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Commissioner of Income-tax and ors. Vs. M. Ramalingam and anr. - Court Judgment

LegalCrystal Citation
SubjectService;Limitation
CourtChennai High Court
Decided On
Reported in(1979)2MLJ327
AppellantCommissioner of Income-tax and ors.
RespondentM. Ramalingam and anr.
Cases ReferredState of Assam v. D. P. Deka A.I.R.
Excerpt:
- .....is filed for a declaration of correct date of birth and for a further relief to have the date of birth corrected in the records of the appellant by a mandatory injunction, and therefore under the facts and circumstances of this case, the starting point for computing the period of limitation wilt be only after the entry relating to the date of birth in the s.s.l.c. book is corrected, and not from the date when the order under exhibit a-9 was made by the president of india. he forcefully pleads that in this case, there could be no question of computing the period of limitation, because at any time a citizen of this country can file a suit for declaration in a civil court about his date of birth, which is precisely what the first respondent has asked for in paragraph 9(a) of the plaint......
Judgment:

T. Sathiadev, J.

1. This second appeal was admitted on two substantial questions of law which have been framed as follows:

1. Whether the suit instituted on the foot that a fresh cause of action arose on the date when the notice under Section 80, Civil Procedure Code, was given is right or whether the cause of action is de die in diem and whether the presently instituted action need not take cognizance of the rejection order made by the authorities under Exhibit A-9 as early as in 1962.

2. Whether the suit is barred by limitation.

2. Let us take the second point as the main point since, if the suit is barred by limitation then the other aspects do not come up for consideration. The first defendant surprisingly had not taken up the plea of limitation in the written statement and therefore, the trial Court did not frame any issue regarding limitation. After the appeal was filed, C.M. P. No. 86-A of 1978 was filed for raising the additional ground regarding limitation and therefore the Lower Appellate Court had considered the aspect of limitation as point No. 5 and came to the conclusion that the suit has been laid without any laches on the part of the plaintiff. The Lower Appellate Court had approached this point by relying on Exhibit A-10, the suit notice issued by the plaintiff under Section 80, Civil Procedure Code, and the reply sent by the second defendant under Exhibit A-14, dated 21st June, 1975. The 1st defendant who is the appellant herein, had not even cared to reply to Section 80, Civil Procedure Code, notice. In the view of the Lower Appellate Court, the cause of action arose only after the issue of Section 80, Civil Procedure Code notice. But it had not referred to any of the decisions of this Court or those of the Supreme Court for arriving at this conclusion. It does not even state on what ground the notice issued under Section 80, Civil Procedure Code can give rise to a cause of action. If the issue of such a notice is to be the starting point for the commencement of the period of limitation, then there being no bar, the issue of repeated Section 80, Civil Procedure Code, notice a party corning to Court can, on his own volition, decide about the starting point of limitation and then institute the suit. It is ununder-standable as to how the Lower Appellate Court could have taken the issue of Section 80, Civil Procedure Code, notice, as the starting point for computing limitation. It does not even refer to the relevant Article in the Limitation Act which would be applicable to this case, except to refer to the contention of the appellant that the suit is barred by limitation tinder Article 58 of the Limitation Act or Article 113 of the said Act. Even the counsel appearing in this matter, did not consider it worth while to take the time of this Court to support the conclusion arrived at by the Lower Appellate Court which on the face of it, is perverse. Therefore the only ground that has been relied upon for computing the period of limitation having failed it has to be seen whether the suit that has been filed by the, first respondent herein is within the period of limitation, as contemplated under the Limitation Act or not.

3. The counsel for the appellant would state that the suit itself being one for declaration, it will have to come, either under Article 58 or Article 113 of the Limitation Act, and not under any other Articles. The period of limitation is only three years under both the Articles. The only difference between the two Articles is as follows:

Article 58,--The starting point for limitation will be 'when the right to sue first accrues.

Article 113.--It will be 'when the right to sue accrues.

