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State of Karnataka Vs. Vishwanatha Rao - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKarnataka High Court
Decided On
Case NumberRSA No. 662 of 1983
Judge
Reported inILR1985KAR2460
ActsSpecific Relief Act, 1963 - Sections 34; Code of Civil Procedure (CPC) , 1908 - Sections 2(2) and 9; Karnataka Registration of Births and Deaths Rules - Rule 12
AppellantState of Karnataka
RespondentVishwanatha Rao
Appellant AdvocateC.S. Kothavale HCGP, Adv.
Respondent AdvocateR. Gopal, Adv.
DispositionAppeal allowed
Excerpt:
specific relief act, 1963 (central act no. 47 of 1963) - section 34 -- declaration as to date of birth is declaration of an event and no relief in law -- suit for declaration not maintainable.;plaintiff's suit for declaration regarding correct date of birth was decreed and confirmed by lower appellate court. in second appeal question of law arose as to 'whether such a suit or a declaratory decree is, in law, maintainable ?;plain reading of section 34 makes it abundantly clear that in such cases the plaintiff has to fall within the scope and ambit 'entitled to any legal character', as evidently such a declaration would not have any relevance to any right as to any property....legal character has been taken to mean legal status .... when a person is born he acquires a legal.....nesargi, j.1. a batch of second appeals have come up for hearing. these appeals relate to the question of declaration of the correct date of birth of the plaintiffs concerned in those appeals. as, on the discussion, it was found that a common question of law was likely to arise in all these appeals, the court invited members of the bar whether or not appearing in any of these cases, to assist the court. some of the advocates of a number of years standing, did assist the court. the court is thankful to them.2. the appellants in this appeal were the defendants in the trial court. the respondent plaintiff filed the suit in question for declaration that his correct date of birth is 9-11-1956 and not 10-12-1954 as noted in the school records of the defendants pertaining to him. he prayed for.....
Judgment:

Nesargi, J.

1. A batch of Second Appeals have come up for hearing. These appeals relate to the question of declaration of the correct date of birth of the plaintiffs concerned in those appeals. As, on the discussion, it was found that a common question of law was likely to arise in all these appeals, the Court invited members of the Bar whether or not appearing in any of these cases, to assist the Court. Some of the Advocates of a number of years standing, did assist the Court. The Court is thankful to them.

2. The appellants in this appeal were the defendants in the Trial Court. The Respondent plaintiff filed the suit in question for declaration that his correct date of birth is 9-11-1956 and not 10-12-1954 as noted in the School records of the defendants pertaining to him. He prayed for costs of the suit.

3. The plaintiff averred in the plaint that he was born in his parents house on 9.11.1956; completed his early education in Government Primary Boys School, Shiralkoppa and then joined Middle School at Shiralkoppa. He completed his studies in High School and in Municipal Secondary School Shiralkoppa and completed his S.S.L.C. in the National MultiPurpose Higher Secondary School, Shimoga, in the year 1971. He completed his P.U.C. and passed his B.A., degree in 1979. He has gone on to narrate other facts which would not be, in my opinion, very material for a decision in this appeal. According to him, he reasonably suspected that his date of birth had been wrongly entered and this had happened in the first week of June 1981. He searched for the horoscope and onverifying the same, he found out that his correct date of birth was 9.11.1956 and not 10 12.1954. He went to the Taluk office to have an authenticated public document, but found that his date of birth was not entered in the Birth Register maintained in the Taluk office. He therefore, issued a notice under Section 80 of the Code of Civil Procedure dated 31-7-1981 and got the same served on the defendants. According to him, the cause of action arose in the first week of June 1981 when he noticed the mistake.

4. The defendant filed their written statement and urged that the suit was highly belated. There was no cause of action to file the suit and the cause of action mentioned by the plaintiff is an imaginary one. According to them, the mistake or wrong entry of the date of birth was committed at the Government Primary Boys School,Shiralkoppa and therefore the Court had no jurisdiction. It is maintained that the date of birth as forwarded from the EducationalInstitutions concerned upto the taking of the S.S.L.C. examination by the plaintiff, has continued to appear in the records.

