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2018 DIGILAW 1850 (HP)

Balbir Singh v. State of Himachal Pradesh

2018-10-24

CHANDER BHUSAN BAROWALIA

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JUDGMENT : Chander Bhusan Barowalia, J. By way of the present appeal, the appellant has challenged the judgment and decree passed by the Court of learned District Judge, Kangra at Dharamshala, in Civil Appeal No.67- I/XIII/2011, dated 5.9.2012, vide which, the learned lower Appellate Court, has affirmed the judgment and decree passed by the learned Civil Judge (Junior Division) Indora, District Kangra, in Civil Suit No.161/2007, dated 22.11.2011. 2. Material facts necessary for adjudication of this Regular Second Appeal are that appellant/plaintiff (hereinafter referred to as ‘plaintiff’) maintained a suit for declaration against the respondents/defendants (hereinafter referred to as ‘defendants’) alleging that plaintiff is an employee of Engineers India Limited, New Delhi i.e. defendant No.8, which is under the Ministry of Petroleum & Natural Gas and serving as Senior Manager. The plaintiff averred that his date of birth, as per service records has been recorded as 10.4.1962. Reference has also been made in the plaint regarding visit to Haridwar on the occasion of death of plaintiff’s grandfather and recording of his age by the concerned Purohit. Reference is also made in the plaint qua his date of birth as 23.4.1964 in the identity card issued by the Panchayat Officer as well as Ration Card issued to plaintiff’s by Food & Supply Officer. It is further pleaded that his date of birth recorded in Government Primary School, Bari Kandrori, District Kangra, was 2.1.1963. The plaintiff moved an application, under Section 13 (3) of Registration of Births and Deaths Act, before Sub Divisional Magistrate, Nurpur and the said application was forwarded to defendant No.3, who directed Executive Magistrate i.e. defendants No.5 & 6 to issue birth certificate on the basis of matriculation certificate to the plaintiff. Plaintiff also issued a notice to the said authorities, under Section 80 of the Code of Civil Procedure and ultimately invoked the jurisdiction of Civil Court and by virtue of present suit seeks declaration to the effect that his actual date of birth is 23.4.1964 and date of birth has been wrongly recorded in his service record as 10.4.1962, which needs to be corrected. In addition, mandatory injunction is also sought directing defendants No.1 & 3 to issue birth certificate to plaintiff showing his date of birth, as 23.4.1964 and to issue matriculation certificate. 3. Defendants No.1 to 3, 5 & 6 filed joint written statement whereby all the allegations of the plaintiff has been denied. In addition, mandatory injunction is also sought directing defendants No.1 & 3 to issue birth certificate to plaintiff showing his date of birth, as 23.4.1964 and to issue matriculation certificate. 3. Defendants No.1 to 3, 5 & 6 filed joint written statement whereby all the allegations of the plaintiff has been denied. The claim of the plaintiff on the basis of record maintained by Purohit at Haridwar is not sustainable and the plea regarding Identity Card and Ration Card is also vague, since it reflects age of the plaintiff, at a given point of time, without indicating actual date of birth. The plaintiff could not produce any proper proof regarding his different date of birth, as claimed by him and accordingly his application, under Section 13 (3) of Registration of Births and Deaths Act was rightly dealt with. Separate written statement was filed by defendant No.7 i.e. Punjab School Education Board, the authority which issued the matriculation certificate, which is the prime proof of date of birth. They have no knowledge regarding claim of the plaintiff that his date of birth is 23.4.1964. Defendant No.7 further averred that they cannot change the date of birth in the matriculation certificate without orders of the competent authority. 4. From the pleadings of parties, the learned trial Court framed following issues : “1. Whether the date of birth of the plaintiff recorded in the matriculation certificate as 10.4.1962 is wrong and incorrect and liable to be corrected, as alleged ? OPP. 2. Whether the plaintiff is entitled to the relief of declaration that his date of birth as 23.4.1964, as alleged ? OPP. 3. Whether the plaintiff is entitled to the relief of mandatory injunction against the defendants regarding correction of date of birth as prayed ? OPP. 4. Whether this Court has no jurisdiction to adjudicate the lis ? OPD. 5. Whether the plaintiff has no locus standi to file the instant suit ? OPD. 6. Whether the suit is not maintainable in the present form, as alleged ? OPD. 7. Whether the plaintiff has no cause of action to file the present suit ? OPD. 8. Whether the plaintiff is estopped by his act and conduct to file the present suit ? OPD. 9. Whether the suit is barred by limitation ? OPD. 10. Whether the suit is bad for noncompliance of Section 80 (2) of the CPC ? OPD. 11. OPD. 8. Whether the plaintiff is estopped by his act and conduct to file the present suit ? OPD. 9. Whether the suit is barred by limitation ? OPD. 10. Whether the suit is bad for noncompliance of Section 80 (2) of the CPC ? OPD. 11. Relief.” 