Bangalore District Court
Mr.Akshay.V vs ) State Of Karnataka on 7 September, 2020
Govt.of Karnataka TITLE SHEET FOR JUDGMENT IN SUITS
Form No.9(Civil)
Title Sheet for
Judgment in suits
(R.P.91)
IN THE COURT OF THE VI ADDL. CITY CIVIL & SESSIONS JUDGE
AT BENGALURU CITY
(CCCH.11)
Dated this the 7th day of September, 2020
PRESENT: Sri.Rama Naik, B.Com., LL.B.,
(Name of the Presiding Judge)
O.S.No :8039/2018
PLAINTIFF MR.AKSHAY.V
S/o.Mr.Vasudev.G
Aged about 18 years,
R/at No.B-002,
Vaishanvi Nakshatra,
No.9/36, Yeshwanthapura,
Bengaluru -560 022.
[By Pleader Sri.Devaraj.H.K]
/Vs/
DEFENDANTS 1) State of Karnataka
Represented by its Chief Secretary,
Vidhana Soudha,
Bengaluru -560 001.
2) The Hon'ble Secretary,
(Primary & Secondary Education)
Karnataka Government Secretariat,
M.S.Buildings, Bengaluru -560 001.
OS.NO:8039/2018
2
3) The Commissioner of Public
Instructions,
Department of Public Instructions,
K.R.Circle, Bengaluru -560 001.
[By pleader Smt.Shantha B.Mullur
I Addl.District.Govt.Pleader]
4) Vice Chancellor,
PES University
(Established under the Karnataka Act
No.16 of 2013),
100 Feet Ring Road, BSK III Stage,
Bengaluru -560 085.
[Exparte]
5) The Principal
PES College, PES University,
100 Feet Ring Road, BSK III Stage,
Bengaluru -560 085.
[Exparte]
6) The Chair Person,
CBSE Board,
Central Board of Secondary Education,
Shiksha Kendra, "2", Community Centre,
Preet Vihar, New Delhi- 110 092.
[By Pleader Sri.K.Prakash Rao]
7) The Deputy Director of Public
Instructions
Kalasipalya, Bengaluru -560 002.
[By pleader Smt.Shantha B.Mullur
I Addl.District.Govt.Pleader]
8) The Head Master/Mistress/Principal
National Public School,
No.9/1, Pipe Line road,
Raghavendra Layout,
Bengaluru -560 022.
[Exparte]
OS.NO:8039/2018
3
9) The Commissioner, BBMP
N.R Square
Corporation Circle, Bengaluru.
10) Assistant Surgeon cum-
Sub-Registrar
Malleswaram Sub Health Office,
BBMP, Bengaluru -560 103.
[By Pleader Sri.K.N.Mohan Rao]
Date of Institution of the suit : 05.11.2018
Nature of the Suit : Declaration
Date of commencement of
recording of evidence : 08.11.2019
Date on which the Judgment was
pronounced : 07.09.2020
Year/s Month/s Day/s
Total Duration : 01 10 02
--
(RAMA NAIK)
VI ADDL.CITY CIVIL & SESSIONS JUDGE
BENGALURU CITY
OS.NO:8039/2018
4
JUDGMENT
This suit is filed by Plaintiff for declaring his name as "Akshay Vasudeva Rao" and for directing Defendants to make necessary correction in school records.
2) Plaintiff's case, in brief, is that, his name has been entered in school records as 'Akshay. V'. He is studying in 1st year B.Tech., at PES University. As per the advise of Astrologer, he intends to change his name from 'Akshay.V' to 'Akshay Vasudeva Rao', being the expansion of the initial 'V'. He made declaration before the Notary Public by way of Affidavit on 02.06.2018 and published in 'Kannada Prabha' newspaper on 21.06.2018. It is stated that, he approached Defendants to change his name on the basis of declaration made in the affidavit and publication made in the newspaper. Defendants denied to change his name. He got issued legal notice on 09.07.2018 under Section 80 of CPC OS.NO:8039/2018 5 calling upon Defendants to change his name. They received the notice, but failed to change the name. Instead, Defendant No.6 replied on 28.08.2018 justifying the records of the school. Hence, prays for decree.