5. The Trial Court decreed the suit in regard to declaration and further directed that the date of birth of theplaintiff in school records should be rectified to show 9.11.1956. The lower appellate Court confirmed the decree.

6. This Court has formulated the following substantial questions of law while admitting the appeal on 5-1-1984.

(I) Whether the present suit for correcting the date of birth by a non-Government servant is maintainable ?

(2) Whether the present suit for correcting the date of 'birth in the S.S.L.C. Certificate without the Karnataka Secondary Education Examination Board being made a party is sustainable ?

7. I am unable to understand how it can be said under the facts and circumstances of the case that the first question formulated does arise. If at all it has to raise, it can only be from the perspective of such a suit for bare declaration being maintainable or not. The plaintiff beingnon-Government servant or otherwise would not matter at all.

8. The plaintiff has not chosen to make the Karnataka Secondary Education Examination Board a party to the suit. He has not prayed that his date of birth in the S.S.L.C. Certificate be directed to be rectified. S.S.L.C. Certificate is provided by the said Board as required by Rule 15 in Annexure III of the Karnataka Secondary Education Examination Board Act, 1966. When that is so, the second question of law formulated also does not arise.

9. The plaintiff has, in general, asked for rectification in the school records.

10. It is, in my opinion, necessary at this stage to state in short how, after 5-10-1966i.e., the date on which the Karnataka Secondary Education Examination Board Act, 1966 (hereinafter referred to as the Act) came into force, the students appear for S.S.L.C. examination held by the Board under the Act and are provided with Secondary School Leaving Certificate. There are two ways contemplated under the said Act. One, is a student's application for appearing to the S.S.L.C. examination is forwarded by the concerned school wherein the student has been studying and the other is for a student to appear privately. The first part of it is governed by Section 44, 45 and so on of the Act and the second part is governed by Section 43 of the Act. Under Section 43 of the Act a person intending to appear as a private candidate for the examination has to apply to the Board through a recognised institution for being enrolled as a private candidate and his application for enrolment should be accompanied by one of the following documents as evidence of age, namely.-(1) Baptismal certificate; (2) Extract from the birth register; (3) Affidavit sworn to before a Judicial Magistrate ; (4) Extract from the service register and so on. When a person is born, the birth is reported as per the Rules framed by the various States under the Births, Deaths and Marriages Registration Act, 1896 (Act No.6 of 1896). This Act has given place to Registration of Births and Deaths Act, 1969. Different States have framed Rules under the provisions of this Act. Karnataka State also has framed Rules. If by any chance an entry is not made in the Register of Births, provision has been made in the Rules to get the same entered after proceeding under Rule 10 of the Rules. If at all a wrong entry has been made, the same can be corrected in accordance with the provisions of Rule 12 of the Rules. Even an entry made when no birth had taken place, can be got cancelled by proceeding in accordance with Rule 12.

11. What is clear from the aforementioned is that on a person being born his birth will be entered as having taken place on a particular date as per the information submitted in accordance with the Rules to the Registrar of Births, in the register maintained for that purpose. There are Rules which provide for cancellation, rectification etc., of such entries. While a person is being admitted to a School, Primary or Secondary, his date of birth will be furnished by a person close to the student. The entry in regard to date of birth will continue as such in the school records. When an application of a candidate for S.S.L.C. examination is forwarded by the School authorities to the Board under the Act, the date of birth as appearing in the School records would also be forwarded. If a person appears as a private candidate, he has the choice of providing his date of birth and supporting the same in one of the methods provided in Section 43 of the Act.

12. I have already shown that the two questions formulated as substantial questions of law are not in fact involved in this appeal. That should be sufficient to dismiss this appeal. But, I find that the plaintiff has asked for mere declaration of his correct date of birth as 9-11-1956 in place of 10-2-1954 and has incidentally, asked for rectification of his date of birth in the School records without mentioning which are those records. This suit will have to be considered as a suit for declaration and consequential relief. That is how the plaintiff has approached the Court. When that is so, an important question of law whether such a suit is maintainable or not, does arise. At this stage, one of the contentions raised has to be considered. It was argued that it would not be proper for this Court to make out a new case for any of the parties and in this case theappellants-defendants. Sri M.S. Gopal, learned Advocate appearing in one of the second appeals listed in the batch, relied on the decision of the Supreme Court in Rukhmabai- v. - Laxminarayan : [1960]2SCR253 . The Supreme Court has, while dealing with the proviso to Section 42 of the Specific Relief Act, 1877 and dealing with the contention that consequential relief, though available, had not been asked and therefore the suit was to be dismissed, laid down as follows :

