Bangalore District Court
Smt.Lara Roshni Mathan Pereira vs Dr.B.R.Dayanand on 14 December, 2015
IN THE COURT OF THE 42nd ADDL. CITY CIVIL & SESSIONS
JUDGE AT BANGALORE CITY (CCH.NO.43).
PRESENT: Sri. LEKKADAPPA JAMBIGI,
B.Com., LL.B.(Spl),
42nd ADDL. CITY CIVIL AND
SESSIONS JUDGE, BANGALORE.
Dated this the 14th day of December 2015.
O.S.No.1060/2015
Plaintiffs:- 1. Smt.Lara Roshni Mathan Pereira,
W/o.Dr.Savio Pereira,
& Sole Legitimate
D/o.Late Dr.Jolarpettai
Adimoolam Mathan (An Adi
Dravida Scheduled Caste Hindu),
& Agnes Flora,
Aged about 41 years,
R/at 3rd Floor, 573, 5th Avenue,
Teachers Colony, Venkatapura,
Koramangala,
Bengaluru Urban District,
Bengaluru, Karnataka-560 034.
2. Dr.Savio Pereira,
S/o.Thomas Pereira,
Aged about 45 years,
R/at 3rd Floor, 573, 5th Avenue,
Teachers Colony, Venkatapura,
Koramangala,
Bengaluru Urban District,
Bengaluru, Karnataka-560 034.
(In Person)
v.
2 O.S.No.1060/2015
Defendants:- 1. Dr.B.R.Dayanand,
Age: not known,
Father's Name: not known,
Tahsildar,
Bengaluru South Division,
Kandaya Bhavan,
Kempegowda Road,
Bengaluru- 560 009.
2. Tahsildar,
Bengaluru South Division,
Kandaya Bhavan,
Kempegowda Road,
Bengaluru- 560 009.
3. Mr.Suneel Kumar.T.,
Age: not known,
Father's Name: not known,
ADGP, Directorate of
Civil Rights Enforcement,
Technical Building, Palace Road,
Bengaluru, Karnataka -560 001.
4. ADGP, Directorate of
Civil Rights Enforcement,
Technical Building, Palace Road,
Bengaluru, Karnataka -560 001.
(D1 & D2 - In Person
D3 & D4 - Exparte)
Date of institution of the suit : 02.02.2015
Nature of the suit : Declaration & Permanent
Injunction
Date of commencement of : 03.06.2015
Recording of the evidence
3 O.S.No.1060/2015
Date on which the Judgment : 14.12.2015
was pronounced
Total Duration : Years Months Days
00 10 12
(LEKKADAPPA JAMBIGI)
nd
42 ADDL. CITY CIVIL & SESSIONS JUDGE,
BANGALORE.
JUDGMENT
This is a suit instituted by the plaintiffs for declaration that 1st plaintiff may be declared as legitimate daughter of Dr.Jolarpettai Adimoolam Mathan and Smt.Agnes Flora, is a Hindu of sub-caste Adi Dravida Scheduled Caste and also for permanent injunction.
