Delhi District Court
Ms. Nandita @ Ms. Naveen vs . The Registrar University Of Delhi & ... on 30 August, 2013
IN THE COURT OF MS. ANJANI MAHAJAN, CIVIL JUDGE17
(CENTRAL), TIS HAZARI COURTS, DELHI
SUIT NO. 120/11
Ms. Nandita @ Ms. Naveen Vs. The Registrar University of Delhi & Anr.
ORDER
1. The preliminary issues of maintainability of the suit & bar of limitation are under consideration.
2. The plaintiff has filed the present suit seeking declaration against the defendant in respect of change of name of plaintiff from Naveen to Nandita and declaration that the changed name is the new name for all purposes and incidence and mandatory injunction directing defendants to issue fresh certificates/degree of Bachelor of Arts/Mark sheet in the changed name. On 10.01.2012, Ld. Predecessor of this court had observed that certain objections of the defendant were preliminary and it appeared that there were no issues on the facts which were required to be tried and that parties were required to be heard on the paint of law only. Accordingly the matter had been fixed for preliminary hearing.
3. Counsel for defendant relied on the judgment rendered by the Hon'ble delhi High Court in W.P. (C) No. 6397/2010 titled 'Pallavi @ Pallavi Chandra Suit No. 120/11 Ms. Nandita @ Ms. Naveen Vs. The Registrar University of Delhi & Anr. 1/7 Vs. CBSE and Ors.' wherein after discussing a number of judgments the Hon'ble Delhi High Court dismissed the writ petition seeking direction to the respondents to change/correct the name of the petitioner in their records and to issue fresh certificates to the petitioner. It was observed by the Hon'ble Delhi High Court that the issuance of revised certificates as claimed would rather create a discrepancy and reflect a status which did not exist at the time of issuance thereof and that the procedure of having a Gazette notification for changed name was to obviate the difficulties and give sanctity to the change in name. Ld. counsel for the plaintiff on the other hand relied on 116 (2005) DLT 604 titled 'Veera Angrish @ Veeranwati Shankar Angrish Vs. Central Board of Secondary Education WP (C) No. 17997/2004 decided on 14.12.2004 wherein in view of judgment rendered by the Division Bench of the Hon'ble Delhi High Court in CWP No. 2103/94 the change of name was allowed and also on CWP No. 29/2001 titled 'Manish Kaintura Vs. Central Board of Secondary Education' wherein also citing the said judgment CWP No. 2103/94, relief of change of name of petitioner in the records, who had changed his name in the year 1997 having passed the secondary and senior secondary examinations of CBSE in 1991 and 1993 respectively was allowed, pertinently however the same was allowed with effect from 10.10.1998. The counsel for plaintiff had stated orally during the Suit No. 120/11 Ms. Nandita @ Ms. Naveen Vs. The Registrar University of Delhi & Anr. 2/7 course of the arguments that he had been unable to obtain the judgment of CWP No. 2103/94 but in any case relied on these aforesaid two judgments in furtherance of his arguments on maintainability of the suit regarding the aspect of limitation, Ld. counsel for the plaintiff argued that the present suit not being one for declaration simplicitor, but being one for declaration with the consequential relief of mandatory injunction it would be Article 113 of the Limitation Act which would be applicable for the purpose of limitation and not Article 58 of the Limitation Act. He relied on AIR 1956 Union of India & Ors. Vs. West Coast Paper Mills Ltd. & Anr. wherein the Hon'ble Supreme Court discussed the distinction regarding the starting point of limitation under the aforesaid two Articles, and noted in para 21 as follows "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 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 Suit No. 120/11 Ms. Nandita @ Ms. Naveen Vs. The Registrar University of Delhi & Anr. 3/7 Article 58 the period of limitation would be reckoned from the date on which the case 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."
4. Reliance was also placed by counsel for plaintiff on AIR 2009 Sikkim 6 Karma Dome Gyatso @ Babila Kazi Vs. Mrs. Kesang Choden Ors. wherein it was held that the purpose of limitation, the relevant Article that applies to the case of declaration with consequential relief would be the residuary Article 113 & not Article 58 which applies to declaratory suits.
