Bangalore District Court
Smt. Asma vs The Principal Secretary on 17 December, 2022
KABC010087172022
TITLE SHEET FOR JUDGEMENTS IN SUITS
IN THE COURT OF V ADDL.CITY CIVIL COURT AT
BENGALURU
(CCH.No.13)
Present: Sri. ONKARAPPA.R, B.Sc., LL.B.
V ADDL.CITY CIVIL & SESSIONS JUDGE,
BENGALURU
Dated this the 16th day of December, 2022
O.S.2086/2022
PLAINTIFF:- :Smt. Asma,
W/o Mohammed Ayaz,
Aged about 43 years,
R/at No.84/1, 11th Cross,
Gangondanahalli,
Bengaluru.
(By Sri. AG, Advocate)
-Versus-
DEFENDANTS:- : 1. The Principal Secretary,
Government of Karnataka,
Ministry of Education,
Vidhana Soudha,
Bengaluru-01.
2. The Head Master &
Principal of St. Anthony
Church School,
Gangondanahalli,
Bengaluru.
(D.1- III ADGP
D.2- Ex-parte)
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Date of institution of the Suit : 22/03/2022
Declaration & Mandatory
Nature of the Suit :
injunction.
Date of commencement of recording of .....
:
evidence
Date on which the Judgment was 16/12/2022
:
pronounced
Total Duration Year Months Days
:
00 08 24
[ ONKARAPPA.R ]
V ADDL.CITY CIVIL & SESSIONS JUDGE
BENGALURU
-: J U D G M E N T :-
Suit has filed by the plaintiff against the defendants for
the relief of declaration of minor plaintiff's father name. Further
consequential relief of mandatory injunction sought an direction
to the defendants to change the name of the minor plaintiff's
father in all his educational and other records as Mohammed
Ayaz instead of Aslam Khan.
2. Brief facts are as under:-
That, the plaintiff has born on 30/01/2013, the parents viz.,
Asma and Mohammed Ayaz and this suit has filed by his natural
guardian mother. He is the 4th son of his parents and he is studying
4th standard at defendant No.2 school. The name of the plaintiff was
given and mentioned as Aamir Labeeb Khan in all the records
pertaining his admission register and other records. His parents and
other family members consulted astrologer and numerologist and
soothsayers found that, name of the minor plaintiff's father does not
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O.S. No.2086/2022
suit for his birth date and astrology and due to wrong prediction of
name family of minor plaintiff's father is under trouble and facing lot
of problems, as such plaintiff's parents are intended to renounces
present name of his father Aslam Khan and adopt his new name as
Mohammed Ayaz. Minor plaintiff is now completed his 3 rd standard
and he is studying in 4th standard. It would be better time to make
necessary correction of his school and other records by deleting his
father's old name Aslam Khan and inserting his new name
Mohammed Ayaz in all his educational records maintained by the
defendants as it will be helpful for his higher education and
employment. As such the plaintiff requested the defendants to make
necessary arrangements for amendment of his name by deleting old
name Aslam Khan and insert new name Mohammed Ayaz, but the
defendants refused to comply the same and directed them to obtain
decree from the Court of Law. Thereafter he got issued legal notice
dated 29/12/2021 to the defendants, but the defendants failed to
comply the same. Cause of action for the suit arose on 29/12/2021
when the plaintiff got issued legal notice to the defendants. Even
inspite of such effort the plaintiff not get any relief thereby the plaintiff
is before the court for the remedy as sought in her plaint.
3. Records reveal that, despite service of suit summons on
defendant No.2, he remained absent hence he placed ex-parte as
per the order sheet dated 20/08/2022. The defendant No.1 appeared
through learned III ADGP and filed their written statement, wherein
they contend that, suit of the plaintiff is not maintainable either in
law or on facts of the case. The allegations made against the
defendants authority are all false and denied, the plaintiffs be put to
strict proof of the same. This defendant denies having received any
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O.S. No.2086/2022
notice under Section 80(2) of CPC as such the suit is also not
maintainable for non compliance of Section 80(2) CPC. As per
circular issued by the commissioner of the education department
there is no provision to change the name of the student in school
records. The suit is barred by limitation as the suit is filed by the
plaintiff after lapse of considerable time. The averments made in
plaint para 3 to 7 are all false and denied by the defendants and
plaintiff be put to strict proof of the same. There is no cause of
action for the suit and alleged one is imaginary one. On these
grounds prayed for dismissal of the suit with costs.