'A plea that the plaintiff asked for a bare declaration though he was in a position to ask for further relief within the meaning of Section 42 and hence the suit should have been dismissed in limine should be raised at the earliest point of time, in which event the plaintiff could ask for accessory amendment to comply with the provision of Section 42. It is 4 well settled rule of practice not to dismiss suits automatically but to allow the plaintiff to make necessary amendment if he seeks to do so. The plea was not allowed to be raised in the Supreme Court.'

Sri M.S. Gopal argued that the question whether the suit is or is not maintainable in view of Section 34 of the Specific Relief Act, 1963 cannot be gone into by this Court in these batch of cases. I have already pointed out how the question is a pure question of law and goes to the root of the matter as competency or otherwise of a Civil Court is directly concerned. I have also shown that there is power in the Court under the proviso to Section 100(5) of the Code of Civil Procedure to raise a substantial question of law though not raised and formulated earlier. To raise the present question, no plea to that effect and no facts giving rise to such a plea are necessary to be found in the pleadings. It is not only a pure question of law, but also a question touching the jurisdiction and competency of the Court to pass such a declaratory decree. If there is no suchcompetence in a Court, the decree passed will be null and void. Therefore, I hold that this contention cannot be accepted. Hence, there is every reason to formulate the substantial question of law, namely.

'Whether such a suit for a declaratory decree is, in law, maintainable ?'

13. Moreover, I find that in the memorandum of appeal the first substantial question of law raised is as follows :

(1) Whether the suit for declaration regarding the correct date of birth of the plaintiff is maintainable as against the State which is not interested in the date of the birth of the plaintiff.

Therefore, it cannot be said that a new case would be made out for the appellants.

14. The plaintiff has prayed for a declaratory decree declaring that his correct date of birth is 9-11-1956 instead of 10-2-1954. If the suit of the plaintiff is maintainable and if the plaintiff succeeds, the Court has to pass a decree.

15. 'Decree' is defined in subjection (2) of Section 2 of the Code of Civil Procedure. It reads as follows;-

'2(2) 'Decree' means the formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final. It shall be deemed to include the rejection of a plaint and the determination of any question within Section 144, but shall not include:-

(a) any adjudication from which an appeal lies as an appeal from an order, or

(b) any order of dismissal for default.'

A plain reading of the definition shows that by the decree the rights between the parties would be adjudicated and the relief prayed for by the plaintiff would either be granted or refused. Therefore, the decree has to relate to a relief. Then the question is whether it is any relief in law to record a finding whether the plaintiff was born on 9-11-1956 or on 10-2-1954. Apparently it would be recording a finding in regard to an event that had taken place. As already pointed out, the plaintiff could have taken recourse to Rule 10 of the Rules framed by the Karnataka State under theRegistration of Births and Deaths Act, 1969 to have an entry made in case he had found that the entry was not available. If at all he had asked for the entry in the year 1954 he might have got it. If a person asks for an extract of an entry pertaining to his birth in a particular year and in fact he was not born that year, no entry would be available in the register and the answer would be 'no'.

16. As already pointed out, declaration of an event cannot by any stretch of imagination be construed as a decree and therefore such a decree cannot be recognised, in law, as a declaratory decree.

17. Chapter VI of the Specific Relief Act, 1963 provides for passing of declaratory decrees. Sections 34 and 35 are the only two Sections in the said Chapter.

They read as follows:-

'Section 34. Any person entitled to any legal character, or to any right as to any property, may institute a suit against any person denying, ' or interested to deny, his title to such character or right, and the Court may in its discretion make therein a declaration that he is so entitled and the plaintiff need not in such suit ask for any further relief.

Provided that no Court shall make any such declaration where the plaintiff, being able to seek further relief than a mere declaration of title, omits to do so.

