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2010 DIGILAW 231 (KAR)

MARIYAMMA v. THE DEPUTY COMMISSIONER, KOPPAL DISTRICT, KOPPALAND

2010-02-24

A.S.BOPANNA

body2010
JUDGMENT The appellant herein is the plaintiff in O.S. No. 12 of 2003. The suit in question was instituted for the relief of declaration and mandatory injunction. The Trial Court after considering the rival contentions decreed the suit by its judgment and decree dated 28-8-2003. The defendants were before the lower Appellate Court in RA. No. 12 of 2003. The lower Appellate Court by its judgment dated 9-9-2004 has set aside the judgment and decree of the Trial Court and consequently dismissed the suit. The plaintiff therefore claiming to be aggrieved by the divergent view expressed by the Courts below is before this Court in this second appeal. 2. The case of the plaintiff is that, they belong to Hindu Madiga Caste. In this regard, it is contended that her son Gunturi Ravikumar, who was born on 7-7-1990 at Gangavati also belongs to the said caste and the said son studied at Janata Seva English Medium School, Julynagar, Gangavathi from 1st standard to 6th standard. The case of the plaintiff is that while admitting her son to the school, the husband of the plaintiff had got filled up the application form by others and in the said application form caste was wrongly mentioned as Hindu Chaluvadi instead of Hindu Madiga. It is in that context, the plaintiff being armed with the caste certificate issued by the Competent Authority in respect of her son Gunturi Ravikumar and also her husband approached the school authorities seeking for rectification of the school records to indicate the caste at Hindu Madiga instead of Hindu Chaluvadi. The request of the plaintiff was not accepted and as such the plaintiff instituted the suit. 3. The defendants on being served with suit summons appeared through the Additional Government Pleader and filed their written statement. It was contended that the suit was not maintainable and the same was liable to be dismissed. It was further contended that the nature of relief sought for by the plaintiff cannot be granted by the Civil Court and therefore the suit is liable to be dismissed. Even with regard to the claim of the plaintiff that her son belongs to the Hindu Madiga Caste, it was contended that the husband of the plaintiff himself had indicated in the school records as Hindu Chaluvadi and therefore, no grievance can be made out by the plaintiff at this juncture. 4. Even with regard to the claim of the plaintiff that her son belongs to the Hindu Madiga Caste, it was contended that the husband of the plaintiff himself had indicated in the school records as Hindu Chaluvadi and therefore, no grievance can be made out by the plaintiff at this juncture. 4. The Trial Court considering the rival contentions framed four issues for its consideration. In order to discharge the burden cast on the parties, the plaintiff examined herself as P.W. 1 and marked documents at Exs. P. 1 to P. 8. A witness was examined as P.W. 2. On behalf of the defendants, the Head Master of the school was examined as D.W. 1 and the documents at Exs. D. 1 to D. 2 were marked. 5. The Trial Court ultimately accepted the case of the plaintiff and decreed the suit. In the appeal filed by the defendants, the lower Appellate Court while reversing the judgment and decree of the Trial Court has in fact relied on the documents produced by the defendants at Exs. D. 1 and D. 2 and has observed that in the light of the said documents, the Trial Court could not have accepted the evidence tendered by P.W. 1 alone for the purpose of its conclusion. Hence the lower Appellate Court was of the view that the relief prayed for in the suit could not have been granted by the Trial Court. In this regard, lower Appellate Court has noticed that in fact the husband of the plaintiff himself has mentioned the caste as Hindu Chaluvadi instead of Hindu Madiga and at this stage they cannot resile from the same. 6. This Court while admitting the appeal on 22-9-2005 has framed the following substantial question of law for consideration, which reads as hereunder: ''Whether the finding of the First Appellate Court reversing the judgment and decree passed by the Trial Court in dismissing the suit of the plaintiff is perverse and arbitrary for non-consideration of the material on record including the evidence of P.W. 1 and the documents produced by her?" 7. In the light of the substantial question of law framed by this Court, the manner of consideration by this Court would have to be in the nature of considering the evidence tendered by the parties before the Court below and re-appreciated by the lower Appellate Court and in the light to find out as to whether the lower Appellate Court has committed any perversity while noticing the evidence and arriving at its conclusion. 8. In this regard, the facts as narrated above would indicate that the case of the plaintiff was that her son Gunturi Ravikumar in fact belong to the Hindu Madiga Caste but the caste was wrongly indicated as Hindu Chaluvadi while admitting her son to the school and as such mistake had been committed by her husband. No doubt as rightly pointed out by the learned Government Advocate, if a suit is filed for declaration of the caste, the same would be beyond the competence of Civil Court since the appropriate authorities would have to issue the caste certificate and verification of the same would have to be made by the caste verification committee after coming into the existence of rules. In view of the said contention urged by the learned Counsel, what requires to be noticed in the instant case is that the plaintiff was not before the Civil Court seeking the Civil Court to render a finding of fact on its own with regard to the caste of the plaintiff or her son. In fact, the plaintiff had relied on the documents namely, the Ex. P. 2 being the caste certificate of Gunturi Ravikumar namely, the