Himachal Pradesh High Court
Dhani Ram vs B.B.M.B. And Another on 28 February, 2016
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
RSA No. 463 of 2006
Reserved on: 05.09.2016
Decided on: 28.02.2017.
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_____________________________________________ Dhani Ram ...Appellant/Plaintiff Versus B.B.M.B. and another ...Respondents/Defendants of Coram:
The Hon'ble Mr. Justice Vivek Singh Thakur, Judge.
rt Whether approved for reporting? 1 Yes.
For the appellant : Mr. Jagan Nath, Advocate.
For the respondents : Mr. N.K. Sood, Senior Advocate, with Mr. Aman Sood, Advocate.
Vivek Singh Thakur, Judge.
Appellant (here-in-after referred to as 'plaintiff') filed a suit for declaration that his date of birth was 01.04.1953 and for direction to respondents (hereinafter referred to as 'defendants') to record the same accordingly in his Service Book.1
Whether reporters of Local Papers may be allowed to see the judgment? ____.::: Downloaded on - 15/04/2017 19:47:58 :::HCHP 2
2. The suit was contested by defendants on the .
ground that at the time of joining in B.B.M.B. on 01.03.1987 as daily wage Beldar, the plaintiff had produced BCB Discharge Certificate in which his date of birth was recorded as 20.07.1945 and accordingly in Service of Book/Record maintained by B.B.M.B. date of birth of plaintiff was recorded as 20.07.1945 and admitting the rt same to be correct, he had affixed his finger and thumb impressions on his Service Book. The suit was also opposed on the ground of delay and laches, stating that under Rule 2.5 of Punjab Civil Services Rules, correction in date of birth was required to be made within two years from the date of entry in Service record.
3. Plea of defendants was rejected by trial Court for defendants had not produced record, pleaded in their written statement, basis for recording date of birth of plaintiff in Service Book. It was held that plaintiff was an illiterate person and his date of birth as 01.04.1953 was corroborated by two certificates Ex.P-2 and Ex. P-3 issued by concerned Gram Panchayat and plaintiff was ::: Downloaded on - 15/04/2017 19:47:58 :::HCHP 3 appointed on regular basis in the month of July, 2001 and .
notice dated 20.01.2003 (Ex.P-1) was issued for correction of date of birth within two years of regularization as required under Punjab Civil Services Rules. It was further held that on failure of defendants to discharge their of duty, plaintiff had no option except to approach Civil Court for redressal of his grievance.
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4. Suit was decreed declaring that correct date of birth of plaintiff was 01.04.1953 instead of 20.01.1945 with further direction to defendants to correct the date of birth of the plaintiff in Service Book accordingly.
5. Being aggrieved by judgment of the trial Court, defendants preferred appeal.
6. Plaintiff placed on record copies of extract Register of Birth of Patwar Circle, Mahadev and translation thereof is Ex. PX and Ex.PY, copy of application dated 26.03.1998 submitted for correction of date of birth Ex. PZ. Defendants also placed on record certified copy of Service Book of plaintiff Ex. DW-2/A, Discharge Certificate DW-2/B, Service particulars DW-2/C, Service Record in ::: Downloaded on - 15/04/2017 19:47:58 :::HCHP 4 Field Office Ex. DW-2/D, declaration and Nomination Form .
Ex. DW-2/E, application for Provident Fund Ex. DW-2/F and Medical Fitness Certificate Ex.DW-2/G in rebuttal by examining Mr. Narinder Kumar Sharma, Superintendent, B.B.M.B. as DW-2.
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7. After considering evidence led by parties before trial Court as well as additional evidence placed on record rt during pendency of the appeal before him, District Judge allowed the appeal and dismissed the suit. Present appeal, filed by plaintiff against judgment passed by District Judge, has been admitted on following substantial questions of law:-
i) Whether the learned Lower Appellate Court has mis-interpreted and mis-construed the provisions of Rule 2.5 read with Annexure "A" of the Punjab Civil Service Rules?
ii) Whether the learned Lower Appellate Court has misinterpreted the provisions of Section 35 of the Indian Evidence Act?
iii) Whether the learned Lower Appellate Court erred in discarding the date of birth certificate Ex. P-2 and copy of Pariwar ::: Downloaded on - 15/04/2017 19:47:58 :::HCHP 5 Register Ex. P-3 which had been duly .
proved on record and documents were squarely covered by the provisions of Section 35 of the Indian Evidence Act?