Explanation.- A trustee of property is a 'person interested to deny' a title adverse to the title of some one who is not in existence, and for whom, if in existence, he would be a trustee.

Section 35. A declaration made under this Chapter is binding only on the parties to the suit, persons claiming through them respectively, and where any of the parties are trustees, on the persons for whom, if in existence at the date of the declaration, such parties would be trustees.'

Plain reading of Section 34 makes it abundantly clear that in such cases the plaintiff has to fall within the scope and ambit 'entitled to any legal character' as evidently such a declaration would not have any relevance to any right as to any property. What is legal character has been the subject matter of many decisions. This Court has, in Duggamma - v. - Ganeshayya A.I.R. 1965 Mysore 97 held as follows while dealing with the very words occurring in Section 41 of the Specific Relief Act, 1877.

'It is difficult to predicate what are all the matters comprehended by the term 'status'. The status of a person means his 'personal legal condition', that is to say, a man's legal condition only so far as his personal rights and burdens are concerned, to the exclusion of his'proprietary relation'. An adjudication on adoption will in law amount to a declaration of status and is decided according to the law of domicile of the party making the adoption. But the claim to succession is not a matter of status in this sense and wouldrelate to the proprietary relation of the claimant........'

The Bombay High Court has, in the decision in Shantha Shamsheer - v. - Kamani Bros. : AIR1959Bom201 while dealing with the provisions of Section 42 of the Specific Relief Act, 1877, held that legal character has been taken to mean legal status, a phrase known to jurisprudence. It has observed as follows:-

'When the legislature used the phrase 'legal character' in the said two Sections (i.e., Section 42 of the Specific Relief Act and Section 41 of the Indian Evidence Act) it is legitimate to assume that the legislature was using the same in respect of some known legal concept and the context in Section 42 of the Specific Relief Act indicates that what was intended to be meant by 'legal character' was 'legal status', It is necessary to ascertain what is meant by 'rights', 'legal rights' and 'legal status'.'

It has been further held as follows :-

'A legal right must be either proprietary, i.e., in the nature of property, or personal and it is only the latter that creates a status.'

In Abdul Karim Sarraya Begam, A.I.R. 1965 Lahore 266 the Full Bench of the Lahore High Court has dealt with this aspect and laid down that the words 'legal character' would attract a suit for declaration of legitimacy as legal character would be legal status of a person. This position in law is, in my opinion, no longer open to argument as the same has been held by various High Courts also.

18. It was argued that if such a declaration does not satisfy the requirements of 'legal status' so as to attract the provisions of Section 34 of the Specific Relief Act, 1963, such a declaration can be sought and granted in exercise of the ordinary civil jurisdiction of Civil Court by virtue of Section 9 of the Code of Civil Procedure. In this connection it was further argued that the Supreme Court has, inRamaraghava Reddy - v. - Seshu Reddy : AIR1967SC436 ruled that Section 42 of the Specific Relief Act, 1877 is not exhaustive of the cases in which a declaratory decree may be made and the Courts have power to grant such a decree independently of the requirements of the said Section. It is plain that theprovisions in Section 42 of the old Act and the provisions in Section 34 of the new Act are not different from each other. It is further seen that in the decision in S.G. Films Exchange- v. - Brijnath Singhji : [1976]1SCR237 the same is the position of law laid down by the Supreme Court.

19. In view of the above, it is to be seen whether the case of the plaintiff falls within the ambit of Section 34 of the Specific Relief Act, 1963 and if not whether it would fall within the scope and ambit of the principles laid down by the Supreme Court in the said two decisions and the well settled principles laid down by the decisions whileconsidering the provisions in Section 9 of the Code of Civil Procedure.

20. To show that the plaintiff's case falls squarely within the ambit of Section 34 of the Specific Relief Act, 1963, it was argued that the date of birth is so intermingled with the status of a person that it must be taken to be directly connected with the legal character of the person at any point of time and therefore, for correcting the entry relating to the date of birth a suit would lie and declaration can be obtained under the provisions of Section 34 of the Specific Relief Act. It was also argued that if the concept of date of birth is kept dissociated from the consequences that flow out of it or the incidence that event carries, it may not relate to status or legal character of the persons whose date of birth is in question. While in actual life, in social relationship and in matters of the world the event of the date of birth cannot be so dissociated and is really not a matter disjunctive from the status of the person. It was also argued that when a person is born he acquires legal status.