It is therefore contended that in this matter, the starting point for limitation will be the date when the President of India under Exhibit A-9 rejected the memorial filed by the petitioner on 16th October, 1962, and therefore the suit which was filed on 24th July, 1975, is clearly barred by limitation. His further contention is that, under the statutory rules the first respondent cannot on the eve of his retirement seek to have his date of birth altered, and it is only the competent authority constituted under the Rules, who can take the final decision, and in this matter such a decision having been arrived at as early as 1962, the first respondent cannot by filing the present suit ask, for a mandatory direction for changing the date of birth in the records of the appellant, merely because the second defendant had corrected the Secondary School Leaving Certificate Book, consequent to the decree passed by the trial Court.

4. The counsel for the first respondent contends that the suit is filed for a declaration of correct date of birth and for a further relief to have the date of birth corrected in the records of the appellant by a mandatory injunction, and therefore under the facts and circumstances of this case, the starting point for computing the period of limitation wilt be only after the entry relating to the date of birth in the S.S.L.C. Book is corrected, and not from the date when the order under Exhibit A-9 was made by the President of India. He forcefully pleads that in this case, there could be no question of computing the period of limitation, because at any time a citizen of this country can file a suit for declaration in a civil Court about his date of birth, which is precisely what the first respondent has asked for in paragraph 9(A) of the plaint. If such relief is granted, nothing prevents him from asking for a coo-sequential relief for altering the date of birth in the records of the appellant, which should contain only the correct date of birth and not any other wrong entry. He emphasises the fact that his client is not concerned with the order made under Exhibit A-9 and the mandatory injunction asked for is only to enforce what is presently found in the S.S. L.C. Book and not to the original entry which was found therein before the trial Court decreed the suit, and therefore the cause of action arose only after the S.S.L.C. Book was corrected and in this view, the suit is filed well within time. Whatever, his client was agitating earlier was based on a different cause of action and based on the original entries in the S.S.L.C. Book, and what is presently agitated in the suit is for changing the entry in the S.S.L.C. Book and that, once such a change is effected the appellant is bound to enter the correct date of birth in the service register, and it cannot be different from what is found in the S.S.L.C. Book.

5. To appreciate the respective contentions, it will be relevant to briefly deal with the circumstances which led to the filing of the present suit. The 1st respondent claims that he was born on 10th January, 1922 and not on the date entered in Exhibit A-2. On the basis of the entry found in the S.S.L.C. Book, the relevent entries in his service register were made when he joined the Defence Department and later on the Income-tax Department. It was claimed by him that it was after his father's death on 16th March, 1959, when he had gone to his native place for conducting the obsequies ceremonies, he chanced to come across the horoscope book maintained by his father and at that time he realised that his correct date of birth is 10th January, 1922 and not 15th June, 1920 as entered in the Service records maintained by the appellant. Therefore he promptly took steps to address the concerned authorities to have the entries corrected. He filed Exhibit A-6, a copy of the petition which was rejected under Exhibit A-7. Thereafter he filed Exhibit A-8 on 26th June, 1962, to the President of India and it was rejected under Exhibit A-9 on 16th October, 1962. Thereafter he issued Section 80, Civil Procedure Code notice under Exhibit A-10 on 1st May, 1975 and filed the suit on 24th July, 1975. In the plaint, it was pleaded that though he was born on 10th January, 1922, the person who informed the concerned authorities for making entries in the birth extract (Birth Register) had erroneously furnished it as 13th January, 1922, and therefore the entry found in the birth register extract, Exhibit A-1 cannot be acted upon. He further pleads that his father was an illiterate person and he had not intentionally given a wrong information to the school authorities for benefiting him in any manner either for the completion of his S.S.L.C. or for any other purpose. Therefore the genuine mistake deserves to be corrected.

6. The appellant in the written statement had taken up the stand that the first defendant is bound by the Rules and Regulations covering his service conditions, and once the date of birth is entered, it cannot be corrected except for clerical mistakes and that too just at the time on the eve of his retirement.