5. The learned trial Court after deciding Issues No.1 to 10 in negative, dismissed the suit. 6. Feeling aggrieved thereby the plaintiff maintained first appeal before the learned District Judge, Kangra at Dharamshala, assailing the findings of learned Court below being against the law and without appreciating the evidence and pleading of the parties to its true perspective. The learned lower Appellate Court affirmed the findings of the learned Court below. Now, the appellant has maintained the present Regular Second Appeal, which was admitted for hearing on 7.3.2013 on the following substantial questions of law: “1. Whether both the impugned judgments and decrees passed by Courts below stand vitiated on account of misreading and mis-appreciation of Section 13 (3) of the Registration of Births and Deaths Act, 1969? 2. Whether rejection of application for appointment of commission by trial Court vitiated the impugned judgment and decree and, in turn, judgment and decree passed by ld. District Judge also, as despite taking specific ground, same was not addressed ? 3. Whether dismissal of application under Order 41 Rule 27 CPC by ld. First Appellate Court vitiated the impugned judgment and decree ? 4. Whether impugned judgments and decree stand vitiated on account of complete mis-reading and misappreciation of statements of PW1 to PW6 and mis-reading and misappreciating documents, Ex.PW6/G (yellow card), Ex.PW6/E (Ration Card of the plaintiff), Ex.PW6/F (Ration Card of the father of the plaintiff), Ex.PW6/C and Ex.PW6/D (voter lists) and Ex.P1/A and Ex.P1/B ?” 7. Learned counsel appearing on behalf of the appellant has argued that the learned Courts below have committed illegality in not taking the date of birth of the appellant, as 1964, as by no imagination, a person will pass matriculation at the age of 19 years, but always a person passes matriculation at the age of 17 years. Learned counsel appearing on behalf of the appellant has argued that the learned Courts below have committed illegality in not taking the date of birth of the appellant, as 1964, as by no imagination, a person will pass matriculation at the age of 19 years, but always a person passes matriculation at the age of 17 years. To further emphasize, learned counsel appearing on behalf of the appellant has submitted his written arguments, relevant portion of which is quoted hereinbelow : “The appellant-plaintiff sought declaration by filing suit that he is entitled to get his birth entry recorded in the birth register maintained in the office of Chief Medical Officer-cum-District Registrar, Births and Deaths, Kangradefendant No.2 and is entitled to get his date of birth certificate issued depicting the date of birth as 23.4.1964. The said suit was filed on the premise that application dated 9.5.2007, as per provisions of Section 13 (3) of the Registration of Births & Deaths Act, 1969, came to be filed before respondent No.2, but without any results and in the suit consequential relief of mandatory injunction is also prayed, directing defendants No.1 to 3 to issue date of birth certificate and defendant No.7 to carry out necessary corrections in matriculation certificate and furthermore mandate to defendant No.8 to effect the change of date of birth in service records. Defendants came with the plea that date of birth of the plaintiff, as per letter of Director of Health Services be taken as 10.4.1962. Defendant No.4 filed written statement stating that date entered in the matriculation certificate is an authentic proof and said defendant is in agreement with decision taken by defendant No.3. When the matter came up for hearing before this Court, directions came to be passed to the authorities concerned to produce the register maintained for the purpose as per provisions of the Act by defendant No.2 and defendants No.5 & 6 to produce on record action on the application of plaintiff dated 9.5.2007. When the matter came up for hearing before this Court, directions came to be passed to the authorities concerned to produce the register maintained for the purpose as per provisions of the Act by defendant No.2 and defendants No.5 & 6 to produce on record action on the application of plaintiff dated 9.5.2007. As per the provisions of Section 13 (3) of the Act, if are gone into on the request of the appellant/plaintiff, in the event of entry of birth being not there from the date of occurrence within a period of one year, an application for the purpose can be filed, as is in the case in hand, dated 9.5.2007 and as per provisions of the Act and Rules, inquiry is required to be made, in the case in hand by defendant No.5 for verifying the correctness of the birth on payment of prescribed fees and thereafter the same is required to be registered by defendant No.2. The ends of justice will be met in case, at this stage only directions are issued to defendant No.5 to conduct an independent inquiry