son in respect of whom the rectification in the school records was sought. The document at Ex. P. 3 is the caste certificate in respect of the husband of the plaintiff. It is based on the said documents, the plaintiff sought for accepting the said document and declaring that the correct caste of the son of the plaintiff is Hindu Madiga and not Hindu Chaluvadi. At this stage itself, the contention of the learned Government Advocate that only attested copy of the caste certificate belonging to the son has been marked at Ex. P. 2 is to be noticed. In this regard, the said contention cannot be accepted for more than one reason. At this stage itself, the contention of the learned Government Advocate that only attested copy of the caste certificate belonging to the son has been marked at Ex. P. 2 is to be noticed. In this regard, the said contention cannot be accepted for more than one reason. Firstly, what is to be noticed is that the plaintiff got the said document marked in the evidence. At the time of marking of the document, no objection has been raised on behalf of the defendants for marking of the said document. On this aspect, the law laid down by the Hon'ble Supreme Court is clear that if the marking of the document is not objected to, it would not be open for the party in question the said document subsequently. Secondly, P.W. 1 namely, the plaintiff was cross-examined by the Government Pleader. There is absolutely no suggestion to the plaintiff stating that the document produced is not genuine. One more aspect of the matter is that even though the said contention is taken in respect of the document at Ex. P. 2, the document of Ex. P. 3 belonging to the husband of the plaintiff, namely, the father of Gunturi Ravikumar, the son in question, is a certified copy which has been issued by the authorities and in the said document, the caste is mentioned as Hindu Madiga. Therefore, these documents in any case indicate that the certificates issued by the Competent Authority indicates the caste of the plaintiffs son as Hindu Madiga. If the documents issued by the Competent Authority indicates the particular caste, in such event, the suit was limited insofar the accepting the said documents and declaring that the caste as per said document is a particular caste and thereafter for issuing mandatory injunction to the school authorities to carry out the corrections. On the said aspect, the lower Appellate Court while re-appreciating the documents has come to the conclusion that the Trial Court was not justified in relying on the evidence of P.W. 1 alone, since the materials placed by defendants 1 to 4 would indicate that the evidence of the plaintiff alone could not have been relied. To examine the said finding of the lower Appellate Court, a perusal of the materials relied on by the defendants would indicate that Ex. To examine the said finding of the lower Appellate Court, a perusal of the materials relied on by the defendants would indicate that Ex. D. 1 is the application which was filed by the husband of the plaintiff and the Ex. D. 2 is the extract of the register of admission. In fact, the very case of the plaintiff is that the error appearing in the documents at Exs. D. 1 and D. 2, namely, the application and the register requires to be corrected and therefore, the plaintiff was before the Trial Court. Therefore in that circumstances, Exs. D. 1 and D. 2 in any event cannot defeat the case of the plaintiff since the very relief sought for is correction of wrong entries in the said documents. In fact, the plaintiff herself, to establish this fact has obtained the extract of the admission document and produced it as Ex. P. 1 to point out that there is an error as against the contents of the documents at Exs. P. 2 and P. 3. Therefore, if these aspects are kept in view, the fact that the plaintiffs son belongs to Hindu Madiga caste even as per the certificates issued by the Competent Authority cannot remain in doubt. Therefore, the lower Appellate Court was not justified in that regard. The question therefore, that would arise is as to whether in such circumstances, keeping in view the declaration that the plaintiffs son belongs to the said caste the Trial Court was justified in issuing the mandatory injunction for carrying out appropriate corrections. 9. In this regard, it is needless to mention as already noticed above, the documents which are at Exs. P. 1, D. 1 and D. 2 would indicate that the caste of the son of the plaintiff has been wrongly indicated as Hindu Chaluvadi despite the caste being Hindu Madiga as per the certificate issued by the Competent Authority. The plaintiff in fact had got issued notice as contemplated under Section 80 of the Civil Procedure Code, 1908, seeking the defendants to carry out appropriate corrections in the admission registers. But the same was not acted upon by the defendants and therefore, in such circumstances, it was appropriate to compel the defendants to act by issue of mandatory injunction. The plaintiff in fact had got issued notice as contemplated under Section 80 of the Civil Procedure Code, 1908, seeking the defendants to carry out appropriate corrections in the admission registers. But the same was not acted upon by the defendants and therefore, in such circumstances, it was appropriate to compel the defendants to act by issue of mandatory injunction. Therefore, the Trial Court in fact was justified and the lower Appellate Court was not justified in reversing the judgment and decree of the Trial Court. 10. Therefore, for all the reasons stated above, the question of law raised by this Court would have to be answered in favour of the appellant, which is accordingly done. In that view, the judgment dated 9-9-2004 passed by the lower Appellate Court is set aside and the judgment and decree dated 28-8-2003 passed by the Trial Court in O.S. No. 12 of 2003 is restored. In terms of the above, the appeal stands allowed, however with no order as to costs.