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2023 DIGILAW 135 (AP)

Koru Ramesh v. District Collector

2023-01-19

V.R.K.KRUPA SAGAR

body2023
JUDGMENT : V.R.K. KRUPA SAGAR, J. 1. The date of birth of the appellant is in issue in the second appeal. 2. The appellant filed O.S. No. 492 of 2004 before the learned Principal Junior Civil Judge, Nandigama seeking for declaration that he was born on 15.10.1965 and that was recorded in the birth records of Gram Panchayat, Nandigama to declare that as the correct date of birth and pass such other orders as the Courts deems it proper. Five defendants are shown. On settling issues and on recording oral and documentary evidence the learned trial Court dismissed the suit. 3. Aggrieved of it, the plaintiff argued his first appeal in A.S. No. 72 of 2013 and the learned XVI Additional District Judge, Nandigama by judgment dated 24.02.2014 dismissed the appeal. 4. It is against that the plaintiff in the suit brought the second appeal under Section 100 C.P.C. A Learned Judge of this Court admitted this appeal on 15.12.2017 on the following substantial questions of law: (1) Whether the plaintiff is entitled for the benefit of the presumption under Section 114 of the Indian Evidence Act? (2) Whether the entries made by the Registrar of Births (in the instant case the records of Gram Panchayat) will prevail over the self-serving statement of date of birth while admitting the ward in the school by his parent? (3) Whether the Courts below can ignore the important fact brought to their notice about the difference in the mother of the plaintiff as well as the step-brother and younger stepsister of the plaintiff? 5. While the appeal was coming up for hearing the appellant filed I.A. No. 01 of 2018 under Order 41 Rule 27 r/w. Section 151 C.P.C. seeking permission to produce additional evidence in the form of two documents. 6. Learned counsel for appellant and learned Assistant Government Pleader submitted their arguments. 7. The appellant was a Deputy Chief Air Craft Engineer in Air India Limited at Mumbai. There are seven children to his parents. Out of them, six are males and one is female and this appellant is the fifth child to his parents. While he was admitted into first class in MGH High School, Nandigama his date of birth was mentioned as 19.03.1964. That continued when he was admitted into 6th class also as per Ex.B1 and B2. The same continued when he studied tenth class. While he was admitted into first class in MGH High School, Nandigama his date of birth was mentioned as 19.03.1964. That continued when he was admitted into 6th class also as per Ex.B1 and B2. The same continued when he studied tenth class. He furnished the same date of birth to his employer at the time of entry into service. At the fag-end of his service career, he pleaded and stated that on 25.06.2004 he realized that his correct date of birth was 15.10.1965 which was also entered into the birth records of Gram Panchayat, Nandigama. Finding that between the correct date of birth and incorrect date of birth the difference is one year six months and twenty six days and that would affect the date of his superannuation, he made requests to District Educational Officer/D3 and Head Master of the school where he studied/D4 requesting them to alter his date of birth in the records. Since they refused to do so, he filed the suit on 25.10.2004. 8. Defendants put in their written statement and took the stand that in terms of Exs.D7 and D8 Government Orders of the State of Andhra Pradesh and Rule 2A of Andhra Pradesh Public Employment (Recording and Alteration of Date of Birth) Rules, 1984 procedure was prescribed and time limits were mandated for considering a request to carry out corrections in the date of birth but the plaintiff failed to pursue those remedies within the permitted time limits and therefore the suit cannot be maintained. 9. On evidence that was made available by both sides, the learned trial Court held that plaintiff was not entitled to seek declaration that he prayed for and dismissed the suit. 10. When the first appeal was heard, the learned Additional District Judge, considering the same evidence on record, held that the evidence of mother of the plaintiff who testified as PW-3 indicated that the time gap between birth of each of her child was about 2½ years. The date of birth of Smt Nirmala Kumari/sister of the plaintiff was found recorded as 07.02.1966. If the contention of the plaintiff that he was born on 15.10.1965 is to be accepted as correct then between his birth and the birth of his sister the time gap was only 4½ months and that itself improbablises the version of the plaintiff. The date of birth of Smt Nirmala Kumari/sister of the plaintiff was found recorded as 07.02.1966. If the contention of the plaintiff that he was born on 15.10.1965 is to be accepted as correct then between his birth and the birth of his sister the time gap was only 4½ months and that itself improbablises the version of the plaintiff. It verified Ex.A1 which is an attested copy of birth certificate issued by Gram Panchayat, Nandigama and Ex.A3 Birth Register of 1965 where the relevant entry at Serial No. 189 is marked as Ex.A4 and observed that the said entry was found tampered with and those entries could not be relied upon. The appellate Court as well as the trial Court considered the serious discrepancies in the evidence of PW-1 with reference to the person who applied to the Grampanchayat authorities for registering the date of birth and about the person