2. The brief facts of the plaintiffs' case are as under:-
The plaintiff No.1 is the daughter of late Dr.Jolarpettai Adimoolam Mathan and plaintiff No.2 is the husband of plaintiff No.1. The plaintiff No.1 contends that she is the sole legitimate daughter of Dr.Jolarpettai Adimoolam Mathan. Her paternal grandfather - Jolarpettai Chinnathambi Adimoolam belonged to Adi Dravida 4 O.S.No.1060/2015 Scheduled Caste Hindu Community and was married to Jeevarathnam. She is the daughter of Dr.Jolarpettai Adimoolam Mathan, who belonged to Adi Dravida Scheduled Caste Hindu Community. In this regard, she has produced the SSLC Records and MMBS Admission Records of Dr.Jolarpettai Adimoolam Mathan. In those records her father has shown his religion as Adi Dravida Hindu. The father of plaintiff No.1 - Dr.Jolarpettai Adimoolam Mathan (an Adi Dravida Scheduled Caste Hindu) married Agnes Flora Mathan (a Roman Catholic Christian) in an inter- caste/inter religious Special Marriage by Dispensation. Dr.Jolarpettai Adimoolam Mathan did not convert to Christianity and remained a Hindu. In this regard, plaintiff No.1 has produced Marriage Records in Sacred Heart Church. The plaintiff No.1 was born on 30.04.1973 in Holston Hospital Yadgir. Dr.Jolarpettai Adimoolam Mathan has conducted a Hindu Naming Ceremony in Kollur Gulbarga during May 1973 along with ear-piercing ceremony and consecrating the Child to Hindu Goddess Mariamma (Kali). The plaintiff No.1 contends that she is the legitimate child born to a Hindu Father and a Christian Mother and since her 5 O.S.No.1060/2015 father was a Hindu, she is by birth an Adi Dravida Scheduled Caste Hindu and has not voluntarily converted to Christianity. Her father is the sole natural guardian and she is the karta and sapinda of her father. Further, plaintiff No.1 submits that Dr.Jolarpettai Adimoolam Mathan and his daughter form a Hindu Undivided Family. The plaintiff No.1 is entitled to the caste and religion of her father. The plaintiff No.1 married plaintiff No.2 (a Roman Catholic Christian) by suppressing her real legal status as an Adi Dravida Scheduled Caste Hindu. The plaintiff No.2 has informed the Apostolic Nuncio and the Archbishop of Bangalore to make the changes in the religion of plaintiff No.1 as an Adi Dravida Scheduled Caste Hindu in all the relevant records in the Church and plaintiff No.1 has not converted legally to Christianity and she is by birth and by law an Adi Dravida Scheduled Caste Hindu. The plaintiff No.1 has filed a suit for declaration in O.S.No.8197/2014 and in that suit order was passed directing her to issue legal notice to the respondents under Section 80 of CPC and thereafter file a fresh plaint. The plaintiffs have issued a legal notice dated 26.11.2014 to the respondents to issue 6 O.S.No.1060/2015 Caste Certificate of plaintiff No.1 by declaring that she is an Adi Dravida Scheduled Caste Hindu. The cause of action for the suit arose in the year 2014 when defendant No.1 refused to issue Adi Dravida Scheduled Caste Hindu Certificate to plaintiff No.1. The defendants are trying to illegally subject the plaintiff No.1 to the controversial Shuddhi Karna and Ghar Wapasi programmes. Hence, the plaintiffs have filed the suit for declaration and injunction.
3. After registering the suit, summons were issued to the defendants. The defendants 1 and 2 have appeared in person, but they have not filed any written statement. The defendants 3 and 4 have remained exparte. To prove the case of the plaintiffs, the plaintiffs have been examined as PW-1 and PW-2 and they examined one witness as PW-3 and got marked Ex.P1 to P34. The defendants have not led any evidence and the defendants have not marked any documents. There is no rebuttal evidence.
4. Heard the arguments.
5. The points arisen for consideration are as under: 7 O.S.No.1060/2015
1. Whether plaintiff No.1 is entitled for declaration that she belongs to Hindu Adi Dravida Scheduled Caste?
2. Whether plaintiff No.1 has complied the issuance of notice under Section 80 of CPC?
3. Whether plaintiff No.1 entitled for the relief of permanent injunction?
4. What order?
6. My findings are as under:-
Point No.1:- In the negative.
Point No.2:- In the negative.
Point No.3:- In the negative.
Point No.4:- As per final order,
for the following:-
REASONS
7. Point No.1 to 3:-
As these points are interlinked, I answer them together. The plaintiff No.1 contends that she belongs to Hindu Adi Dravida Scheduled Caste. Her father belongs to Hindu Adi Dravida Scheduled Caste and her grand father belongs to Hindu Adi Dravida Scheduled Caste. It is contended by plaintiff No.1 that her father married a Christian lady, but her father's community will continue to 8 O.S.No.1060/2015 the children and as such, plaintiff No.1 belongs to Hindu Adi Dravida Scheduled Caste. Further, it is stated that plaintiff No.2 is the husband of plaintiff No.1. The plaintiff No.2 belongs to Christian Community. The plaintiff No.1 has contended in the plaint that in respect of murder of her father and allegations that there was no good relationship between herself and her mother. Further it is stated that mother of plaintiff No.1 belongs to Christian Community, but father of plaintiff No.1 is not converted to Christian Community. It is also stated that plaintiff No.1 is also not converted to Christian Community. Hence, community of the plaintiff No.1 is to be considered as that of community of her father i.e., Hindu Adi Dravida, which comes under Scheduled Caste category. On these allegations plaintiff No.1 intends to take benefit that she belongs to Hindu Adi Dravida Scheduled Caste.