5. The present suit is one undoubtedly for the relief of declaration with the consequential relief of mandatory injunction. The argument of the counsel for the plaintiff that the specific provision of the Limitation Act applicable would be Article 113. Article 113 of the Limitation Act provides as under "113. Any suit for which no period of limitation is provided elsewhere in this schedule - 3 years - when the right to sue accrues."
6. As per the judgment of the Hon'ble Supreme Court in AIR 2004 SC 1596, (supra), the period of limitation has to be computed depending upon the last day when the cause of action arose. It has to be seen from the plaint averments as to when the cause of can be said to have lastly arisen. As per Suit No. 120/11 Ms. Nandita @ Ms. Naveen Vs. The Registrar University of Delhi & Anr. 4/7 the cause of action paragraph of the plaint (para - 10), the cause of action first arose when the plaintiff appeared in the B.A. Examination of the defendant held in the year 2000 and further on 27.01.2002 when the advertisement for change of name was issued in Punjab Kesari dated 27.01.2002 and Gazette of India dated 09.03.2002. The cause of action is stated to further have arisen when suit bearing no. 264/2004 was filed by the plaintiff against CBSE and decreed on 06.04.2005 and also when correction was carried out by Kurkshetra University as well. It is stated that the cause of action further arose when the plaintiff approached the defendant as well to change/correct her name and also when plaintiff received a letter dated 03.08.2005 from the defendant informing her that the application could not be entertained. The plaintiff alleges further that it arose when legal notice dated 15.05.2007 was issued by the plaintiff and also on 27.08.2010 when the suit for declaration and mandatory injunction was earlier filed and the application U/s 80(2) CPC was dismissed and thereafter the plaintiff issued legal notice U/s 80 CPC dated 02.02.2011 vide registered AD/UPC calling upon the defendant to change her name in their records within 60 days from the date of the notice to which reply dated 01.03.2011 had been sent and the cause of action was subsisting.
7. The defendant in the preliminary objections in its written statement has Suit No. 120/11 Ms. Nandita @ Ms. Naveen Vs. The Registrar University of Delhi & Anr. 5/7 taken the objection of bar of limitation and it has been alleged that though plaintiff changed her name in the beginning of the year 2002 and approached the defendant for change of her name, the same was refused on 03.08.2005 and therefore the present suit was patently barred by limitation.
8. Heard and perused.
9. In my opinion, even after applying the ratio of the judgments relied on by counsel for plaintiff, looking at the matter from any angle the cause of action for the plaintiff to file the present suit lastly arose on 03.08.2005 when the defendant refused by its written letter to entertain the application for change of name of the plaintiff. The plaintiff was enjoined to file the suit within a period of three years from 03.08.2005 against the defendant and the sending of legal notice dated 25.05.2007 by the plaintiff would not extend the period of limitation by any means. Further, even the earlier suit no. 212/2010 was filed as admitted by the plaintiff, on 27.08.2010 which is beyond the period of limitation of three years from the date of 03.08.2005 and therefore the benefit of exclusion of time for prosecuting the said proceedings even if granted to the plaintiff would not come to the plaintiff's aid.
10. Section 3 of the Limitation Act casts a duty upon the court to consider the bar of limitation and provides that even if limitation is not set up as a defence if the suit is barred by limitation the same must be dismissed. The Suit No. 120/11 Ms. Nandita @ Ms. Naveen Vs. The Registrar University of Delhi & Anr. 6/7 plaintiff's present suit is hopelessly time barred, having been filed on 06.09.2011. The issue of limitation is decided against the plaintiff. Since the issue of limitation has been decided against the plaintiff there is no need to go into the issue of maintainability of the suit raised in view of the judgment of the Hon'ble Delhi High Court in WPC No. 6379/2010 decided on 04.10.2010. The suit of the plaintiff is thus dismissed on the ground of bar of limitation with no order as to costs.
File be consigned to the Record Room.
Announced in the open court ANJANI MAHAJAN
On 04.08.2013 Civil Judge - 17 (Central)
04.08.2013
Suit No. 120/11 Ms. Nandita @ Ms. Naveen Vs. The Registrar University of Delhi & Anr. 7/7