Karnataka High Court
Kumari Varalakshmi vs The Deputy Director on 27 July, 2012
Author: A.S.Bopanna
Bench: A.S. Bopanna
1
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 27TH DAY OF JULY 2012
BEFORE
THE HON'BLE MR. JUSTICE A.S. BOPANNA
REGULAR FIRST APPEAL NO. 521/2012
BETWEEN:
1. KUMARI VARALAKSHMI,
AGED ABOUT 17 YEARS,
MINOR,
REPRESENTED BY
HER GUARDIAN-FATHER
SRI R.V. MUKUND
2. SRI R.V. MUKUND,
S/O. ROLLE VENKATACHALAIAH,
AGED ABOUT 48 YEARS,
BOTH ARE RESIDING AT
NO. 38, 3RD FLOOR,
M.S. CRUSTAL,
MALLESHAPALYA MAIN ROAD,
MALLESHPALYA,
BANGALORE - 560 075
... APPELLANTS
(BY SRI M.M. ASHOKA, ADV.)
2
AND:
1. THE DEPUTY DIRECTOR,
DEPARTMENT OF PUBLIC
INSTRUCTIONS,
BANGALORE SOUTH DISTRICT,
BANGALORE URBAN
ZILLA PANCHAYATH,
KALASIPALYA,
BANGALORE - 560 002.
2. THE REGISTRAR OF
BIRTH AND DEATH,
BRUHAT BANGALORE
MAHANAGARA PALIKE,
ASHOKANAGAR CORPORATION
CENTRE, BANGALORE - 560 025.
3. THE PRINCIPAL,
SREE CAUVERY SCHOOL,
DOUBLE ROAD, INDIRANAGAR,
BANGALORE - 560 038.
4. THE SECRETARY,
EDUCATION DEPARTMENT,
GOVERNMENT OF KARNATAKA,
MULTISTORIED BUILDING,
BANGALORE - 560 001.
5. THE DIRECTOR,
KARNATAKA SECONDARY EDUCATION
EXAMINATION BOARD,
(SSLC BOARD), 1ST FLOOR,
MALLESHWARAM,
BANGALORE - 560 003.
... RESPONDENTS
3
THIS RFA IS FILED UNDER SECTION 96 OF CPC,
AGAINST THE JUDGMENT AND DECREE DATED 02.01.2012
PASSED IN O.S.NO.2669/2011 ON THE FILE OF THE XVI-ADDL.
CITY CIVIL & SESSIONS JUDGE, BANGALORE CITY (CCH.
NO.12), DISMISSING THE SUIT FOR DECLARATION AND
INJUNCTION.
THIS RFA COMING ON FOR ADMISSION THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
JUDGMENT
The appellants herein are the plaintiffs in O.S. No. 2669/2011. The suit in question was filed seeking for a declaration and injunction.
2. The brief facts are that, the 1st plaintiff claims that her correct name is R.M. Varalakshmi and the same has been wrongly mentioned as T.P. Varalakshmi in the Birth certificate, which has thereafter been carried out in the educational certificates as well. The 2nd plaintiff is the father of the 1st plaintiff and therefore the 2nd plaintiff also testifies to this fact. It is in that context, the plaintiffs had filed the suit seeking for declaration and for mandatory injunction to carryout the correction with regard to the name of the plaintiff. The Court below after considering the matter has dismissed the suit. The plaintiffs are therefore before this Court in this appeal. 4
3. At the outset, a perusal of the judgment passed by the Court below would indicate that, the suit has been mainly dismissed on the ground that the plaintiffs had not issued the notice as contemplated under Section 80 of the Civil Procedure Code before instituting the suit. Though, the other aspects of the matter has also been noticed by the Court below to indicate that the wife of the plaintiff could not have given a wrong name, the said aspect of the matter has been eclipsed by the fact that the suit was dismissed for non compliance of Section 80 of Civil Procedure Code, which is in fact is a technical error committed by the plaintiffs, while filing the suit. The finding in that regard in any event is not disputed by the plaintiffs to be erroneous.
4. However, it is contended that the appeal in that regard would not be pressed at this stage, provided an opportunity is granted to the appellants to issue appropriate notice and re-agitate the matter before the Court below. Hence, keeping these aspects in view, the appeal is disposed of reserving liberty to the appellants to issue notice as contemplated under Section 80 of Civil Procedure Code and re- 5 institute a fresh suit seeking for the relief. If such fresh suit is instituted after compliance of the requirements, the finding herein will not act as resjudicata and the Court below would reconsider the fresh suit in accordance with law, since the suit was mainly dismissed for want of statutory notice, which is a curable defect.
5. Accordingly, the appeal is disposed of.
Sd/-
JUDGE ST*