8. The plaintiff No.2 is the husband of plaintiff No.1. No relief is claimed in respect of plaintiff No.2. The plaint does not disclose for what purpose plaintiff No.2 is included as party in this case. PW-1 and PW-2 have been examined and in their evidence, they have reiterated the averments of 9 O.S.No.1060/2015 the plaint. PW-1 is plaintiff No.1 and PW-2 is plaintiff No.2. One witness is examined as PW-3. As per the allegations of the plaintiffs, plaintiff No.1, her father and her grand father are all belonging to Hindu Adi Dravida Scheduled Caste and as such, caste of plaintiff No.1 is to be declared as Hindu Adi Dravida Scheduled Caste. In this regard, plaintiff No.1 has stated several customs. The plaintiffs have examined PW-3, who has stated that the father of plaintiff No.1 and grand father of plaintiff No.1 are belonging to Hindu Adi Dravida Scheduled Caste. The evidence of PW-1 to 3 is not challenged in any way as there is cross-examination to PW.1 to PW.3.
9. The claim of plaintiff No.1 is in respect of declaration of her caste. The claim is against the State. It is contended that defendant No.1 is Dr.B.R.Dayanand, who is the Tahsildar of Bengaluru South Division and defendant No.2 is the Tahsildar and defendants 3 is Mr.Suneel Kumar.T., who is the ADGP, Directorate of Civil Rights Enforcement and defendant No.4 is the ADGP, Directorate of Civil Rights Enforcement. The plaintiffs have not made the State Government as a party. Even the plaintiffs have 10 O.S.No.1060/2015 not issued any notice to the State Government. As per the provisions of Section 80 of CPC, which reads as follows:-
80. Notice - [(1)] [Save as otherwise provided in sub-section (2), no suit shall be instituted] against the Government (including the Government of the State of Jammu and Kashir) or against a public officer in respect of any act purporting to be done by such public officer in his official capacity, until the expiration of two months next after notice in writing has been delivered to, or left at the office of -
(a) in the case of a suit against the Central Government, except where it relates to a railway, a Secretary to that Government;
(b) in the case of a suit against the Central Government, where it relates to a railway, the General Manager of that railway] [(bb) in the case of a suit against the Government of the State of Jammu and Kashmir, the Chief Secretary to that Government or any other officer authorized by that Government in this behalf:]
(c) in the case of a suit against any other State Government, a 11 O.S.No.1060/2015 Secretary to that Government or the Collector of the District; and, in the case of a public officer, delivered to him or left at his office, stating the cause of action, the name, description and place of residence of the plaintiff and the relief which he claims and the plaint shall contain a statement that such notice has been so delivered or left.
The plaintiff has to make the State Government as a party represented by Chief Secretary or the Collector i.e., Deputy Commissioner. But none of these persons have been represented the State Government. Hence, admittedly, the plaintiffs have not made the State of Karnataka as a party and they have not made the Deputy Commissioner or the Chief Secretary as party, who have been represented the State Government. The plaintiffs have produced the order passed in O.S.No.8197/2004, wherein earlier plaintiff No.1 has filed the similar suit and in the said suit plaint was returned to plaintiff No.1 for compliance of Section 80(1) of CPC. As per the contention of the plaintiffs, they have 12 O.S.No.1060/2015 issued notice to the present defendants. But those defendants are not the proper persons to represent the State of Karnataka.