4. On the basis of the above narrated pleadings my
predecessor in office has framed the issues as follow:
1. Whether the plaintiff proves
that her husband's name is
Aslam Khan?
2. Whether the suit of the
plaintiff is maintainable
without the husband of the
plaintiff taking necessary
steps for change of his name?
3. Whether the suit of the
plaintiff is maintainable
without impleading the minor
and the father of the minor?
4. Whether the plaintiff is
entitled for declaration of her
husband's name as
Mohammed Ayaz?
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O.S. No.2086/2022
5. Whether the defendants prove
that the suit is not
maintainable for non issue of
notice under Section 80 of
CPC?
6. What order or decree?
5. Since Issue No.2 and 3 are relating to the maintainability
of the suit, the same issues treated as preliminary issues.
Otherwise, the plaintiff over come from the plea of maintainability of
the suit, the relief sought by the plaintiff not deserves to be granted.
Thereby this court heard the argument on Issue No.2 and 3, the
same issues hereby treated as preliminary issues. Since suit heard
on maintainability answered to issue No.1, 4 and 5 hereby
postponed.
6. Heard the argument on both side and perused the
material on record.
7. My findings on the above issues are as under:-
Issue No.1: Does not survive
Issue No.2: In the affirmative
Issue No.3: In the affirmative
Issue No.4: Does not survive
Issue No.5: Does not survive
Issue No.6: As per final order for the
following:
-: R E A S O N S :-
8. Issue Nos.2 and 3:- The Issue No.2 and 3 are
overlapping with the each. Hence Issue No. 2 and 3 that I taken for
my common discussion to avoid repetition of the facts.
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O.S. No.2086/2022
9. It is the particular case of the plaintiff that,the plaintiff was
born on 30/01/2013, the parents viz., Asma and Mohammed Ayaz
and this suit is filed by his natural guardian mother. He is the 4 th son
of his parents and he is studying 4 th standard at defendant No.2
school. The name of the plaintiff was given and mentioned as Aamir
Labeeb Khan in all the records pertaining his admission register and
other records. His parents and other family members consulted
astrologer and numerologist and soothsayers found that, name of
the minor plaintiff's father does not suit for his birth date and
astrology and due to wrong prediction of name family of minor
plaintiff's father is under trouble and facing lot of problems, as such
plaintiff's parents are intended to renounces present name of his
father Aslam Khan and adopt his new name as Mohammed Ayaz.
Minor plaintiff is now completed his 3 rd standard and studying in 4th
standard. It would be better time to make necessary correction of
his school and other records by deleting his father's old name Aslam
Khan and inserting his new name Mohammed Ayaz in all his
educational records maintained by the defendants as it will be
helpful for his higher education and employment. As such the
plaintiff requested the defendants to make necessary arrangements
for amendment of his name by deleting old name Aslam Khan and
insert new name Mohammed Ayaz, but the defendants refused to
comply the same and directed them to obtain decree from the Court
of Law. Thereafter he got issued legal notice dated 29/12/2021 to the
defendants, but the defendants failed to comply the same.
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O.S. No.2086/2022
10. From the above all pleadings and material available on
record, it is not much disputed fact that the plaintiff filed the present
suit for declaration of her husband name as Mohammed Ayaz in the
place of Aslam Khan. It is also not much disputed fact that the
relationship between the plaintiff and her husband. Further not
much disputed husband of the plaintiff is now alive. The present suit
filed by the plaintiff against the defendants for declaration to change
the name of her husband. When go through the para No.3 of the
plaint the plaintiff has specifically pleaded that "the plaintiff is
permanent resident of Bengaluru City along with his parents and he
is 4th son and at present he is studying 4th standard at the school of
defendant No.2 which comes within the jurisdiction of 1 st defendant".
