that the appellant/plaintiff has passed his examination of 10th class in the year 2002 and he might have again filled up the form for appearing in board examination of 12 th class in the year 2004, it followed even in further years and now it can not be challenged.
8 I have also perused the judgment of the Ld.Trial Court which has discussed both the issues at length. The court has also gone through the evidence led by the appellant/plaintiff before the Ld.Trial Court and the court is of the opinion that if it had been the mistake on the part of the respondent no.2/defendant i.e..school authorities where the appellant/plaintiff was studying then the appellant/plaintiff should have Naveen Vyas V Secretary CBSE 9/11 summoned the record from the school authorities and should have proved it on court record that the appellant/plaintiff had given the correct date of birth and the mistake is on the part of the school authorities so as to bring with the definition of the rules so framed which speak about the correction of clerical mistakes. Surprisingly, no such witness was summoned by the appellant/plaintiff. The contention of the Ld.Counsel for the appellant/plaintiff that the school authorities themselves have written a letter to the respondent no.1/defendant thereby acknowledging clerical mistake, in the considered opinion of the court is of no help to the appellant/plaintiff as it only talks about the mistake but who committed the mistake was a fact which was required to be proved by the appellant/plaintiff before the court. If he would have been able to prove that mistake to be the clerical or otherwise the mistake is of the respondent no.2/defendant then definitely he had the opportunity to get it rectified within the period prescribed by rule 69.2 by the respondent no.1/defendant no.1. But the record does not speak so. Therefore, this fact does not come to the rescue of the appellant/plaintiff and there is no legal infirmity while appreciating the evidence by the Ld.Trial Court on this aspect rather there is no evidence to that effect on court record. Further, it is not the case of the appellant/plaintiff at all that he had no opportunity to discover the wrong mentioning of his date of birth on both the occasions i.e.. while filling the matriculation form or while filling the 10+2 form. The Ld.Trial Naveen Vyas V Secretary CBSE 10/11 Court has rightly appreciated the Article 58 of Limitation Act as well as Article 113 of Limitation Act and plaintiff was supposed to file suit within three years from the date when such mistake was allegedly committed by the respondent no.2/defendant.
9 I have also perused section 58 of Limitation Act. The limitation starts from the date of committing the mistake and not from the date of knowledge of the plaintiff. Even if it would have been from the date of knowledge, the plaintiff was duty bound to prove that what is the date of knowledge and why he did not apply for correction in the year 2004 when the plaintiff filled the form for 10+2 board exams. No mistake is stated to be on the part of school authorities in the year 2004. No evidence has been led by the plaintiff that he was not aware about the mentioning of his date of birth as 12.8.87 in the year 2004. The admission form must have been filled by him or his parents. Therefore, in absence of any evidence on record, the plea of the plaintiff can not be appreciated. Further , the court is in agreement with the contention of the Ld.Counsel for the respondent/defendant that ignorance of law is no excuse at all and it is admitted fact that rules have not been challenged by the appellant/plaintiff. Therefore, keeping in view all these facts and circumstances and arguments advanced by both the parties, the court is of the opinion that there is no material infirmity or illegality in the order dt.16.1.2010 passed by the Naveen Vyas V Secretary CBSE 11/11 Ld.Trial Court . Accordingly, appeal of the appellant is dismissed.
A copy of the order alongwith trial court record be sent back to the Ld.Trial Court. The appeal file be consigned to Record Room.
ANNOUNCED IN OPEN (S.S.MALHOTRA)
COURT ON 11 August, 2010
th
ADDL.DISTRICT JUDGE
KARARDOOMA COURTS/DELHI
Naveen Vyas V Secretary CBSE