3) Defendants No.1 to 3 and 7 marked their appearance through 1st Additional District Government Pleader. Defendants No.6, 9 and 10 marked appearance through their respective Advocates. Defendants No.4, 5 and 8 are placed ex- parte. Defendants No.9 and 10 did not choose to file their written statement.
4) Defendants No.1 to 3 and 7, in their written statement, have stated that, suit is barred by limitation as the same is filed after a lapse of considerable time. There is no cause of action to file this suit. As per Circular issued by Commissioner of Education Department, there is no OS.NO:8039/2018 6 provision for change of name. For all these reasons, pray for dismissal of suit.
5) Defendant No.6, in its written statement, states that, there is no cause of action against it and suit is not maintainable for non-joinder of necessary parties. Secretary to Government of India is not made as a party. Hence, prays for dismissal of the suit.
6) Heard learned Counsel for Plaintiff and learned 1st ADGP for Defendants No.1 to 3 and 7. Also heard counsel for Defendants No.6 and 9. Perused the record.
7) Following Issues have been framed by this Court :
1) Whether Plaintiff is entitled for declaration to the effect that, his name is 'Akshay Vasudeva Rao'?
2) Whether Defendants 1 to 3 and 7 prove that, in view of the Circular issued by the OS.NO:8039/2018 7 Commissioner of Education Department, there is no provision to change the name of the student in school records?
3) Whether the suit is barred by limitation?
4) Whether Plaintiff has no cause of action to file this suit?
5) Whether 6th Defendant proves that, the suit is barred for non-joinder of necessary parties?
6) Whether Plaintiff is entitled for the relief as prayed for?
7) What Order or Decree?
8) Plaintiff, in this suit, has been examined as P.W.1. His father and mother, namely, Sri.Vasudev Gundu Rao and Smt.Amrutha Vasudev, have been examined as PW.2 and PW.3. Exs.P.1 to P.29 have been marked on behalf of Plaintiff. Defendants No.1 to 3, 6 and 7 have not chosen to adduce any evidence.
OS.NO:8039/2018 8
9) My findings on the above Issues are :
Issue No.1 - In the Affirmative;
Issue No.2 - In the Negative;
Issue No.3 - In the Negative;
Issue No.4 - In the Negative;
Issue No.5 - In the Negative;
Issue No.6 - In the Affirmative;
Issue No.7 - As per final order, for the following :
REASONS
10) Issues No. 1, 2 and 4: All these Issues are connected with each other, hence, for the sake of convenience, they are taken up together for discussion.
11) This suit came to be filed by Plaintiff for declaration of his name as 'Akshay Vasudeva Rao' and for necessary correction in the school records, contending that, his name in school records has been entered as 'Akshay.V'. As per advise of OS.NO:8039/2018 9 Astrologer, he changed his name as 'Akshay Vasudeva Rao'. 'Vasudev' is an expansion of initial 'V'. It is contended that, he made a declaration on 20.06.2018 by way of affidavit before the Notary Public and published the same in newspaper on 21.06.2018. Despite legal notice thus given under Section 80 of CPC, Defendants failed to make necessary changes in the school records.