10. As per the provisions of Section 80 of CPC, the plaintiffs have to issue 60 days prior notice to the State Government. In this regard also the plaintiffs have issued notice to the Tahsildar and ADGP, but they are not the proper authorities to represent the State Government. No doubt, Tahsildar is a public servant of State Government. But as per the provisions of Section 80 of CPC, the Collector i.e., Deputy Commissioner should be made as party or the Chief Secretary is to be made as party, to represents the State of Karnataka. In the absence of such representation, the plaintiffs have filed the suit against unnecessary parties. The Tahsildar is a public servant and ADGP is also a public servant. No doubt, they have been made in their individual capacity ad also in the capacity of Tahsildar and ADGP. But when they are the public servants and the plaintiffs have challenged their acts, who have issued the Caste Certificate, then the plaintiffs ought to have made the State Government as a party as per the provisions of Section 80 13 O.S.No.1060/2015 of CPC. In the absence of the same, the suit is not sustainable. On perusal of the records, the plaintiffs have issued notice to the Tahsildar and ADGP as per Ex.P1 and P4. The plaintiffs have produced Postal Receipts. Ex.P2 is in the name of Dayanand, who is defendant No.1 and Ex.P5 is in the name of Suneel Kumar.T., who is defendant No.3. Even these receipts does not disclose regarding issuance of notice to the Tahsildar or the ADGP. They go to show that in the individual capacity of Tahsildar or ADGP they have issued the notice. More over, the plaintiffs have not issued any notice to the State Government represented by the Deputy Commissioner or State Government represented by Chief Secretary. In the absence of the same, the plaintiffs have not issued notice as required under Section 80 of CPC. No doubt, the strict compliance of Section 80 CPC is not necessary, but atleast the plaintiffs could have filed the suit against the State Government. The relief of the plaintiffs is in respect of claiming declaration that caste of plaintiff No.1 is to be declared as Hindu Adi Dravida Scheduled Caste. It is against the State. The plaintiffs contend that the Tahsildar, who is the proper person to issue Caste 14 O.S.No.1060/2015 Certificate, has not given the Caste of plaintiff No.1 as Hindu Adi Dravida Scheduled Caste. Hence, claim of the plaintiff is against public servant, who has done his duty while discharging his official duty. When that be the case, the plaintiffs ought to have made the State Government represented by the Chief Secretary as a party. But no such party is made in this case. Inspite of direction given in O.S.No.8197/2014, the plaintiffs have not complied the issuance of notice as per Section 80 of CPC. Hence, on the basis of the allegations of the plaint and documents produced by the plaintiffs, the plaintiffs have not complied the provisions of Section 80 of CPC and they have not made the proper persons as parties to the case. Hence, on this count also the suit of the plaintiffs is not maintainable.
11. The plaintiff No.1 contends that she belongs to Hindu Adi Dravida Scheduled Caste. To substantiate this aspect, the plaintiffs have produced the correspondences and the enquiry made by the Tahsildar and the ADGP, wherein they have visited the native place of first plaintiff's father i.e., in Kolar District, Bangarpete Taluka, KGF Champion Reef and at that place they came to know that 15 O.S.No.1060/2015 father of plaintiff No.1 and her grand father belongs to Hindu Adi Dravida Scheduled Caste. The plaintiffs have produced Ex.P12, which is the record issued by the Church, wherein father's name of plaintiff No.1 is shown as J.Anthony Mathan. The plaintiff No.1 vehemently argued that her father's name is Jolarpettai Adimoolam Mathan. But in this record, her father's name is shown as J.Anthony Mathan. This document is created one. But in this regard, the plaintiffs have not sought for any declaration. But, anyhow, it is a document issued by the Church. The plaintiff No.1 contends that there is no good relationship between herself and her mother. Her mother has given statement at Ex.P34 and translated version at Ex.P35. It is a document, wherein her mother has given wrong statement. As per this document, it is contended that plaintiff No.1 is converted into Christian Community and married plaintiff No.2. The conversion was conducted in Shrine of our Lady of Health Church, Khairatabad, Hyderabad, wherein her name is Roshni Mathan. As per contention of her mother, plaintiff No.1 is a converted lady. It is contended that this document is created and plaintiff 16 O.S.No.1060/2015 No.1 is able to show that there was no good relationship between herself and her mother. Anyhow, the plaintiffs have not strictly complied with the provisions of Section 80 of CPC and as such, suit is maintainable. Even though first plaintiff's father and grand father belongs to Hindu Adi Dravida Scheduled Caste, there is no clear evidence to show that plaintiff No.1 is not converted into any other caste. Her mother itself has stated several things. But, anyhow, as the suit itself is not maintainable as there is no compliance of Section 80 of CPC, the plaintiffs are not entitled to get any of the reliefs either declaration or injunction. Even though direction was issued to the plaintiffs in O.S.No.8197/2014, the plaintiffs have not issued notice as per Section 80 of CPC. The notice issued by the plaintiffs is not to the proper authorities. The proper authorities are not made as parties to the suit. When the relief sought for by the plaintiff is against the public servant, it is the duty of the plaintiffs to make necessary authorities as parties. Hence, suit is not maintainable. In view of the same, the plaintiffs are not entitled to get any of the reliefs. The plaintiffs have relied upon the decisions reported in number of citations. As 17 O.S.No.1060/2015 there is no strict compliance of provisions of Section 80 of CPC, the plaintiffs are not entitled to get any relief. Accordingly, I answer point No.1 to 3 in the negative.