who admitted the plaintiff into school by filing application for admission mentioning the date of birth of the plaintiff. First appellate Court recorded categorical findings that what was pleaded was not proved and what was sought to be proved was not supported by relevant pleadings. It observed that plaintiff was not speaking truth and stated that there was no satisfactory evidence to hold that plaintiff was born on 15.10.1965. It went on to say that there was no assurance to it to accept Exs.A3 and A4 really pertain to birth entry of the plaintiff. It then went on to say that plaintiff who committed wrongs cannot be permitted to reap advantage out of his own wrongs. Based on evidence a finding was recorded that the plaintiff swore and stated that by the time he joined in his employment he knew the date of birth contained in his educational certificates was incorrect and he admitted that his service register was made to contain only such incorrect entries. He further stated that his own father knew about the incorrect date of birth even when the plaintiff was admitted into Intermediate. He further stated that his own father knew about the incorrect date of birth even when the plaintiff was admitted into Intermediate. In the light of such evidence the first appellate Court held that the suit of the present nature being governed by Article 58 of the Schedule of Limitation Act ought to have been filed within three years calculated from any one of the above referred periods but plaintiff did not sue but he falsely claimed that he came to know about incorrect date of birth only on 22.07.2004 and filed the suit. It held that by virtue of the Section 3 of Limitation Act, 1963 Court has an obligation to consider the aspect of limitation even in the absence of rival pleadings concerning limitation. It heard the arguments of learned counsel for appellant with reference to limitation. The appellant exerted to convince the first appellate Court that the suit was not barred by limitation as it is governed by Article 113 of the Schedule of the Limitation Act. Giving its own reasons the first appellate Court negatived that contention and held that subject matter was governed by Article 58 of Schedule of the Limitation Act only. Holding so it held that the suit itself was barred by limitation. Another important finding of the first appellate Court was that as per the cause of action paragraph of the plaint the need that prompted the plaintiff to come up with the suit is only to overcome the date of his superannuation but in the prayer he sought for a mere declaration of his date of birth and did not seek for any consequential relief. That the facts on record do not permit him for a mere declaration and by virtue of mandate contained in Section 34 of The Specific Relief Act, 1963, the relief sought by the plaintiff without consequential relief could not be granted. Finally it dismissed the appeal and thereby confirmed the judgment of the trial Court in dismissing the suit. 11. It is in the context of these findings the substantial questions of law that are urged by the appellant are to be considered. 12. Be it noted, in the second appeal this Court shall govern its decision based on the finding of the facts recorded by the Courts below. 11. It is in the context of these findings the substantial questions of law that are urged by the appellant are to be considered. 12. Be it noted, in the second appeal this Court shall govern its decision based on the finding of the facts recorded by the Courts below. Infact the findings on facts that are recorded by Courts below have not been shown to me by the appellant as perverse or that they were not based on material on record or that such findings were arrived at in ignorance of the material on record. Independent of any contentions even by virtue of power available under Section 103 C.P.C. this Court has looked into the correctness of findings recorded by Courts below and this Court could not find anything incorrect. 13. ‘Vital statistics’ including registration of births and deaths is in list III, entry 30 of the Constitution of India. The earliest of the important legislations which comprehensively provided a mechanism for registration of births is The Births, Deaths and Marriages Registration Act 1886. Section 9 provides that a certified copy of entry from the index of the register of births and deaths is admissible in evidence for the purpose of proving the birth. It carries a presumption of correctness. The presumption is rebuttable. The next important legislation is the Registration of Births and Deaths Act, 1969. Section 17(2) of this Act provides that certified extract of the entry, as prescribed in Section 76 of the Indian Evidence Act, if issued by the competent authority the same is admissible in evidence for the purpose of proving the date of birth. This certificate also grants a presumption of correctness attached to it, but the presumption is rebuttable. The appellant has not cited any statutory provision or precedent to the affect that the entry of date of birth contained in the Register of Births and Deaths maintained by Gram Panchayat, Nandigama carries a conclusive fact not amenable for rebuttal. The argument of the appellant is on the following lines: The entries in the school record concerning date of birth of the ward are based on statement of that person who admitted the ward into the school. The parents of plaintiff admitted plaintiff into the school and out of mistake wrong date of birth was furnished and therefore the school certificates carry in-correct date of birth. The parents of plaintiff admitted plaintiff into the school and out of mistake wrong date of birth was furnished and therefore the school certificates carry in-correct date of birth. That the correct date of birth is what is contained in Exs.A1, A3 and A4 which is 15.10.1965 and once the evidence of PW-1, his mother PW-3, indicated that he was born on 15.10.1965 and when once the difference was noticed the presumption under Section 114 of Evidence Act should be applied and this Court shall presume that is the correct date of birth and that date of birth shall prevail over the date of birth mentioned in school register and service register. 