12) P.W.1 has reiterated the plaint averments in his affidavit filed in lieu of his examination-in-chief. Ex.P.1 is notary attested copy of 'Grade Sheet cum Certificate of Performance' issued by Central Board of Secondary Education, Delhi, wherein, Plaintiff's name is shown as 'Akshay V'. Ex.P.2 is notary attested copy of Birth Certificate of Plaintiff, which discloses his name as 'Akshay.V' and his father's name as 'Vasudev.G'. Ex.P.3 is notary attested copy of Certificate issued by Department of Pre-University Education, wherein, his name is OS.NO:8039/2018 10 shown as 'AKSHAY VASUDEVA RAO' and his father's name is mentioned as 'Vasudev G '. Ex.P.4 is notary attested copy of Passport of Plaintiff, wherein, Plaintiff's name is shown as ' VASUDEVA RAO AKSHAY' and his father's name is mentioned as 'VASUDEV GUNDU RAO'. Exs.P.5 and P.6 are notary attested copies of 'Aadhaar Card' and 'Pan Card' of Plaintiff, wherein, his name is mentioned as 'AKSHAY VASUDEVA RAO'. Ex.P.7, is Affidavit sworn in by Plaintiff before the Notary Public on 20.06.2018, whereunder, he made a declaration that his name be called as 'AKSHAY VASUDEVA RAO' from the date of declaration. Ex.P.8 is 'Kannada Prabha' newspaper dated 21.06.2018, wherein, declaration made in the affidavit regarding assumed name has been notified to the general public. Ex.P.9, is office copy of legal notice dated 09.07.2018 got issued by Plaintiff to Defendants calling upon them to make necessary changes in the school records in respect of his OS.NO:8039/2018 11 assuming name. Exs.P.10 to P.19 are postal receipts for having sent Ex.P.9 to Defendants. Exs.P.20 to P.28 are postal acknowledgments for having received Ex.P.9 by Defendants No.1 to 5 and 7 to 10. Ex.P.29 is reply dated 28.08.2018 issued by 6th Defendant, wherein, Defendant No.6 intimated Plaintiff that as per informations furnished to it by the concerned school, his name has been entered in school records.
13) PW.1 has been cross examined by Defendants No.1 to 3, 6, 7 and 9. In his cross examination by Defendant No.6, PW.1 has deposed that, he has produced Aadhaar Card, Passport, Pan Card and PUC Marks Card in order to show his name as 'Akshay Vasudeva Rao'. He further deposed that, he has got said documents by producing affidavit.
OS.NO:8039/2018 12
14) Plaintiff's father, Sri. Vasudev Gundu Rao and his mother, Smt.Amrutha Vasudev have deposed as PW.2 and PW.3 in support of Plaintiff's case. They have been cross examined by Defendant No.6. They depose that, Astrologer had given oral instructions to change the name of their son. They further depose that, their son made a declaration by way of affidavit with respect to change of his name and notified the same in newspaper. Nothing has been elicited from the mouth of PW.1 to PW.3 in order to disprove the case of Plaintiff.
15) Documentary evidence coupled with oral testimony of PW.1 to PW.3 makes it clear that, in Ex.P.1-Grade Sheet issued by Central Board of Secondary Education, Delhi and Ex.P.2, Birth Certificate, Plaintiff's name is mentioned as 'Akshay V'. His father's name is shown as 'Vasudev G'. All other documents like Exs.P.3 to OS.NO:8039/2018 13 P.6 disclose the name of Plaintiff as 'Akshay Vasudeva Rao'. Exs.P.3 to P.6 clearly go to show that, initial 'V' in the name of Plaintiff stands for 'Vasudev' being the name of Plaintiff's father and 'Rao' is his surname. From the documentary evidence, it has been clear that, 'Vasudev' is nothing but the expansion of initial 'V' and 'Rao' is the surname of Plaintiff. Anyhow, Plaintiff made a declaration before the Notary Public as per Ex.P.7 regarding such changes and notified the same to the public as per Ex.P.8.