8. Counsel for plaintiff placed reliance on Ex. PZ, an application dated 26.03.1998 filed for correction of date of of birth by plaintiff in the office of Executive Engineer BRSC and PD Division B.B.M.B. Sunder Nagar and also Ex. P-1 rt notice dated 20.1.2003. Learned counsel for defendants fairly admitted that application Ex. PZ was filed within two years of appointment as daily wage Beldar and notice Ex.
P-1 was served within two years after regularization of services of plaintiff and thus desisted from raising objection that application for correction was not filed within two years of joining service. Therefore there was no delay in filing application by plaintiff for correction of his date of birth substantial question of law No.1 is answered accordingly.
9. Substantial questions No. 2 & 3 are interrelated as admissibility of date of birth certificate Ex. P-2, copy of Pariwar Register Ex. P-3 and copy of extract of Register of ::: Downloaded on - 15/04/2017 19:47:59 :::HCHP 6 Birth Ex. PX and Ex. PY is to be considered under Section .
35 of the Indian Evidence Act.
10. Learned counsel for plaintiff has relied upon judgments in case Dasi Ram and another Versus Emperor reported in A.I.R.(34) 1947 Allahabad 429, Bishwanath of Gosain Versus Dulhin Lalmuni and others reported in AIR 1968 Patna 481, Gopichand Arya V. Bedamo Kuer, AIR rt 1966 Pat 231, Vanajakshamma and others versus P. Gopala Krishna, reported in AIR 1970 Mysore 305, Sushil Kumar Versus Rakesh Kumar reported in 2004(1) S.L.J. 655, Ram Suresh Singh Versus Prabhat Singh Alias Chhotu Singh and another reported in (2009) 6 Supreme Court Cases 681, Smt. Fulmatia Versus Sub-Divisional Officer Banda & ors. reported in AIR 2008 (NOC) 1136 (ALL) 2008 (1) ALJ 680.
11. Allahabad High Court, in Dasi Ram's case supra, has held that extract of register of birth maintained at the Thana under para 323 Police Regulation 1942 Edition, and entries made in this register are admissible in evidence under Section 35 of Evidence Act but extract from ::: Downloaded on - 15/04/2017 19:47:59 :::HCHP 7 Chaukidars's book and the entry not made by Chaukidar .
himself will be inadmissible in evidence.
12. In Bishwanath Gosain's case, Patna High Court has held that entries in birth and death register are public document and are admissible under Section 35 of of Evidence Act and that it is not necessary to prove who made the entries and what was the source of his rt information.
13. Patna High Court, in Gopichand Arya's case, has laid down that death register is a public document and presumption of correctness is attached to it and heavy onus lies on the party who wants to dispute the presumption.
14. In Vanajakshamma's case, Mysore High Court has held that copy of extract from the Register of Births, registered in municipality is a public document and as per Section 77 of the Indian Evidence Act, certified copy of public document may be produced in proof of the contents of the public document.
::: Downloaded on - 15/04/2017 19:47:59 :::HCHP 815. Hon'ble Supreme Court of India, in Sushil .
Kumar's case supra, has held that Admission Register or a Transfer Certificate issued by a Primary School does not satisfy the requirements of Section 35 of the Indian Evidence Act. In this judgment the Apex Court also relied of upon judgment in case Chittaranjan Das vs. Durgapore Project Limited & Ors 99,CWN 897,(1996) IIILLJ 188 rt Cal. wherein it was held as under:
"thus, in absence of the primary material on the basis whereof the age was recorded and particularly in view of the conflicting evidence available, it is not possible to accept the contention of Mr. Roy that the date of birth of the petitioner as recorded in the said certificate would prevail over the letter of the Board".
16. Hon'ble Supreme Court considered Ram Suresh Singh's case supra, in 2010(9) 209 alongwith other judgments and held that even if the entry was made in an official record by the official concerned in discharge of his official duty, it may have weighed but still may require corroboration by the person on whose information entry has been made and as to whether entry made has been ::: Downloaded on - 15/04/2017 19:47:59 :::HCHP 9 exhibited and proved and standard of poof required herein .
is the same as in other civil and criminal cases. It has further been held that entries may be admissible under Section 35 of the Evidence Act but Court has right to examine their probative value and authenticity of the of entries would be dependent on whose information said entries stood recorded and what was the source of rt information.
