Bangalore District Court
Smt.Salma vs The Commissioner on 15 September, 2021
1 O.S.4373/2020
IN THE COURT OF THE XXV ADDL. CITY CIVIL &
SESSIONS JUDGE
AT BANGALORE CITY - CCH NO.23.
DATED THIS THE 15 th DAY OF SEPTEMBER, 2021.
PRESIDING OFFICER
PRESENT : Sri.Mohan Prabhu,
M.A., L.LM.,
XXV ADDL. CITY CIVIL & SESSIONS JUDGE,
BANGALORE.
O.S.No.4373/2020
PLAINTIFF/S: Smt.Salma,
W/o Hussain Khan
Aged about 29 years.
R/at No. 'A'
Mahaboob Nagar,
Ward No. 22,
Vijayapura town and hobli,
Devanahalli taluk,
Bangalore Rural District-562 135.
(By Sri.PJM, Advocate)
Vs.
DEFENDANT/S: 1. The Commissioner
Bruhat Bengaluru Mahanagara
Palike
BBMP, Bangalore - 560 002.
2 O.S.4373/2020
2. The Registrar of Births and
Deaths,
BBMP Malleshwaram Zone,
Bangalore - 560 003.
(Sri.A, Advocate)
* * * * *
Date of institution of suit : 21.09.2020
Nature of suit : Declaration
Date of commencement
of recording of evidence : 05.08.2021
Date on which the judgment
was pronounced : 15.09.2021
Duration of the suit :Year/s Month/s Day/s
00 11 25
JUDGMENT
1. The plaintiff has filed this suit against the defendants praying to declare that the correct name of the plaintiff as Salma and consequently for a 3 O.S.4373/2020 direction to the defendants to enter the correct name of the plaintiff as Salma instead of Asma which is wrongly mentioned in the Birth Certificate of the plaintiff's daughter.
2. The facts of the case in nutshell:
The plaintiff is the legally wedded wife of Sri.Hussaiin Khan resident of Vijayapura town and hobli, Devanahalli taluk, Bangalore rural district. Out of their wedlock they are blessed with a female child born on 15.11.2014 at Vanivilas Womens and Childrens Hospital, Bangalore and the same was intimated to the defendant No. 2 and accordingly the defendant No. 2 had issued the Birth Certificate on 26.5.2018 with Regd.No.VAN/B/2014/00156/018836.
The child was named as Kubra Khanam and as per the plaintiffs instruction the said name has been 4 O.S.4373/2020 entered in the birth certificate by the defendant No.
2. In the last week of January 2020 the plaintiff has noticed that in the birth certificate of her daughter her name has been wrongly entered as Asma instead of mentioning it correctly as Salma. Thereafter when the plaintiff approached the defendants and orally requested and also requested in writing to rectify the mistake but the defendants have refused to receive the request and failed to rectify the mistake. Hence the plaintiff got issued the legal notice dated 5.2.2020 to the defendants through her advocate. Despite of service of notice to the defendants on 6.2.2020 the defendants have failed to rectify the mistake in the birth certificate of the plaintiff's daughter. Hence on these grounds the plaintiff prays to decree the suit.
5 O.S.4373/2020
3. After service of suit summons, the defendants appeared through their counsel and resisted the claim of the plaintiff by filing their written statement which is briefly stated as follows:
The suit of the plaintiff plaintiff is not maintainable either in law or on facts. Regarding averments of the plaint in para No. 2 to 6 that plaintiff is legally wedded wife of Sri.Hussain Khan and out of their wedlock a female child was born to them on 15.11.2014 at Vanivilas Womens and Children Hospital, Bangalore and the same was intimated to the 2 nd defendant and accordingly defendant No. 2 issued Birth Certificate on 26.5.2018 and in the birth certificate of plaintiff's daughter Kubra Khanam her name is wrongly entered as Asma instead of Salma are not within the knowledge of 6 O.S.4373/2020 these defendants and the plaintiff is put strict proof of the same with proper documentary evidence. Whatever the names given by the plaintiff or her relatives at the time of birth of her daughter in the hospital the same shall be forwarded and the same shall be entered in the records issued. As such there is no negligence on the part of the authority in issuing the birth certificate. As per the provisions of Registration of Birth and Death Act only clerical and formal error made can be corrected by following certain procedures. As such a major correction is not possible. Hence the entire name cannot be changed. The plaintiff has not stated under which provision of law the notice was issued to BBMP. The plaintiff has not made hospital authorities as parties to this suit. Hence suit is bad for non- joinder of necessary parties. The delay in 7 O.S.4373/2020 approaching this court for name change in birth certificate is not been properly explained. As such on this ground also the suit is not maintainable. The plaint averments does not disclose the particulars of place of birth where exactly it situated in order to ascertain jurisdiction. As such suit is not maintainable. Hence on these grounds the defendants prayed for dismissal of suit.