16) In Smt.Dorasanamma Vs. State of Karnataka (RFA No.284/2014 (DEC) decided on 02.09.2016), Hon'ble High Court was pleased to hold that, "There need not be a mistake in furnishing the name while admitting into the Educational Institution and the name can be changed according to the wish of the candidate". Para-9 of the Judgment (supra) reads thus :
OS.NO:8039/2018 14 "9. The appellant filed a suit seeking for declaration, declaring her changed name as Divya.G. instead of Dorasanamma. The change of Name Act provides that name of a student up to secondary level also can be changed by getting judgment and decree from the jurisdictional court. Without the decree passed by the Competent court, the name cannot be changed in the school records. When the student attains majority and if he/she has an intention to change his/her name, the intention must be disclosed through an affidavit sworn to before the Court Officer/Notary or Magistrate in a Stamp Paper of Rs.20/- and the same has to be published in two leading news papers to make known to the general public regarding change of name. So far as student is concerned, change of name in the school records is done only on furnishing the judgment and decree by the competent Civil Court. In view of that, the appellant filed a suit seeking for declaration to declare her name as Divya.G as provided under the Change of Name Act.
The reasons assigned by the trial court to dismiss the suit is contrary to the change of Name Act. There need not be a mistake in furnishing the name while admitting into the Educational Institution. The name can be changed according to the wish of the candidate. The change of Name Act provides for the same. In the instant case, none of the respondents objected for change of name. The necessary documents with regard to swearing of the affidavit in a stamp paper before the competent authority and also two paper publications made available to the court. Hence, the question of dismissing the suit for change of name is contrary to law".
(underlined by me) OS.NO:8039/2018 15
17) From the ratio laid down in the judgment (supra), it has been clear that, name can be changed, however, intention to change the name is required to be disclosed through affidavit sworn in before the Notary Public and same has to be published in daily leading newspaper to make known to the general public. In that situation, declaration as to assuming name can be sought for. In the instant case, Exs.P.7 and P.8 make it clear that, Plaintiff made a declaration in respect of his assuming name and notified the same to the general public.
18) Defendants No.1 to 3 and 7 contend that, as per Circular issued by the Commissioner of Education Department, change of name of student in school records is not permissible. Contention as taken by Defendants No.1 to 3 and 7 reads thus :
"5. ..... As per the circular issued by the Commissioner of education department, there is no provision to change the name of the father in school records. ... "
OS.NO:8039/2018 16
19) No Circular as such has been produced in this regard. From the contention of Defendants No.1 to 3 and 7, it can be said that, Defendants have no authority to make changes in school records without the order of Civil Court. In Gunda Naika P.S. Vs. The State of Karnataka and others (RFA No.322/2013 (DEC), decided on 10.12.2013), the Hon'ble High Court was pleased to hold that, "The only pre-requirement for effecting the change of name in the educational records by the Deputy Director of Public Instructions is the obtaining of the decree from the competent Civil Court". Para-12 of the Judgment reads as follows :
"12. The trial court's reasoning that the appellant has not followed the procedure prescribed by the State and the Central Government is also not tenable. The respondents are in no position to point out any statutory provision or rule or Government order or circular prescribing the procedure for the change of name. On the other hand, the perusal of the circular dated 02/05/2000, shows that, the only pre-requirement for effecting the change of name in the educational records by the Deputy Director of Public OS.NO:8039/2018 17 Instructions is the obtaining of the decree by the applicant at the hands of the Competent Civil Court".
(underlined by me)
20) Hence, it is clear that, only requirement of Defendants is that, there must be an order from the Court to make necessary changes in school records in view of Circular issued by the Education Department.