14. All that argument may be available for consideration if at all the established facts allow such argument. As mentioned earlier, finding on fact recorded by both the Courts below show that there was no satisfactory evidence indicating that this appellant was born on 15.10.1965. That the entry in the Register of Births and Deaths maintained by Gram Panchayat were found tampered with. There was no explanation from plaintiff as PW-1 or the Village Officer/PW-2 on that aspect of tampering. Further, it was found impossible for a mother to give birth to two children within a span of 4½ months. It was on these factual findings learned trial Court and the learned first appellate Courts refused to consider the date of birth as claimed by the appellant/plaintiff was correct. As seen earlier, no conclusive presumption is available to the correctness of entries made in the Register of Births and Deaths. In fact when the records produced before the Courts below indicated interpolations and tampering, no Court of law could attach any such presumption as is argued by the learned counsel for the respondents. Therefore the argument of the appellant that the entries in the Register of Births and Deaths shall prevail over the entries in the school records boils down to a contention for academic purpose and does not survive. On the established facts, the arguments based on Section 114 of Indian Evidence Act are misplaced and are thus negatived. 15. The application for additional evidence in I.A. No. 01 of 2018 narrates a new story. On the established facts, the arguments based on Section 114 of Indian Evidence Act are misplaced and are thus negatived. 15. The application for additional evidence in I.A. No. 01 of 2018 narrates a new story. The affidavit of this appellant filed in support of this application shows that his father had two wives and through first wife four children were born and through second wife three children were born and at the time of admission of this appellant into school the parents gave date of birth of appellant’s step brother Mr. K. Ravi Kumar and that was out of mistake. Now he obtained certified copies of date of birth certificate of that Ravi Kumar and also that of his sister. If these two documents are taken up for consideration it would enable the Court to record a finding in favour of the appellant that he was born on 15.10.1965. In his affidavit he further stated that during the course of trial he did not file these documents since he could not effectively give details to his counsel at that time. Now when the second appeal has come up for arguments he has discussed with his counsel and realized the importance of these documents and therefore proposes to file those documents. Explaining the power of this Court to receive additional evidence, learned counsel for the appellant cited Union of India vs. K.V. Lakshman and Others, 2016 (5) ALD 38 (SC). Their Lordships held that, in the event of showing and convincing the appellate Court that there was justifiable reasons for the appellant for not filing such proposed evidence during the stage of trial before the trial Court the appellate Court to have ends of justice met could receive the additional evidence. Their Lordships further held that when one party is permitted to file additional evidence, the Court should also grant opportunity to the opposite party to file additional evidence by way of rebuttal. As against the application for additional evidence, the learned Assistant Government Pleader for respondents submitted that the dates of birth certificates of his own siblings/step brother and step sister were within the full knowledge of the appellant from the time of filing of the suit and all throughout and obtaining certificates of them was also within his capability and his own inept handling of his own case cannot be a justification to receive them now. Having failed to furnish this evidence which he believed to be relevant for trial, he could not now ask this Court to receive such evidence after the case was completed in two Courts below. The cause assigned is against law. For these reasons respondents prayed this Court to dismiss the application. 