12. Point No.4:- In view of my above discussion, I proceed to pass the following:
ORDER Suit of the plaintiffs is dismissed. No order as to costs.
Draw decree accordingly.
(Dictated to the Judgment Writer, typed by her, corrected and then pronounced by me, in open Court, this the 14th day of December 2015).
(LEKKADAPPA JAMBIGI) ND 42 ADDL. CITY CIVIL & SESSIONS JUDGE, BANGALORE.
ANNEXURE I. List of witnesses examined on behalf of:
(a) Plaintiff's side:
PW.1 - Smt.Lara Roshni Mathan Pereira 18 O.S.No.1060/2015 PW.2 - Dr.Savio Pereira PW.3 - Sri.S.Danash Koti
(b) Defendants' side: Nil II. List of documents exhibited on behalf of:
I. Plaintiff's side:
Ex.P1 : Legal Notice under Section 80 of CPC Ex.P2 : Postal Receipt Ex.P3 : Postal Acknowledgement Ex.P4 : Legal Notice Ex.P5 : Postal Receipt Ex.P6 : Postal Acknowledgement Ex.P7 : Certificate issued by St.Patrick's High School Ex.P8 : Application under RTI Ex.P9 : Caste Certificate of J.A.Gautham Ex.P10 : Application requesting for Issue of Caste Certificate Ex.P10(a) : Translation of Ex.P10 Ex.P11 : Extract from the Register of Marriages of Dr.J.A.Mathan and Agnes Flora Ex.P12 : Certificate of Baptism Ex.P13 : Statement of Smt.Agnes Flora Mathan dated 30.09.2014 Ex.P14 : Letter dated 6.10.2012 Ex.P15 : Certified Copy of Admission Register of J.A.Mathan issued by Assistant Administrative 19 O.S.No.1060/2015 Officer, Bangalore Medical College Ex.P16 : Marriage Register Extract of J.A.Mathan and Agnes Flora Ex.P17 : Birth Certificate Ex.P18 : Certified Copy of Order passed in O.S.No.8197/2014 Ex.P19 : Certified Copy of Order passed in W.P.No.18169-170/2014 (GM-CC) Ex.P20 : Letter dated 21.11.14 given by District Social Welfare Officer Ex.P21 : Translation copy of Ex.P20 Ex.P22 : Protest Petition filed on the Report of the Revenue Inspector dated 25.07.2014 Ex.P23 : Certified copy of Enquiry Report Ex.P24 : Certified copy of complaint Ex.P25 : Application for issue of Caste Certificate Ex.P26 : Certified copy of the Report of Revenue Inspector Ex.P27 : Certified Copy of Mahazar Ex.P28 : Birth certificate Ex.P29 : Certificate of Baptism Ex.P30 : Marriage Invitation Card Ex.P31 : Certificate of Marriage Ex.P32 : Application filed before the Directorate of Civil Rights Enforcement Ex.P33 : Statement of Smt.Agnes Flora Mathan dated 16.10.2013
Ex.P33(a) : Translated copy of Ex.P33 Ex.P34 : Statement of Smt.Agnes Flora 20 O.S.No.1060/2015 Mathan dated 10.09.2014 Ex.P34(a) : Translated copy of Ex.P34 II. Defendants' side: Nil.
42nd ADDL. CITY CIVIL & SESSIONS JUDGE, BANGALORE.21 O.S.No.1060/2015
(Judgment pronounced in open court and order portion of the same is extracted as under) ORDER Suit of the plaintiffs is dismissed. No order as to costs.
Draw decree accordingly.
(LEKKADAPPA JAMBIGI) 42nd A.C.C. & S.J. Bangalore City.