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S.SRINIVASAN versus THE SUB

High Court of Madras

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S.Srinivasan v. The Sub-Registrar - CIVIL REVISION PETITION(PD) NO. 1758 OF 2002 [2002] RD-TN 900 (20 November 2002)



IN THE HIGH COURT OF JUDICATURE AT MADRAS



DATED: 20/11/2002

CORAM

THE HONOURABLE MR.JUSTICE V.KANAGARAJ

CIVIL REVISION PETITION(PD) NO. 1758 OF 2002

AND

C.M.P.NO. 15006 OF 2002

S.Srinivasan. .. Petitioner

-Vs-

1. The Sub-Registrar,

Kelamangalam.

2. The Revenue Divisional Offi,

Hosur. .. Respondents Civil Revision Petition filed under Section 115 of C.P.C. against the Fair and Decretal order dated 4.10.2002 made unnumbered O.S.No. of 2002 by the Court of District Munsiff, Hosur as stated therein.

For petitioner : Mr.R.Singaravelan.

For respondents : Mr.S.Sivashanmugham, for

Mr.M.C.Swamy,

Special Govt.Pleader.

:O R D E R



The above Civil Revision Petition has been filed by the petitioner/plaintiff against the Fair and Decretal order dated 4.10.2002 made in unnumbered O.S.No. of 2002 by the Court of District Munsif, Hosur thereby rejecting the plaint filed by the petitioner/plaintiff.

2. The case of the petitioner is that he has filed a suit for declaration (i) that he was born on 25.10.1947 at 7.30 a.m. at Kelamangalam, Denkanikottai Taluk, Dharmapuri District and (ii) consequently direct the defendants to enter the date of birth of the plaintiff as 25.10.1947 instead of 25.10.1944 in the records maintained in the office of the defendants and confer all consequential benefits on the plaintiff on the averments that he was actually born on 25.10.1947 at Kelamangalam, Denkanikottai Taluk at about 7.30 a.m.; that his date of birth was not entered by his parents in the Birth Register maintained in the office of the first defendant due to the reasons known to them; that the plaintiff joined the service as Village Karnam, a hereditary office, at Kelamangalam on 1.11.1972 and he was in that post till 14.11.1980 the date of abolition of such posts throughout the State; that subsequently on the basis of the Government Order he was selected for the post of Village Administrative Officer and appointed.

3. The further case of the petitioner is that he joined the service on 22.7.1989; that at the time of his joining service, he gave his date of birth as 25.10.1944 at Kelamangalam as there was no record to show his real date of birth at that time; that subsequently he got a very old horoscope which was 30 years old and marked the same as an exhibit; that apart, the plaintiff also applied for the copy of the birth extract from the office of the first defendant vide his application dated 28.1.2000 and the same was returned as not traceable on 2 8.1.2000; that on the basis of the wrong date of birth, the plaintiff is likely to retire from service and the request for the correction of date of birth was rejected by the second defendant on the basis of the order of the PCCA for want of school or any other certificate; that he challenged the orders of the second defendant before the Tamil Nadu Administrative Tribunal, Chennai and the orders of the PCCA Chennai on the basis of which the second defendant had passed an order which was not served on the plaintiff. On such averments plaintiff would pray for the relief extracted supra.

4. The Court of District Munsif, in consideration of the facts pleaded by the plaintiff and upon hearing the learned counsel for the plaintiff, has arrived at the conclusion that the suit for declaration of age or date of birth could be maintained if the relief claimed does not relate to his conditions of service; that the said Court has also come to the conclusion that the Court of District Munsif had no jurisdiction to entertain the suit and ultimately rejected the plaint filed by the petitioner herein, by the order dated 4.10.2002. Aggrieved by the said fair and decretal order, the plaintiff has come forward to file the above Civil Revision Petition on certain grounds as put-forth in the grounds of Civil Revision Petition.

5. During arguments, the learned counsel appearing on behalf of the revision petitioner would submit that it is a case of rejection of the plaint; that he was out of service from 1990 to 1995; that on 18.11 .1989, he was appointed temporary Village Administrative Officer on the basis of his previous service and in his service book and the school records wherein it has been entered as though he was born on 25.10 .1944; that by order dated 18.6.1999 his probation was completed as per the orders passed by the District Collector Dharmapuri; that under Rule 49 of the General Rules of Tamil Nadu State Subordinate Services Rules it is contemplated that the date of birth of a Government servant could be altered within five years of his entry into service and that the procedure prescribed in Government letter dated 3.3.197 9 read 'applications for alteration of date of birth should be sent to Special Commissioner C.R.A. through the departmental authorities only’. Based on these rules the lower Court rejected the plaint.