de hors of whatever evidence has come on record of this case and conclusions so arrived at may be ordered to be forwarded to defendant No.2 for making an entry, that will clinch the issue. The judgments and decrees impugned in the present appeal stand vitiated on account of; (a) non consideration of application dated 9.5.2007 filed by the plaintiff inconsonance with provisions of Section 13 (3) of the Act and making entry on the directions of Director of Health Services, who in fact, exceeded the jurisdiction vested in him, thereby vitiating the entry, as made with respect to the birth of appellant/plaintiff; (b) affidavit of the mother of the plaintiff in examination-in-chief, being the star witness was on records, but despite that courts below did not examine her in witness box and the fault being of the court, as per settled law, in the case in hand, appellant/plaintiff may not be allowed to suffer and her evidence may be read in evidence. An application having been filed with the request for appointment of a Commission to verify affidavit of Mukesh Bhardwaj, but dismissal of the said application vide order dated 26.10.2010 being contrary to the provisions of Order 26 Rule 4A of the Code of Civil Procedure and said decision again vitiated the impugned decision. An application having been filed with the request for appointment of a Commission to verify affidavit of Mukesh Bhardwaj, but dismissal of the said application vide order dated 26.10.2010 being contrary to the provisions of Order 26 Rule 4A of the Code of Civil Procedure and said decision again vitiated the impugned decision. An application, under Order 41 Rule 27 CPC as filed, vide para-16 of the impugned judgment having been dismissed by learned First Appellate Court below, but contrary to the said provisions as case of the appellant/plaintiff is covered per order 41 Rule 27 (1) of CPC.” 8. On the other hand, learned Additional Advocate General has argued that the date of birth, as mentioned in matriculation certificate of the appellant is correct, as the same has been recorded, as per the statement of guardian, who admitted the appellant in School and as per the appellant, few years ago, he admitted his date of birth and now, he was nearing to retire, he has maintained the present suit. 9. Learned counsel appearing on behalf of the respondent has vehemently argued that there is no proof with respect to the alleged date of birth and his date of birth has relied upon, which appears in the matriculation certificate is the correct date of birth. 10. In rebuttal, learned counsel appearing on behalf of the appellant has argued that date of birth of the appellant may be corrected, as otherwise the appellant suffered irreparable loss and the findings of the learned Courts below, which are perverse may be set aside. 11. To appreciate the arguments of learned counsel appearing on behalf of the parties, I have gone through the entire record in detail. 12. In order to prove its case, PW-1, Sudesh Kumari, deposed that she has brought the School record pertaining to admission entry of plaintiff-Balbir Singh. PW-2, Rakhi Devi, deposed that Amriti Devi, gave birth to the plaintiff at her house. She deposed that plaintiff was born to her daughter on 23.4.1964. In her cross-examination, she deposed that she does not know the name of calendar months in English nor in local dialect. She has further deposed that she cannot recollect the date, month and year of birth of her grand-son i.e. plaintiff. She deposed that she cannot recollect the date, month and year of birth of her grand son i.e. plaintiff. In her cross-examination, she deposed that she does not know the name of calendar months in English nor in local dialect. She has further deposed that she cannot recollect the date, month and year of birth of her grand-son i.e. plaintiff. She deposed that she cannot recollect the date, month and year of birth of her grand son i.e. plaintiff. PW-3, Munshi Ram, deposed that at the time of birth of the plaintiff, he was present and the plaintiff was born on 23.4.1964. In his cross-examination, he deposed that he does not remember the date of birth of plaintiff. PW-4, Malhar Singh, deposed that plaintiff was born in the house of his father-in-law, Ram Lal and stated that date of birth of the plaintiff is 23.4.1964. He deposed that he does not know on which date, he was born. He deposed that he has six children and he cannot tell the date of birth of each of them or any of them. In his cross-examination, he deposed that he is illiterate and does not know as to when his son (plaintiff) was born. PW-5, Noori, deposed that as per the School admission register, date of birth of the plaintiff is recorded, as 10.4.1964 and admission form Ex.PW5/A, which is the admission register, shows the date of birth of plaintiff as 10.4.1962. PW-6, Balbir Singh, deposed that the actual date of birth is 23.4.1964 and date of birth recorded in matriculation certificate, as 10.4.1962 is wrong. In his cross-examination, he deposed that he joined the service in the year 1987. He deposed that at the time of joining, he mentioned his date of birth, as 10.4.1962. DW-1, Ashwani Kumar, deposed that as per public notice Ex.D-5, it is stated by the Education Board that any correction in the matriculation certificate should be applied within five years of the declaration of result. Further, thirty days were given as per public notice Ex.D-5. As per Ex.D-4, which is notification of defendant No.7, it is mentioned that correction in date of birth shall only be made within two years from the date of declaration of result by the Board, but not beyond five years in any case. 13. From this evidence on record, it is clear that none of the witnesses could state exactly what is the date of birth of the appellant. 