Himachal Pradesh High Court
Som Dutt vs State Of Himachal Pradesh & Others on 30 December, 2019
Author: Ajay Mohan Goel
Bench: Ajay Mohan Goel
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
RSA No. 548 of 2019
Decided on: 30.12.2019
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Som Dutt ....Appellant
Versus
State of Himachal Pradesh & others ... Respondents.
....................................................................................
Coram
The Hon'ble Mr. Justice Ajay Mohan Goel, Judge.
Whether approved for reporting?1 No ______________
For the appellant
For the Respondents
r :
: to
Mr. Prashant Sharma, Advocate.
Mr. Sumesh Raj, Mr. Dinesh
Thakur, Mr. Sanjeev Sood,
Additional Advocate Generals
with Mr. Sunny Dhatwalia,
Assistant Advocate General.
Ajay Mohan Goel, J (Oral)
By way of this appeal, the appellant has challenged the judgment and decree passed by the Court of learned District Judge, Hamirpur, H.P. in Civil Appeal No.112 of 2017, titled as State of H.P. & others Versus Som Dutt, decided on 07.09.2019, vide which the learned Appellate Court while allowing the appeal of the respondents herein, set aside the judgment and decree passed by the Court of learned Senior Civil Judge, Nadaun, District Hamirpur, H.P., in Civil Suit No.278 1 Whether reporters of the local papers may be allowed to see the judgment?
::: Downloaded on - 01/01/2020 20:24:48 :::HCHP 2of 2011, titled as Som Dutt Versus State of H.P. & others, decided on 01.08.2017, whereby learned Trial Court had .
decreed a suit for declaration filed by present appellant.
2. Brief facts necessary for the adjudication of the present appeal are that the appellant before this Court (hereinafter referred to as 'plaintiff') filed a suit before the learned Trial Court, seeking declaration that his date of birth was 15.05.1977 and not 15.05.1975, with a further direction to the defendants therein for correction of date of birth of the plaintiff in their record. The case of the plaintiff was that he was born on 15.05.1977 and his date of birth was so recorded in the office of Birth and Death Register at Gram Panchayat, Jasai as well as in the Admission Register of the school. When the plaintiff was admitted in the Government Middle School, Pansai for further studies, his date of birth was erroneously mentioned therein as 15.05.1975. This wrong continued in the documents issued by the Authorities concerned in the certificates which were issued in favour of the plaintiff pertaining to his middle class, 10th class, 10+2 class and above. According to the plaintiff, this mistake had occurred on account of the error which was committed by the school Authorities. As soon as he came ::: Downloaded on - 01/01/2020 20:24:48 :::HCHP 3 to know about this fact on 18.03.2011, when he happened to discuss the matter with his brother, he immediately took up the .
matter with the concerned Authorities after collecting necessary documents. However, as nothing was done by the Authorities to correct the date of birth of the plaintiff, hence, the suit.
3. The suit was contested by the defendants inter alia on the ground that the suit was barred by limitation and further that the plaintiff was estopped from filing the suit on account of his own conduct, act and acquiescence. According to the defendants, guardian of the plaintiff had taken his School Leaving Certificate on 06.04.1987. In this, the date of birth of the plaintiff was mentioned as 15.05.1977. However, thereafter the plaintiff submitted a School Leaving Certificate with defendant No.3 alongwith an application dated 28.04.1987, in which his date of birth was mentioned as 15.05.1975.
Thereafter, plaintiff joined Trained Graduate Teacher, Non-
Medical Course on 26.08.2002 again by declaring that his date of birth was 15.05.1975. After he joined the services in the Government of Himachal Pradesh, his date of birth was entered in the Service Book was 15.05.1975 on the basis of education certificates submitted by him and no steps were taken by the ::: Downloaded on - 01/01/2020 20:24:48 :::HCHP 4 plaintiff to seek correction of his date of birth within time. On these pleas the suit was resisted.
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4. On the basis of the pleadings of the parties, learned Trial Court framed the following issues:-
" 1) Whether the date of birth of the plaintiff is 15.05.1997, as alleged? OPP.
2) Whether the date of birth of the plaintiff has wrongly been mentioned in 8th class, 10th class, 10+2 class and other higher education certificates, as alleged? OPP.
3) Whether the plaintiff is entitled for correction of date of birth, as prayed for? OPP.
4) Whether the plaintiff has no cause of action to file the present suit, as alleged? OPD.
5) Whether the suit is not maintainable, as alleged? OPD.
6) Whether the plaintiff is estopped from filing the suit by his own act and conduct, as alleged? OPD.
7) Whether the suit is barred by time, as alleged? OPD.
8) Whether this court has no jurisdiction to try and entertain the present suit, as alleged? OPD.
9) Whether the suit is bad for non-joinder and mis-joinder of necessary parties, as alleged? OPD.
Relief".
5. On the basis of evidence led by the parties in support of their respective contentions, learned Trial Court returned the following findings on the issues so framed:-
"Issue No.1: Yes.
Issue No.2 : Yes.
Issue No.3 : Yes.
Issue No.4 : No.
Issue No.5 : No.
Issue No.6 : No.
Issue No.7 : No.
Issue No.8 : No.
Issue No.9 : Not pressed.
Relief : Suit of the plaintiff is decreed as
per operative part of the
judgment".
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6. The suit was decreed by the learned Trial Court by holding that the stand of the plaintiff was corroborated by the .
certificate of Gram Panchayat as well as his School Leaving Certificate which demonstrated that defendant No.2 had wrongly mentioned the date of birth of the appellant in his School Leaving Certificate. Learned Trial Court further held that plaintiff would suffer on account of his act as he would retire two years before as to his actual date of superannuation. It further held that as plaintiff had filed the suit within three years as from the date when he came to know about the error i.e. 18.03.2011, therefore, the suit was within limitation. On these basis, learned Trial Court decreed the suit filed by the plaintiff by declaring that date of birth of the plaintiff was 15.05.1977 instead of 15.05.1975 and by directing the Authorities to incorporate necessary corrections in the school passing certificates.