21. So far as the latter proposition narrated above is concerned, I have no hesitation in holding that when a person is born he acquires a legal entity and not a legal status. There is considerable difference between legal entity and legal status. In regard to the earlier part of the argument referred to above, I have no hesitation in agreeing with the fact that the consequences that flow out of the date of birth have a wide impact on various aspects of life of a person. But, even then, it is to be seen whether, in law, date of birth of a person will clothe him with legal status. In support of this proposition reliance was placed on the decision in K. M.Sastry - v.- Director, Post Graduate Centre, Ananthpur : (1982)ILLJ66AP . The facts in the said decision were that the petitioner in the Writ Petition in the Andhra Pradesh High Court hadobtained a declaratory decree to the effect that his correct date of birth was 29-12-1921 and not 1-6-1919 as against the Director, Post Graduate Centre, Ananthpur. Even then the Director had not given effect to that decree by making necessary corrections in the petitioner's service record maintained in his office. The Andhra Pradesh High Court has held that the defence of the Respondent that there was no direction to rectify the service records and therefore he had notrectified the service records of the petitioner was an unjustifiable one and that such rectification had to be made. It was observed while dealing with this aspect that admittedly the suit was not a suit governed by Section 34 of the Specific Relief Act and therefore the suit for bare declarationwithout consequential relief was certainly maintainable. Their Lordships of the Andhra Pradesh High Court did not go into the question whether a declaratory decree of the nature sought could be passed by a Court because of Section 9 of the Code of Civil Procedure. The Patna High Court has gone directly into this question in the decision in Tata Iron & Steel Company Ltd- v. -Padala Appanna, (1984) 48 FLR 202 . It has been held as follows :-

'Birth on a particular date does not clothe a person with any status of character. Date of birth is only an event is a person's life. It is quite possible to contemplate that serious consequences might follow from such date of birth but in substance it would always amount to asking for the declaration of an event.'

I respectfully agree with the above and am clearly of opinion that what is asked for by the plaintiff is declaration of an event. It is not any relief in the eye of law.

22. If the ingredients of the main provision in Section 34 of the Specific Relief Act are not satisfied in view of the conclusions reached in the preceding paragraphs, seeking for consequential relief will not take the matter any further in favour of the plaintiff. Even when the main provisions in Section 34 of the Specific Relief Act, 1963 are satisfied, the Court has got to exercise its judicial discretion in deciding whether declaratory decree should or should not be granted. Even that discretion would be lost when the plaintiff omits to pray for the consequential relief even when it arises out of the declaratory decree. That is the effect of the proviso to Section 34 of the Specific Relief Act, 1963.

23. In view of the foregoing, I hold that a suit for declaration of the correct date of birth even though accompanied by a further relief for rectification of the School records, is not maintainable in view of Section 34 of the Specific Relief Act, 1963.

24. Section 9 of the Code of Civil Procedure lays down as follows.

'The Court shall (subject to the provisions herein contained) have jurisdiction to try all suits of a civil nature excepting suits of which their cognizance is either expressly or impliedly barred...........'

What is a suit of civil nature has been the subject-matter of any number of decisions right from 1859 when the Code of Civil Procedure was brought into force in the first instance and after 1877 when the Code of Civil Procedure wasamended and the Specific Relief Act of 1877 was brought into force and after 1908 when the Code of Civil Procedure wasre-enacted and was holding the field till 1976 when it was again amended by Act No. 104 of 1976 with effect from 1-2-1977 in regard to the majority of the provisions. While dealing with the question of caste etc., it has beenconsistently held by almost all the High Courts that a suit for mere declaration that a person belongs to a particular caste would not be maintainable as such a suit would not be a suit of civil nature. It has been repeatedly held by the various High Courts that a suit for declaration that a plaintiff is entitled to certain honours in a temple or certain position in a society or privileges and so on, is also not maintainable as it is not a suit of civil nature. The declaration that will be made by a Court will be declaratory decree in law. When a decree is to be passed, a relief has to be either granted or refused. When it is seen that date of birth does not clothe a person with any legal status, then it is easy to see that he would not be entitled to any such declaratory relief by way of a suit for declaration in the guise that his suit is of a civil nature as it is not of criminal nature.