7. The contention of the appellant is that in this case, Article 113 of the Limitation Act will be applicable, because the suit is filed not only for a bare declaration, but also for a consequential mandatory injunction. Article 113 of the Limitation Act is the residuary Article and the period of limitation is prescribed as three years, which would begin from the date when the right to sue accrues. This Article will apply to declaratory suits not falling within any of the Articles 56, 57 and 58 and 108 of the Limitation Act, which specifically provide for certain classes of declaratory suits. Article 58 of the Limitation Act will apply only to a suit which is for a 'declaration simpliciter', and not to a; suit in which other reliefs are also asked for. It cannot be said that the first respondent is resting content with getting a bare declaration, as prayed for in paragraph 9(a) of the plaint. He also seeks correction of the date of birth in the S.S.L.C. Book for which he has impleaded the second respondent, and also to change the date of birth in the registers of the appellant, and to continue him in service till the date of superannuation i.e., 10th January, 1980. It is therefore contended that when the first respondent failed to get any remedy by invoking the statutory procedure, the right to sue has accrued in him soon after the order was made under Exhibit A-9, and this suit should have been filed within 3 years from that date. Yet another contention taken is, the cause of action is the same which he had pleaded before the Departmental Authorities, and what he has failed to get from the Departmental Authorities, is now sought to be secured by filing the present suit.

8. As already stated, the counsel for the first respondent had pleaded that there could be no period of limitation, and even if a period is to be computed, in could be only from the date when the S.S.L.C., certificate had been corrected by the second respondent herein and what is now sought for is only to have a mandatory injunction on the basis of the correct entry and it has no relevance to the original entry which alone was agitated before the Departmental Authorities.

9. Therefore the essential aspect which is to be looked at, is to find out what was the cause of action that was agitated in the suit, and what was sought to be achieved by asking for mandatory injunction as against the appellant. This could be appreciated and understood only by relying on the plaint and the evidence tendered by the plaintiff. In the plaint in paragraph 5, after referring to the rejection of the petition filed by the first respondent to the President of India, it is stated as follows:

They categorically say that it is too late to do anything in the matter. The plaintiff has waited for a long time that justice will be meted out to him by his department but finding that it would not be had and that Courts alone are- competent to rectify1 this innocent and apparent, mistake the plaintiff issued notices under Section 80, Civil Procedure Code to his Department....

In the cause of action paragraph, he states that the cause of action arose in 1959 when the plaintiff looked into old, records left by his father, the old horoscope book in particular and on and from 1960 onwards when he went on submiting petitions to the authorities concerned and subsequently also. In paragraph 9 he had asked for a mandatory injunction by way of suitable directions to the Central Government and the Director of School Education, Madras to alter his date of birth to 10th January, 1922 and permit him to continue in service till 10th January, 1980. In his deposition, he had stated as follows:

I have filed the suit for declaration of my age.

I have also prayed for a direction to the Government to alter my age.

I have exhausted all my remedies by sending applications to the authorities. Only thereafter I have come to this Court.' Therefore this is not a case where he seeks for a bare declaration about his date of birth as contended by the first respondent's counsel and which any citizen can at any time move a civil Court for a bare declaration about his date of birth. But, when he asks for a consequential mandatory injunction with reference to the date of birth, it is then to be seen whether the cause of action to sue had already arisen or not. It is here that the first respondent's counsel pleads that in this case, there is no scope for computing the period of limitation, because it can arise only after the S.S.L.C. Book is corrected. But this contention cannot be accepted, because the firm case of the plaintiff is that, having failed before the statutory authorities, he realised 'that Courts alone are competent to rectify this innocent and apparent mistake,' and therefore he issued a notice under Section 80, Civil Procedure Code. This categorical admission in the plaint shows that the suit has been instituted mainly for getting over the order passed under Exhibit A-9. He had not asked for setting aside the said order. But he himself states that the cause of action arose in 1959, and 'on and from 1960 onwards when he went on submitting petitions to the authorities concerned'. I have already referred to Ms evidence wherein he had stated that he has been agitating this matter from 1959 and after exhausting all his remedies, only thereafter he has come to this Court. Therefore his right to sue for altering the date of birth is traced by him to the order of rejection made in Exhibit A-9 and to the earlier orders passed by his Department. Having thus framed his plaint, it is not open to him at this stage to plead that' the cause of action arose only after the suit was decreed by the trial Court and the S.S.L.C. Book was corrected by the second respondent herein. It should not be forgotten that the second respondent herein also had refused to correct the entries at his request, and the S.S.L.C. Book was corrected only after the suit was decreed. Hence, at the time when the suit was filed on 24th July, 1975, there was no question of his resting his claim on such a cause of action, i.e., corrected entry.' It could have been only on the basis of what is found in Exhibit A-3, the horoscope.