21) Plaintiff has pleaded that, as per the advise of his Astrologer, he intends to change his name as 'Akshay Vasudeva Rao' and therefore, he made a declaration by way of affidavit before the Notary Public on 20.06.2018. It is further pleaded that, on the basis of declaration, legal notice was got issued to Defendants on 09.07.2018 as required under Section 80 of CPC for necessary correction in the school records. It is also pleaded that, in spite of notice thus served to Defendants, they failed to make necessary changes in school records. Ex.P.7 OS.NO:8039/2018 18 goes to show that it was sworn in before Notary Public on 20.06.2018. Ex.P.8 makes it clear that, declaration made in Ex.P.7 was published on 21.06.2018. Ex.P.9, legal notice, dated 09.07.2018 further goes to show that, changes in the name of Plaintiff by way of declaration in Ex.P.7 were intimated to Defendants to make necessary correction in school records. Addressing of Ex.P.9 is proved by Exs.P.10 to P.19 and its acknowledgment by Defendants is proved by Exs.P.20 to P.29. Ex.P.29 further makes it clear that, 6th Defendant has justified the entry already made in school records. However, Defendants No.1 to 9 neither responded nor addressed the claim of Plaintiff. These facts have been deposed by PW.1 in his evidence. Nothing has been substantiated by Defendants in the cross examination of PW.1 in order to prove that there is no cause of action to file this suit. These bundle of facts that declaration by way of affidavit and consequent failure of Defendants to address OS.NO:8039/2018 19 the grievance of Plaintiff made in the notice themselves make it clear that there has been cause of action for Plaintiff to file this suit. In that view, it has to be said that, Defendants contention as to cause of action is mere evasive without any substantiation. Accordingly, I answer Issue No. 1 in the affirmative and Issues No.2 and 4 in the negative.
22) Issue No.3 - Defendants No.1 to 3 and 7 contend that, suit filed by Plaintiff is barred by limitation, as the same has been filed after a lapse of considerable time. PW.1 has been cross examined to the said effect. In his cross examination, he deposes that, as per the advise of his Astrologer and as most of the documents already contains his father's name as 'Vasudev Rao', he claimed for such changes in school records. It is pleaded that, as per the advise of his Astrologer, he wanted to change his name and OS.NO:8039/2018 20 accordingly, he made a declaration in the affidavit before the Notary Public on 20.06.2018 and notified the same in the newspaper on 21.06.2018 and thereafter, legal notice was got issued to Defendants on 09.07.2018. In Union of India and others Vs. West Coast Paper Mills Ltd., and another [AIR 2004 SC 1596], Hon'ble Supreme Court was pleased to hold that :
"21. A distinction furthermore, which is required to be noticed is that whereas in terms of Article 58 the period of three years is to be counted from the date when 'the right to sue first accrues'; in terms of Article 113 thereof, the period of limitation would be counted from the date 'when the right to sue accrues'. The distinction between Article 58 and Article 113 is, thus, apparent inasmuch as the right to sue may accrue to a suitor in a given case at different points of time and, thus whereas in terms of Article 58 the period of limitation would be reckoned from the date on which the cause of action arose first, whereas, in the latter the period of limitation would be differently computed depending upon the last day when the cause of action therefor arose."
23) In this background, relief sought for by Plaintiff is to be looked into. Plaintiff has sought for declaration of his name and consequent correction in the school records. Article 58 deals with OS.NO:8039/2018 21 declaration simpliciter without any consequential relief, which applies to declaratory suits only. Hon'ble Sikkim High Court was pleased to differentiate the intendment of both Articles 58 and 113 in Karma Doma Gyatso alias Babila Kazi Vs. Mrs.Kesang Choden & Ors. [AIR 2009 Sikkim 6], wherein, it has been held that :
"..... Thus, it is manifest that for the purpose of limitation the relevant Article that applies to the case of declaration with a consequential relief would be the residuary Article 113 and not Article 58 which applies to declaratory suits.
18. It is thus obvious that Article 58 which applies to cases of declaration simpliciter would not be applicable in the present case. Instead, it is residuary Article 113 which is attracted in the case of the Plaintiff. However, the period of limitation prescribed under both the Articles being 3 years when the right to sue first accrues (under Article
58) and when the right to sue accrues (under Article 113), the question as to which of the two Articles applies would not be of much significance particularly in the light of the finding that the right to sue accrued only in the year 2005 and the suit has been filed in the year 2006, i.e. within one year of the right to sue accruing. ......."
24) Hence, I am of the view that, Plaintiff's suit being for declaration with a direction to Defendants to make necessary correction in school records, it OS.NO:8039/2018 22 squarely comes under Article 113, which states that, cause of action arises when right to sue accrues. Right to sue accrues to Plaintiff on 20.06.2018, the date of declaration made in the affidavit; on 21.06.2018, the date of notification in the newspaper; on 09.07.2018, the date of legal notice; and consequent failure of Defendants. Under such circumstances, it can be fairly said that, Plaintiff's relief of declaration is within the time as prescribed in Article 113; accordingly, I answer Issue No.3 in the negative.