16. Order XL1 Rule 27 Sub-Rule (1) opens by mandating that parties in appeal shall not be entitled to produce additional evidence. However, such additional evidence could be received by way of an exception, if any of the situations mentioned in the provision are satisfied. The first allowance is when such additional evidence was sought to be produced before the trial Court and was wrongly refused by the trial Court. In the case at hand, this situation is not available. The other circumstances is that despite due diligence the applicant hand no knowledge of existence such evidence. It is undeniable that in the suit it is not only the plaintiff but also his mother gave evidence and they spoke about all their family members and furnished dates of births of some of the children. If that be the case, it is very clear that this appellant had full knowledge of dates of births of his own siblings. To have evidence with reference to the dates of births of his siblings is a matter for him but he omitted to have it in both the Courts below and now to overcome a well founded observation of the first appellate Court about improbability of two births within a span of 4½ months, now he has come up with this application. The fact that his father had two wives and different children was never the part of his pleaded case. There was no opportunity for the defendants in the suit to controvert that. The argument of the appellant is that in the interest of justice this application may be allowed. If not dealt with in accordance with law it would lead to a very unhappy situation where parties to the litigation had to start making verification of the facts so as to meet the proposed documents. There is absolutely no reason to consider this application of this appellant. Be it noted, in all fairness learned counsel for appellant also submitted that appellant already retired from service. There is absolutely no reason to consider this application of this appellant. Be it noted, in all fairness learned counsel for appellant also submitted that appellant already retired from service. It is in these circumstances, this application for appellant for additional evidence shall be dismissed on the touch stone of doctrine of due diligence. 17. Strictly speaking the prayer in the suit is only brutum fulmen as it leads to an ineffectual legal judgment. This appellant was merely seeking that his date of birth as mentioned in Register of Births and Deaths is correct and he has not sought for any further consequential relief. Learned appellate Court found fault with it. While arguing this appeal learned counsel for appellant submits that mere declaration is also maintainable and cited Chhabi Dushadh vs. Buhuneshwar Pandey, AIR 2004 Jharkhand 92. In that case the prayer in the suit was for a declaration that the suit schedule properties were under the right of plaintiff by virtue of the fact that they are occupancy raiyati lands. On facts it was found that plaintiff was found in possession of those properties and the flow of title was proved. Therefore the suit for mere declaration was found sufficient and there was no further need found on facts to seek for any consequential relief. Therefore referring to the facts of that case, the Hon’ble Jharkhand High Court held that there was no violation of Section 34 of Specific Relief Act. While deciding that matter it was also held that the proviso to Section 34 of Specific Relief Act is imperative and makes it obligatory to every Court not to make any declaration in cases where the plaintiff being able to seek further relief omits to do so. 18. In the case at hand, at more than one place the first appellate Court has mentioned detailed reasons showing that plaintiff was to ask for consequential relief of correction of entries in his school and college certificates with reference to date of birth and was further required to seek for correction of date of birth in service register but he omitted to do it. Thus, even going by the precedent cited by the appellant his case does not find support in it and it falls within the ambit of proviso to Section 34. Thus, even going by the precedent cited by the appellant his case does not find support in it and it falls within the ambit of proviso to Section 34. Therefore, the finding of the appellate Court that failure to ask further relief was one inhibiting factor from giving judgment in favour of the appellant shall be approved here. It may be noted that unless some substantial injury is to be remedied, Courts shall not indulge in granting declaration. If the plaintiff thinks that a bare declaration would serve the purpose it is for him to satisfy the Court and if he fails to satisfy, the Court could not grant a relief that is not in accordance with law. In fact Section 34 of The Specific Relief Act, 1963 employees the word “any legal character.” The word ‘legal’ before the word “character” is not without significance. They mean the status in the society of the person seeking declaration. For instance, whether a person is a legitimate son of another, whether a person is the adoptive father of another etc. Birth on a particular date does not clothe a person with any status. Date of birth is only an event in a person’s life. While it is possible to contemplate that serious consequences might flow from such date of birth, in substance it would always amount to asking for the declaration of an event. It is quite possible to say that the declaration sought for is not of a legal character. As long as the appellant did not ask for any consequential relief on the strength of the correct date of birth, a mere declaration of his date of birth remains a question of academics and nothing beyond. The decision of the first appellate Court that the suit was barred by time has not been mentioned in the memorandum of grounds of appeal and no arguments are advanced on the aspect of limitation before this Court. Thus that finding became final. It is for all these reasons this Court finds that there is absolutely no merit in this appeal. 19. In the result, this second appeal is dismissed with costs. 20. As a sequel, miscellaneous applications pending, if any, shall stand closed.