Further, at para No.4 of the plaint the plaintiff pleaded that, "name of
the plaintiff was given and mentioned as Aamir Labeeb Khan in all
the records pertaining to his admission register and other records of
the above parents and other family members consented
numerologist, astrologer and soothsayers found that as name of
minor plaintiff's father does not suit for his birth date and astrology
and due to wrong prediction of the name, family of minor plaintiff's
father is under trouble and facing a lot of problems and due to
prediction predicted by the numerologist, astrologer and soothsayers
plaintiff's parents and family members are intended to renounce the
present name of his father Aslam Khan and to adopt his new name
as Mohammed Ayaz". From this sort of pleading and the material
available on record, one thing is evident that the plaintiff want to
rectify the name of her husband at the records of her minor son.
With this line of the pleading, husband of the plaintiff is the
necessary party to the suit against the defendants to make
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O.S. No.2086/2022
rectification his name at the records of his minor son. Further
pleadings of the plaint have also disclosed the plaintiff wanted to
rectify name of her husband at all school records of her minor son.
As such the present suit required to prosecute in the name of her
minor son. As per order 32 rule 1 CPC minor can sue or sued
through his next guardian. Order 32 Rule 1 CPC have specifically
mandate that every suit by a minor shall be institute in his name by
a person who in such suit shall be called the next friend of the minor.
When condensed the all material particulars available on plaint the
same material particulars hereby evident that the suit of the plaintiff
is for the declaration and to carried out the rectification of her
husband's name at the school records of her minor son. But case
on hand the plaintiff directly filed the suit in her name and not in the
name of her minor son. As per the pleadings husband of the
plaintiff is survive and there is no pleadings at the plaintiff on what
reason husband of the plaintiff have not come before the court for
rectification of his name at the school records of his son. Otherwise,
the plaintiff not explained such an crux the court cannot grant any
decree in closed eye status. Further it also pertinent to note that
even after framing of the issues and the same issues came to the
knowledge of the plaintiff the then also the plaintiff not shown any
her vigilantisms and she kept silent by not to carried out any
amendment or rectification of the mistake upon the plaint. When the
pleadings are in that of line and even if to prosecute the case and
permitted the plaintiff to lead an evidence to prove the case the then
also no chance on record to get the relief as sought under the plaint.
As the plaint on prime facie disclosed the pleading of the plaintiff is
very omnibus and frivolous in nature. The Hon'ble Supreme Court of
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O.S. No.2086/2022
India in catena of decision it has held that the court should not kept
closed their eyes in a case which are in the nature of frivolous and
should not encourage the suit of frivolous in nature. With this
background of observation that I am of the view that suit of the
plaintiff is not maintainable as the same suit failed to established the
real cause of action as well as maintainability and purpose of the
suit. Accordingly, I answer issue No.2 and 3 in the affirmative.
11. Issue Nos.1, 4 and 5:- Since I answered the Issue No.2
and 3 in the affirmative as I finds that suit of the plaintiff is not
maintainable for the above all going reason, answering to issue
No.1, 4 and 5 does not arise for consideration. Since the case
already posted for judgment on preliminary issue and I found the suit
of the plaintiff as not maintainable, the advancement application
dated 14/12/2022 and memo dated 17-12-2022 have also not
disclosed any merits on advancement application as well as on
memo, accordingly the advancement application and memo filed by
the plaintiff are not survive and the same are hereby dismissed.
12. Issue No.6 :- For the foregoing reasons, I proceed to
pass the following;
ORDER
The suit of the plaintiff hereby dismissed with cost as not maintainable.
Draw decree accordingly.
(Dictated to the Stenographer directly on computer, typed by her, corrected and signed by me and pronounced in the open Court this the 16th day of December, 2022) [ ONKARAPPA.R ] V ADDL.CITY CIVIL & SESSIONS JUDGE BENGALURU 10 O.S. No.2086/2022 The learned counsel for the plaintiff present and she filed memo.
Operative portion of the judgment pronounced in open court vide separate judgment:-
ORDER The suit of the plaintiff hereby dismissed with cost as not maintainable.
Draw decree accordingly. Since the case already posted for judgment on preliminary issue and I found the suit of the plaintiff as not maintainable, the advancement application dated 14/12/2022 and memo dated 17-12-2022 have also not disclosed any merits on advancement application as well as on memo, accordingly the advancement application and memo filed by the plaintiff are not survive and the same are hereby dismissed [ ONKARAPPA.R ] V ADDL.CITY CIVIL & SESSIONS JUDGE BENGALURU 11 O.S. No.2086/2022 12 O.S. No.2086/2022