4. Based on the pleadings of the parties the following issues are framed:
(1) Whether the plaintiff proves that her name in the birth certificate of her daughter Kubra Kanam is wrongly mentioned as Asma instead of mentioning it as Salma ?8 O.S.4373/2020
(2) Whether the defendants prove that suit of the plaintiff is not maintainable ?
(3) Whether the plaintiff is entitled for relief as sought for ?
(4) What order or decree ?
5. In order to prove the case of the plaintiff she has been examined as PW1 and documents Ex.P1 to Ex.P12 are marked. PW1 was partly cross examined on the side of defendant. Thereafter inspite of providing sufficient opportunities the defendant failed to further cross examine PW1 and also failed to adduce defendants side evidence.
6. Heard the arguments. Perused the records.
7. My findings to the above issues are as under:
Issue No.1 : In the Affirmative
Issue No.2 : In the Negative
9 O.S.4373/2020
Issue No.3 : In the Affirmative
Issue No.4 : As per the final order
for the following:
REASONS
8. Issue No.1 : It is the specific case of the
plaintiff is that her name is Salma. Her husband
name is Hussain Khan. Her daughter's name is Kubra Khanam. It is the contention of the plaintiff is that in the birth certificate of her daughter Kubra Khanam her name has been wrongly entered as Asma instead of mentioned it correctly as Salma. But in all her records such as school transfer certificate, Aadhar card, voter ID and Ration card her name is correctly mentioned as Salma. Hence it is necessary to make correction in the birth certificate of her daughter. Hence this suit.
10 O.S.4373/2020
9. In order to prove her case the plaintiff herself stepped into witness box and examined as PW1. She has reiterated the plaint averments in her affidavit filed for examination-in-chief. Documents Ex.P1 to Ex.P12 are marked through her.
10. PW1 has deposed that she is legally wedded wife of Sri.Hussaiin Khan resident of Vijayapura town and hobli, Devanahalli taluk, Bangalore Rural District. Out of their wedlock they are blessed with a female child born on 15.11.2014 at Vanivilas Womens and Children Hospital, Bangalore. She has deposed that birth of her child intimated to the defendant No. 2 and accordingly the defendant No. 2 had issued the birth certificate on 26.5.2018. She states that her child has been named as Kubra Khanam and as per her instructions the said name 11 O.S.4373/2020 has been entered in the birth certificate issued by the defendant No. 2. PW1 has deposed that in the last week of January 2020 when she went to joint her child to school at that time she had noticed that in the serial number 5 of the birth certificate of her daughter the name of mother, i.e., her name has been wrongly entered as Asma. She states that her actual name is Salma. After noticing the said mistake in the birth certificate she immediately approached the defendants and orally as well as by writing requested the defendants but the defendants refused to receive her request and failed to rectify the mistake. She has deposed that thereafter she had got issued legal notice to the defendants on 5.2.2020 through her advocate sent through RPAD. The same was received by the defendants on 6.2.2020. But inspite of receipt of notice by the defendants they 12 O.S.4373/2020 have neither replied to the notice nor rectified the mistake in the birth certificate of her daughter. She has deposed that due to National lock down due to Covid-19 pandemic she could not contact her advocate to file suit immediately. She has filed this suit in the month of September 2020 at that time also the Hon'ble Supreme Court extended the period of limitation. Hence the delay is not intentional and for bonafide reasons.
11. In order to substantiate the contention taken by the plaintiff she has produced and got marked the documents Ex.P1 to Ex.P12. Ex.P1 is the notarised attested true copy of birth certificate of plaintiff's daughter Kubra Khanam. Ex.P2 is the notarised attested true copy of Aadhar card of plaintiff's daughter. Ex.P3 is the notarised attested true copy of 13 O.S.4373/2020 Transfer Certificate of plaintiff wherein her name is mentioned as Salma. Ex.P4 is the notarised attested true copy of Aadhar card of plaintiff wherein her name is mentioned as Salma. In Ex.P5 notarised attested true copy of Ration card of family of plaintiff her name is mentioned as Salma. Ex.P6 is the attested true copy of election ID card of plaintiff wherein her name is mentioned as Salma. According to the plaintiff her name in the birth certificate of her daughter Kubra Khanam wrongly entered as Asma instead of mentioning it correctly as Salma.
12. On perusal of the oral evidence of PW1 which is supported by the documents Ex.P3 to Ex.P6 is sufficient to hold that name of the plaintiff is Salma. The plaintiff has produced the document Ex.P1 to 14 O.S.4373/2020 show that her name in the birth certificate of her daughter wrongly entered as Asma.