10. The counsel for the first respondent on this point contends that the original entry, whenever corrected, the appellant is then bound to carry out the consequential corrections in the service register or service records. His contention is based on the fact that the original entry in the service records was made only on the basis of the S.S.L.C. Book, and as soon as the S.S.L.C. Book is corrected, the first respondent will be entitled to a mandatory injunction, as prayed for.

11. Here again the fallacy which. I have referred to above, sets in, because when he filed the suit, the S.S.L.C. Book contained only the original entry. Secondly the corrected entry cannot be taken as the basic factor, because it only carries the date of birth which is found in Exhibit A-3, the horoscope, which according to the plaintiff shows the correct date of birth. Rather what would be relevant, will only be the correct date of birth, and what is found in the S.S.L.C. Book is only a consequential, entry, which is acted upon by authorities for purposes of convenience. The suit is decreed, not on the basis of the S.S.L.C. Book, but on proof of the correct date of birth, on the strength of the entries found in Exhibit A-3. Therefore, if at all a contention is to be raised that the basic document should be acted upon, it could only be referable to Exhibit A-3 and not to Exhibit A-2, the S.S.L.C. Book, as now corrected.

12. The next question is whether the cause of action arose only after the S.S.L.C. Book is corrected and subsequent to the decree having been passed by the trial Court. The plaintiff himself in unmistakable terms has pleaded that the cause of action had arisen even as early as 1959 and. thereafter in 1960 onwards when the authorities rejected his petitions and it is only thereafter that he had instituted the suit realising that Courts alone can rectify the mistake. In this matter, the cause of action is based, according to the plaintiff, as soon as he chanced to come across Exhibit A-3 horoscope book for the first time in 1959, soon after the death of his father. Here again, it will be noticed that he had come across this horoscope book even at the time of his marriage and well before he had entered the service. He admits in his evidence that 'I had seen my horoscope at the time of my marriage, but I did not at all notice the difference in age. Courts below have come to the conclusion that at the time of marriage only the planetary positions must have been looked at and therefore the explanation offered by the first respondent is acceptable. While admitting the second appeal, the learned Chief Justice had stated that 'I may also note that the findings being concurrent findings of fact are not challenged, nor can they be challenged in second appeal'. Therefore I am not going into the question of assessing his evidence and whether the Courts below were correct in accepting his contention in spite of the admission made by him that even at the time of his marriage he had seen the horoscope book. Yet it is the case of the 1st respondent himself that in 1959 he had seen the horoscope book and it is on the basis of Exhibit A-3, he had asked for alteration of date of birth before the statutory authorities, and it is only on that basic document, he had instituted the suit. As could be seen, the birth extract Exhibit A-1 should have been normally acted upon. But according to the plaintiff, here again there was a wrong entry. He does not want to rely on Exhibit A-l, but rests upon Exhibit A-3, and which has been acted upon, by the Courts below, as a genuine document. Therefore the basic document can be only Exhibit A-3 and what is found therein is sought to be incorporated in Exhibit A-2, the S.S.L.C. Book, which would only be a consequential entry. Hence I reject the contention of the counsel of the first respondent, that the corrected entry in the S.S.L.C. Book should be taken as a basic document. In this suit, his entire claim is based on Exhibit A-3 and on his oral evidence. Therefore the cause of action for the purpose of suing for the relief of declaration arises as soon as his request before the Statutory authorities was rejected. It is needless to repeat the relevant extract in the plaint wherein he had himself stated that after realising that the Courts alone are competent to rectify this innocent and apparent mistake, he issued a notice under Section 80, Civil Procedure Code, to his Department and the second respondent herein. Hence, his right to sue accrued as on 16th October, 1962, and the present suit ought to have been laid within three years from that date under Article 113 of the Limitation Act. Even if for any reason, it has to be taken that Article 58 will be applicable, it can make no difference because the starting point in this case will be the same and the period within which the suit is to be filed being only three years, the suit filed in 1975 is barred by limitation.