13. From this evidence on record, it is clear that none of the witnesses could state exactly what is the date of birth of the appellant. Even, PWs 2 to 6, in their cross-examination could not say about the date of birth of the appellant. There is no other proof brought on record, which substantiate the allegations of the plaintiff that he was born on 23.4.1964 and date of birth recorded in the matriculation certificate i.e. 10.4.1962, are wrong. The plaintiff has to prove his case and no decree can be granted, which is just on the basis of surmises and conjectures. It is quite clear that the plaintiff seeking declaration regarding his date of birth. The plaintiff assailing date of birth, which is 10.4.1962, as recorded in his matriculation certificate and also recorded in his service record with defendant No.8. The plaintiff averred that the said date of birth recorded in matriculation certificate is wrong and he was actually born on 23.4.1964. It is a settled law that the date of birth recorded in the matriculation certificate is the best evidence regarding date of birth. The date of birth, as recorded in matriculation certificate of plaintiff is 10.4.1962, which is also evident from Ex.PW5/A, which is the admission register proved on record by the said witness. The date of birth recorded in the matriculation certificate is wrong and actual date of birth is different. The plaintiff has not proved on record any document showing his date of birth, as 23.4.1964. The plea that voter cards, ration cards reflect his age, as 41 years in particular year is not sufficient to indicate the date of birth of plaintiff, as 23.4.1964. These documents merely show that approximate age of the plaintiff in a given year without indicating the actual date of birth. No document reflects the date of birth of the plaintiff, as alleged by him to be 23.4.1964. PWs 2 to PW4 have stated in their cross-examination that they do not know about the actual date of birth of the plaintiff. There is no evidence on record on behalf of the plaintiff to show his actual date of birth, as 23.4.1964. It is also clear that the present suit was filed in the year 2007, whereas the plaintiff has joined services in the year 1987. There is considerable delay in filing the plaint also. There is no evidence on record on behalf of the plaintiff to show his actual date of birth, as 23.4.1964. It is also clear that the present suit was filed in the year 2007, whereas the plaintiff has joined services in the year 1987. There is considerable delay in filing the plaint also. In these circumstances, this Court finds that the judgments and decrees passed by both the learned Courts below are in accordance with law. Substantial question of law No.1, is answered holding that the findings recorded by the learned Courts below are after appreciating the evidence properly and to its true prospective and Section 13 (3) of the Registration of Births and Deaths Act, 1969 is correctly interpreted. Substantial question of law No.2, is answered holding that rejection of the application for appointment of Commission has not vitiated the appeal, as the Court has not to create evidence. Substantial question of law No.3, is answered holding that the learned lower Appellate Court has dismissed the application, under Order 41 Rule 27 of the Code of Civil Procedure, as there was no evidence, which the plaintiff could not produce without exercising due diligence and so, this Court finds that there is no infirmity with the rejection of application, under Order 41 Rule 27 of the Code of Civil Procedure. Substantial question of law No.4, is answered holding that the judgments and decrees passed by the learned Courts below are after appreciating the evidence and pleadings correctly and other documents i.e. Ex.PW6/E to Ex.PW6/G, as there is nothing on these documents, which show that date of birth of the appellant is not recorded, as averred by the plaintiff, as there is no positive proof with respect to the date of birth, as averred by him. The learned Courts below have not mis-appreciated and mis-interpreted the documents, Ex.PW6/E to Ex.PW6/G. 14. In view of the above discussion, the appeal of the appellant is without merit, deserves dismissal and is accordingly dismissed. In the peculiar facts and circumstances of the case, parties are left to bear their own costs. Pending applications, if any, shall also stands disposed of.