7. Feeling aggrieved, defendants challenged the judgment and decree so passed by the learned Trial Court, before the Court of learned District Judge, Hamirpur, H.P.
8. Vide judgment and decree dated 07.09.2019, learned Appellate Court while allowing the appeal filed by the ::: Downloaded on - 01/01/2020 20:24:48 :::HCHP 6 defendants, set aside the judgment and decree passed by the learned Trial Court.
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9. Learned Appellate Court held that the suit filed by plaintiff was not maintainable as no Notice was issued in terms of Section 80 of the Code of Civil Procedure Code before filing the suit as the plaint was conspicuously silent in this regard and omission on the part of the plaintiff to state this fact in the plaint was fatal. It also held that it was difficult to believe that plaintiff was not aware of date of birth of his brother as it was not his case that his brother was residing in some other place and therefore, he was not aware of the said fact. Learned Appellate Court also held that plaintiff himself had held out that his date of birth to be 15.05.1975 and even if the same was a result of mistake, yet plaintiff permitted this mistake to continue for 20 years and now he could not be permitted to do indirectly what he could not do directly i.e. carry out correction in his date of birth in his service record.
10. Learned Appellate Court also held that the findings returned by the learned Trial Court that limitation for filing the suit would be three years as from the date of knowledge were incorrect as in terms of Article 58 of the Limitation Act, suit for ::: Downloaded on - 01/01/2020 20:24:49 :::HCHP 7 declaration ought to be filed within three years as from the time from which the period begun to run i.e. when for the first time .
the right to sue accrued in favour of the party. Learned Appellate Court held that middle standard certificate was issued to the plaintiff on 05.06.1990 and matriculation certificate issued was 15.06.1992. In case he was aggrieved by the date of birth as was mentioned in the certificates, then he ought to have had filed the suit within the period of limitation as from the said date.
It further held that even if, plaintiff was held to be entitled to the benefit of being a minor, yet he attained the age of majority on 15.05.1993 and therefore, the suit ought to have been filed by him either within a period of three years as from the date when he attained the age of majority. Learned Appellate Court also held that if in terms of the judgment passed by the learned Trial Court, plaintiff was seeking correction in the service record and intended to continue to be in service for two more years, then such dispute could only be raised before the learned Administrative Tribunal and the suit was not maintainable before the learned Civil Court. On these grounds, learned Appellate Court while allowing the appeal filed by defendants, ::: Downloaded on - 01/01/2020 20:24:49 :::HCHP 8 set aside the judgment and decree passed by the learned Trial Court and thus, dismissed the suit.
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11. Feeling aggrieved, appellant/plaintiff filed this appeal.
12. I have heard learned counsel for the parties and have also gone through the judgments and decrees passed by the learned Courts below.
13. In my considered view, there is no substantial question of law involved in this appeal.
14. Learned Appellate Court has inter alia held that the plaint filed by the plaintiff was not maintainable as there was no averment contained in the same to the effect that a Notice under Section 80 of the Code of Civil Procedure was issued before filing the suit. During the course of arguments, learned counsel for the appellant could not demonstrate that the findings so returned by the learned Appellate Court were contrary to the record. Learned counsel for the appellant made available for the perusal of the Court a copy of the plaint.
Admittedly, there was no mention in the plaint, that a Notice under Section 80 of the Code of Civil Procedure was issued by the plaintiff to the defendants before filing of the plaint. Besides ::: Downloaded on - 01/01/2020 20:24:49 :::HCHP 9 this, plaintiff had filed a suit for declaration to the effect that his date of birth in his school passing certificates be ordered to be .
corrected from 15.05.1975 to 15.05.1977. The suit admittedly was filed in the month of December, 2011, i.e. after a long lapse of two decades since the entries stood incorporated in the School Leaving Certificates of the plaintiff. It could not be disputed by learned counsel for the appellant that even as from the date when the plaintiff attained the age of majority, the suit was not filed within a period of three years. Incidently, though in the plaint, no prayer has been made for correction of date of birth of the plaintiff in his service record, however, as is borne out from the judgment and decree passed by the learned Trial Court, the intent of the plaintiff was that only because there is an observation made by the learned Trial Court that on account of the entry of wrong date of birth, plaintiff would be loosing two years of his service carrier.
15. In my considered view, a perusal of the plaint demonstrates that it was very cleverly drafted. Plaintiff purposely did not make any prayer for effecting change in the service record because but obvious, after a declaratory decree to this effect stood passed in his favour by the learned Trial ::: Downloaded on - 01/01/2020 20:24:49 :::HCHP 10 Court, he could then approach the Authorities concerned for the correction of the same in his service record and admittedly as .
from the date of joining the service, plaintiff had not approached the employer within the period prescribed in Fundamental Rules & Supplementary Rules (FRSR) for correction of date of birth i.e. Fundamental Rules 56.
16. Besides this, the judgment and decree passed by the learned Appellate Court is a well reasoned one. It has not only dealt with all the aspects of the mater but has returned its findings well supported by the law of evidence. I, again reiterate that as there is no substantial question of Law involved in this appeal and the first appeal stands decided by the learned Appellate Court by correctly appreciating the factual matrix of the matter. Therefore, this appeal being devoid of merit, is ordered to be dismissed. No order as to costs. Pending miscellaneous application(s), if any, stand disposed of. Interim order, if any, stands vacated.
(Ajay Mohan Goel) Judge 30th December, 2019.
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