13. Even though learned counsel for the defendants cross examined PW1 but nothing is elicited from her mouth to discard her examination-in-chief version and documents Ex.P1 to Ex.P12. The defendants have not stepped into witness box to substantiate the contention taken in their written statement and to adduce rebuttal evidence to defend their case. In the absence of rebuttal evidence from defendants, there is no reason to disbelieve or discard the evidence of PW1 and the documents produced by the plaintiff. So the claim of plaintiff has remained unchallenged. The plaintiff has produced the documents Ex.P7 and Ex.P8 copy of legal notices issued to the defendants. Ex.P9 and Ex.P10 are postal receipts for having sent 15 O.S.4373/2020 notice to defendants. Ex.P11 and Ex.P12 are postal acknowledgment for having served notice to defendants. PW1 has proved that her name is Salma. The plaintiff has produced the document Ex.P1 copy of birth certificate of her daughter wherein plaintiff's name is wrongly mentioned as Asma. The plaintiff has proved issue No. 1, hence I answer issue No. 1 in the Affirmative.
14. Issue No. 2: The defendants have taken contention that the suit of the plaintiff is not maintainable. It is also taken contention that the suit of the plaintiff is bad for non-joinder of necessary party as hospital authorities have not made as party in this suit. In order to substantiate the contention taken in the written statement the defendants have not stepped into witness box. 16 O.S.4373/2020 Nothing is elicited in the mouth of PW1 to show how the suit of the plaintiff is not maintainable. It is not the contention of the plaintiff is that in the hospital records her name is wrongly mentioned as Asma instead of Salma. Under such circumstances the hospital authorities are not necessary parties to this suit. Admittedly notice issued by the plaintiff to defendants through her counsel as per Ex.P7 was duly served upon defendants. The plaintiff has produced the documents Ex.P11 and Ex.P12 postal acknowledgment to show the notice was duly served to the defendants. This notice dated 5.2.2020 issued on same date. Under this notice 60 days given to defendants to rectify the birth certificate of plaintiff's daughter. Merely because the provision of law is not mentioned in this notice that cannot be ground to say that this notice was not issued under the 17 O.S.4373/2020 provisions of KMC Act. The very contents of the notice as per Ex.P7 and Ex.P8 are sufficient to hold that it is statutory notice i.e., 60 days notice issued to the defendants prior to filing of this suit. The defendants who have taken contention that suit of the plaintiff is not maintainable in order to substantiate the contention taken in the written statement they have not stepped into witness box and nothing is elicited in the cross-examination of PW1 to show that her suit is not maintainable. The defendants have failed to prove this issue. Hence I answer issue No. 2 in the Negative.
15. Issue No. 3: In view of finding on issue No. 1 and 2 the plaintiff is entitled for the relief of declaration and consequential relief of direction to 1 O.S.4373/2020 the defendants as prayed in the plaint. Hence I answer issue No. 3 in the Affirmative.
16. Issue No.4: In view of my findings to the above issue No. 1 to 3, I proceed to pass the following:
ORDER The suit of the plaintiff is decreed.
Name of plaintiff is hereby declared as Salma instead of Asma in the Birth Certificate of her daughter Kubra Khanam.
Consequently the defendants are directed to correct the name of plaintiff as Salma instead of Asma in the Birth Register and Birth Certificate of plaintiff's daughter Kubra Khanam and issue fresh Birth 2 O.S.4373/2020 Certificate after receiving prescribed fee.
Parties shall bear their own
cost.
Draw decree accordingly.
(Dictated to the Judgment-Writer, transcribed, computerized and printout taken by her, revised and then pronounced by me in the open court on this the 15th day of September 2021) (Mohan Prabhu ) XXV ADDL. CITY CIVIL & SESSIONS JUDGE, BANGALORE.
ANNEXURE Witnesses examined for the plaintiff/s :
PW1 - Salma Witness examined for the defendant/s :
Nil Documents marked for the plaintiff/s : Ex.P1 - Notarised attested true copy of birth certificate 3 O.S.4373/2020 Ex.P2 - Notarised attested true copy of Aadhar card Ex.P3 - Notarised attested true copy of Transfer Certificate Ex.P4 - Notarised attested true copy of Aadhar card Ex.P5 - Notarised attested true copy of Ration card of family of plaintiff Ex.P6 - Attested true copy of election ID card Ex.P7 - Copy of legal notice Ex.P8 - Copy of legal notice Ex.P9,10 - Postal receipts Ex.P11,12 - Postal acknowledgments Documents marked for the defendant/s :
Nil (Mohan Prabhu ) XXV ADDL. CITY CIVIL & SESSIONS JUDGE, BANGALORE.4 O.S.4373/2020 5 O.S.4373/2020
Judgment pronounced in the open court (vide separate detailed Judgment) ORDER The suit of the plaintiff is decreed.
Name of plaintiff is hereby declared as Salma instead of Asma in the Birth Certificate of her daughter Kubra Khanam.
Consequently the defendants are directed to correct the name of plaintiff as Salma instead of Asma in the Birth Register and Birth Certificate of plaintiff's daughter Kubra Khanam and issue fresh Birth Certificate after receiving prescribed fee.
Parties shall bear their own cost.
Draw decree accordingly.6 O.S.4373/2020
XXV ADDL. CITY CIVIL & SESSIONS JUDGE, BANGALORE.7 O.S.4373/2020