13. The first respondent's counsel contended that there can be no period of limitation for a suit of this nature and even if it is so, the period can start only from the date after the S.S.L.C. Book entry was corrected. No other Articles of Limitation Act was referred to before me to plead that the suit is well within the period of limitation.

14. Hence, it is clear that the first respondent had pleaded in the plaint that the cause of action is nothing different from what he had failed to get before the Departmental Authorities, and it is to rectify the date of birth found in the records of the appellant, and which was refused to be corrected, he had instituted the suit not only for a mandatory injunction for correcting the date of birth, but also to permit him to continue in service till 10th January, 1980 and therefore the right to institute the suit arose as soon as the order under Exhibit A-9 was passed on 16th October, 1962 and the suit filed after nearly 13 years on 24th July, 1975, is hopelessly barred by limitation under Article 113 of the Limitation Act.

15. Since on the aspect of limitation it has been found that the suit is barred by limitation, it is not necessary to go into the other aspects of the matter and the second appeal itself having been admitted only on two substantial questions of law, I do not think it necessary to deal with any other point. For the purpose of completion, I proceed to consider the other point which incidentally touches upon the aspect of limitation. The lower Appellate Court has held that the period of limitation will start when Section 80, Civil Procedure Code, notice was issued. I have already held that the Appellate Court had not rested its conclusion on the basis of any established decision and the counsel appearing before me does not even consider it worthwhile to rest upon the conclusion arrived at by the lower Appellate Court. On the other aspect as to whether the presently instituted action need not have taken cognizance of the rejection order made under Exhibit A-9, I have held, for the reasons above stated, under the point relating to limitation that, since the first respondent in the plaint and in his deposition had sought for relief which he could not get under Exhibit A-9, there can be no question of the first respondent now taking up the stand that the action taken in 1962 need not be taken cognizance in this proceeding. Hence, on this point as well, it has to be held that Section 80, Civil Procedure Code, notice issued on 1st May, 1975 cannot give rise to a fresh cause of action and that the first respondent by instituting the present suit, has sought to make the order passed under Exhibit A-9 ineffective and therefore it is relevant for the purpose of the present proceedings.

16. During the course of lengthy hearings, counsel for the appellant had referred to the relevant' statutory rules and regulations and also about the finality of the decision arrived at by the statutory auhorities regarding alteration of the date of birth and that a civil servant cannot seek a revision of the date of birth just at or about the time of his superannuation.

17. The learned Counsel for the first respondent relies upon the decision rendered in V. G. Ray v. South Eastern Railway 1969 L. I.C. 1017 and pleads that the appellant having been made a party to the proceedings, irrespective of whatever may be provided under the Service Rules, the appellant is bound by a decree of a civil Court and must carry out consequential changes in the service records. In the said decision, which arose under Article 226 of the Constitution of India, it was held that since the Railway Board was not made a party, it cannot be compelled to alter the date of birth. It has been observed therein that if the Railway had been made a party defendant, the respondents would have been bound, under the general law, to give effect to the inter-parties judgment, irrespective of what was provided for in the Service Rules. Based on this observation it is contended that the appellant and the second respondent having been impleaded as parties to the proceedings, the first respondent can ask for revision of the date of birth even though the Service Rules may not approve of an alteration being effected at this distance of time. In view of the finding given by me that the suit is barred by limitation, it is not necessary to deal with the scope of the Rules which are referred to in the judgment of the Court below and as to whether a civil Court can issue a mandatory direction for alteration of the date of birth or to the following decisions cited by him. Mohd. Yunus v. Syed Unnissa : [1962]1SCR67 Mst. Rukh-mabai v. Lala LaxmInarayanan : [1960]2SCR253 Amar Chand v. Union of India : [1973]2SCR684 State of Assam v. D. P. Deka A.I.R. 1971 S.C. 1973

18. In the result, the second appeal is allowed. The decrees and judgments of the Lower Appellate Court and that of the Trial Court are set aside and the suit is dismissed as barred by limitation. No costs.


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