25. During the arguments in support of the proposition that suits for declaration of correct date of birth aremaintainable, the Learned Counsel heavily relied upon the two decisions of the Supreme Court, namely : AIR1967SC436 and : [1976]1SCR237 . The facts in Ramaraghava Reddy's case are that Ramaraghava Reddy had brought the suit for declaration that thealienation made by a Mahant of a deity in question culminating in compromise decree is not binding on the deity. Such a declaration was granted. The Supreme Court ruled that such a relief is a substantial relief and has immediate coercive effect. It has further ruled that the declaration of this kind falls outside the purview of Section 42 of the Specific Relief Act, 1877 and would be governed by the general provisions of the Code of Civil Procedure like Section 9 or Order VII Rule 7.

26. What is important to note is that the declaration sought for was not to the effect that an event had happened, The declaration had everything to do with a relief that could be granted or refused by a Civil Court in a suit of civil nature. The other side was denying and was interested to deny the claim of the deity represented by Ramaraghava Reddy. In the suits of the nature on hand it is impossible to imagine that either the Deputy Commissioner or the State or the Board under the Act or the Department of Education represented by the Director of Public Instructions would be interested in denying the date of birth of a person that too when such a person was not under the employment in any of the Departments of the State Government. This is one of the necessary ingredients of Section 34 of the Specific Relief Act, 1963. Hence, I have no hesitation in concluding that even to claim a declaratory decree that a Civil Court is competent to pass in a suit of civil nature, under theordinary law covered by Section 9 C.P.C. or Order VII Rule 7 C.P.C., the plaintiff has got to have legal status and what he claims should amount to a relief because of denial by a person interested to deny it being involved. In the decision in S.G, Films Exchange's case also it is seen that the aforementioned characteristics or ingredients are all present. When that is so, these decisions would not, in my opinion, be of much assistance to the plaintiff.

27. There is another aspect that has incidentally cropped up and in my considered opinion needs going into. It has been already pointed out that when a person is born, the date of birth and place of birth has to be informed to the concerned authority functioning under the Births, Deaths and Marriages Registration Act, 1896 and later on under the Registration of Births and Deaths Act, 1969. The power vested in the authorities to rectify or cancel or to make an entry when no such entry has been made due to some mishap or ignorance, has been already pointed out in paragraphs 10 and 11. Therefore, it is plain that a person who is interested either in rectification of his date of birth as found in the entry in the birth register or interested in cancellation of such an entry or interested in getting an entry made when no entry is found, has a remedy provided to him by the Rules under the Registration of Births and Deaths Act, 1969. When that is so, it is incumbent on him to pursue that remedy. If he is able to get his date of birth rectified, he would be able to get the extract of the said date of birth and proceed to pursue his remedy further. Perusal of the provisions of the Act shows that the Board under the Act is an autonomous body. There is provision in the Act for getting the marks re-totaled and the S.S.L.C. certificate corrected as per the total so obtained. There is no provision in the Act taking away the powers of the said Board which is an autonomous body in correcting its own registers or documents. Therefore, it follows that a person after securing an extract of his correct date of birth as available in the register of births, can as well approach the Board may be through the School or Institution which had forwarded his candidature for the S.S.L.C. examination and get the correct date of birth entered in the concerned registers. The apprehension to the effect that date of birth will have far more serious impact on a person at different stages in his life is not reasonable because an appropriate remedy has been provided by the said Act and the Rules and a person is at liberty to take recourse to such an action and secure his remedy. He cannot, in law, be permitted tobypass the aforementioned provisions and approach the Court directly that too with a suit fordeclaration of this nature.

28. In view of the foregoing, I hold that the suit of the plaintiff is not maintainable. Hence, I allow the appeal, set aside the judgments and decrees passed by the two Courts below and dismiss the suit of the plaintiff. No order as to costs throughout.


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