17. In Fulmatia's case supra, it has been held by Allahabad High Court that entry of Death and Birth in Pariwar Register is not conclusive proof but merely a piece of proof as entries of Pariwar Register can be changed.
18. In Khim Ram's case, Uttarakhand High Court has held that even characterizing the Pariwar Register as a public document within the provisions of the Indian Evidence Act, it cannot be held that the fact which has been stated in the Pariwar Register has been proved. The contents of the Pariwar Register cannot be accepted unless it is proved by cogent and reliable evidence of the person who supplied the information.
::: Downloaded on - 15/04/2017 19:47:59 :::HCHP 1019. There is no dispute about settled position of law.
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But ratio of law laid down by Courts is to be applied on the basis of evidence led by parties. In the present case, Ex.P-
2 is certificate issued by Gram Panchayat Kanaid but there is no reference in the said certificate that on what basis this of certificate was issued by Gram Panchayat nor the same was issued on the basis of entries in Register of Birth and rt Death maintained under Birth and Death Registration Act, 1969.
20. Exhibit P-3 relied upon by plaintiff is copy of Family Register (Pariwar Register) maintained by Gram Panchayat Kanaid. It is settled law that copy of Pariwar Register is also not per-se admissible and it was required to be proved in accordance with law by leading evidence to prove this document.
21. Contents of Ex. P-2 and Ex. P-3 have not been proved by leading cogent and reliable evidence by plaintiff but these documents were tendered by plaintiff in evidence. Evidence of plaintiff is lacking with regard to source of entries made in these documents.
::: Downloaded on - 15/04/2017 19:47:59 :::HCHP 1122. Ex. PX (translated copy PY) is extract of .
Register of Birth maintained by police. This extract may be admissible under Section 35 of the Indian Evidence Act but in view of conflicting date of birth of plaintiff in documents produced as Ex.DW-1/A to Ex. DW-1/G produced and of proved by defendants by leading evidence of Narinder Kumar, the plaintiff was required to prove contents of rt documents relied by him by leading cogent and reliable evidence. Therefore contention raised on behalf of plaintiff by his counsel is not sustainable.
23. In absence of admissibility of Ex.P-2 and Ex. P-
3, documents Ex. PX and its translation Ex. PY cannot be considered a sufficient proof to hold that date of birth of plaintiff was 01.04.1953 because in this document name of child is not mentioned and only fact which can be proved from this document is that on 01.04.1953, a son of Nanku had born. It was plaintiff or some one else is not clear.
There is nothing on record to prove that Nanku was having only son and/or it was plaintiff who had born on 01.04.1953 as son of Nanku. Sufficient material has not ::: Downloaded on - 15/04/2017 19:47:59 :::HCHP 12 been placed on record to prove that there was no other .
child/son of Nanku and plaintiff was only son of Nanku and certificate Ex. PX (PY) was related only to plaintiff.
24. On the contrary defendants by examining DW Narinder Kumar, have placed on record documents DW-2/A of to DW-2/G pertaining to service record of plaintiff with BCB since 29.9.1964 to 24.09.1973. In these documents, rt date of birth of the plaintiff was 20.07.1945. At the time of entry in service with BCB on 29.09.1964, date of birth of plaintiff was entered as 20.07.1945. The fact that plaintiff had joined service in BCB on 29.09.1964 is not disputed by plaintiff. Taking his date of birth as 20.07.1945 his age on 29.09.1964 becomes 19 years whereas by taking date of birth of plaintiff as 01.04.1953, his age at the time of entry in service with BCB becomes less than 11 years. It is unbelievable that a boy in less than 11 years of age, was appointed in BCB.
25. On the basis of scrutiny of evidence on record and pronouncement of courts, discussed here-in-above, I am of the considered view that provisions of Section 35 of ::: Downloaded on - 15/04/2017 19:47:59 :::HCHP 13 the Indian Evidence Act have been correctly interpreted .
and certificates Ex. P-2 and Ex. P-3 have rightly been discarded. Substantial questions No. 2 and 3 are answered accordingly.
26. In view of the above discussion, the appeal is of dismissed being devoid of any merit and judgment passed by learned District Judge is affirmed.
rt (Vivek Singh Thakur) Judge February 28, 2017 *brb* ::: Downloaded on - 15/04/2017 19:47:59 :::HCHP