25) Issue No.5 : Defendant No.6 contends that, Secretary to Government of India is not made as a party to this suit, hence, suit is not maintainable for non-joinder of necessary party.
It is to be noted that, 6th Defendant is Central Board of Education, which comes under Ministry of Human Resource Development, a parent organisation, which is being presided over by its OS.NO:8039/2018 23 Chairperson. In this suit, Chairperson of 6 th Defendant is made as a party. In that view of the matter, procedural lapses in not arraying the Union of India as party to this suit does not take away the right of Plaintiff to get decree, which he is entitled to. Accordingly, I answer the above Issue in the negative.
26) Issue No.6: As discussed above, Plaintiff has proved his case by placing documentary, as well as oral evidence. If Plaintiff's name is not corrected, in view of his declaration, same would create anomaly in the school records of Plaintiff and same would affect the future prospects of Plaintiff, hence, suitable correction is required in the school records. In that view of the matter, this Court holds that Plaintiff is entitled to the relief as prayed for, accordingly, this Issue No.6 is answered in the affirmative.
OS.NO:8039/2018 24
27) Issue No.7: In view of the foregoing discussion and findings on Issue Nos.1 to 6, I pass the following:
ORDER (1) Suit of the Plaintiff is hereby decreed.
(2) It is hereby declared that Plaintiff's name as 'Akshay Vasudeva Rao'.
(3) Defendants are hereby directed to effect necessary changes in all the educational records of Plaintiff by rectifying the name of Plaintiff as 'Akshay Vasudeva Rao'.
(4) Draw decree accordingly.
(Dictated to the Judgment Writer directly on computer, typed matter corrected and then pronounced by me in open court, dated this the 7th day of September, 2020.) (RAMA NAIK) VI Addl.City Civil & Sessions Judge, Bengaluru City.
OS.NO:8039/2018 25 ANNEXURE I. LIST OF WITNESSES EXAMINED ON BEHALF OF :
(a) Plaintiff's side :
P.W.1 - Mr.Akshay.V dtd.08.11.2019 P.W.2 - Mr.Vasudev Gundu Rao, dtd.17.02.2020 P.W.3 - Smt.Amrutha Vasudev, dtd.17.02.2020
(b) Defendants side : N I L II. LIST OF DOCUMENTS EXHIBITED ON BEHALF OF :
(a) Plaintiff's side :
Ex.P.1 Notary Attested copy of Certificate issued by Central board of Secondary Education, Delhi in the name of Plaintiff -Akshay.V Ex.P.2 Notary Attested copy of Birth Certificate of Plaintiff - Akshay.V Ex.P.3 Notary Attested copy of Certificate issued by Department of Pre-University Education in the name of Plaintiff-Akshay Vasudeva Rao Ex.P.4 Notary attested copy of Passport of Plaintiff Ex.P.5 Notary attested copy of Aadhaar Card of Plaintiff Ex.P.6 Notary attested copy of PAN Card of Plaintiff Ex.P.7 Notary attested copy of Affidavit of Plaintiff dtd.20.06.2018 Ex.P.8 Paper publication in 'Kannada Prabha'
21.06.2018 regarding change of name of Plaintiff OS.NO:8039/2018 26 Ex.P.9 Office copy of legal notice dtd.09.07.2018 Ex.P.10 Postal receipts for having sent Ex.P.9 to To Defendants Ex.P.19 Ex.P.20 Postal Acknowledgments To Ex.P.28 Ex.P.29 Reply dtd.28.08.2018 issued on behalf of Defendant No.6
(b) Defendants side : N I L
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VI Addl.City Civil & Sessions Judge Bengaluru City.
OS.NO:8039/2018 27