6. The learned counsel would cite also a judgment reported in CHAUBE JAGDISH PRASAD AND ANOTHER v. GANGA PRASAD CHATURVEDI (A.I.R.1959 SC 492) wherein it is held that 'Section 115 Civil Procedure Code empowers the High Court in cases where no appeal lies to satisfy itself on three matters: (a) that the order made by the subordinate Court is within its jurisdiction; (b) that the case is one in which the Court ought to exercise its jurisdiction and (c) that in exercising the jurisdiction the Court has not acted illegally.'

7. The second judgment cited is one from the case PANDURANG DHONDI CHOUGULE AND OTHERS v. MARUTI HARI JADHAV AND OTHERS reported in AIR 1 966 SC 153 wherein it is held:

"The High Court cannot while exercising its jurisdiction under S.115, correct errors of fact, however gross they may be, or even errors of law. It can only do so when the said errors have relation to the jurisdiction of the Court to try the dispute itself. It is only in cases where the Subordinate Court has exercised a jurisdiction not vested in it by law, or has failed to exercise a jurisdiction so vested, or has acted in the exercise of its jurisdiction illegally or with material irregularity that the reversional jurisdiction of the High Court can be properly invoked."

8. The third judgment cited by the learned counsel is one reported in MAGNLAL CHHOTABHAI DESAI v. CHANDRAKANT MOTILAL (AIR 1969 SC 37) It is a case wherein in a suit filed by landlord against tenant for possession, arrears of rent and mesne profits and a decree passed in such suit, the Court gave direction that the landlord do render account of overpayments made to him thus, acting illegally and with material irregularity in such case the Hon’ble Apex Court held in the above judgment:

"High Court has full power to revise the decree under Section 115 and give such direction in the matter as it thinks fit."

9. The next judgment cited by the petitioner is one reported in TITAGARH JUTE FACTORY CO. LIMITED v. SRIRAM TIWARI (1979-I L.L.J.495) wherein dealing with a question of determining the age of a workman particularly when he disputes notice of superannuation and whether a suit filed in a civil court is maintainable or should he recourse to forum under I.D. Act, a learned single judge of the Calcutta High Court has held: “since the right accrues to workman under the general law, suit in civil Court is maintainable; more so, as the Industrial Disputes Act does not bar a remedy -- where both civil and industrial remedies are available it is open to the employee to choose either of them.”

10. The next judgment cited by the petitioner is one reported in K.MAHADEVA SASTRY v. DIRECTOR, POST GRADUATE CENTRE, ANANTAPUR (AIR 198 2 ANDHRA PRADESH 176)wherein a Division Bench of the Andhra Pradesh High Court in a decree declaring the correct date of birth of the plaintiff/employee has held:

“the defendant employer public authority cannot ignore decree on ground of absence of direction for rectification of service record.”

11. The next case cited by the petitioner is one reported in MAITREYEE BANERJEE v. PRABIR KUMAR MUKHERJEE (AIR 1982 SC 17) wherein the Hon’be Apex Court has held:

“The High Court in its power of revision ought not to have interfered in a case like this as no jurisdictional error was involved.”

12. The other case cited by the petitioner is one from the Division Bench of the Karnataka High Court reported in STATE OF KARNATAKA AND ANOTHER v. T.SRINIVAS (AIR 1988 KARNATAKA 67) wherein it has been held: “declaration of a persons’s age is declaration of his status and that the jurisdiction of the Civil Court is not ousted either expressly or impliedly by the provisions of the Registration of Births and Deaths Act and the Rules framed thereunder.”

On such grounds, the learned counsel for the petitioner would pray to allow the Civil Revision Petition setting aside the order of rejection of the plaint made by the trial Court.

13. In reply, the learned counsel appearing on behalf of the respondent would cite Section 2.2 of the C.P.C. which reads: “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 maybe 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.”

The learned counsel for the respondent would also cite a judgment reported in 1996 I C.T.C.176 which has been rendered following the AIR 1 973 SC 2384 wherein it is held:

“that against an order rejecting the plaint only an appeal will lie and not a revision.”

14. The learned counsel would also cite Order XLIII Rule 1(a) of C. P.C. in confirmation of his argument that on rejection of a plaint or returning of a plaint only an appeal shall lie and not a revision as it has been resorted to by the petitioner herein. On these arguments, the learned counsel for the respondent would pray to dismiss the above Civil Revision Petition.

15. In consideration of the facts pleaded, having regard to the materials placed on record and upon hearing the learned counsel for both, needless to mention that it is a case of rejection of the plaint by the lower Court on grounds that (i) as per Rule 49 of the General Rules of Tamil Nadu State and Subordinate Services Rules in Service Manual Volume I “ the date of birth of a Government Servant can be altered within five years of entry into service.”

(ii) the procedure for such alteration has been prescribed in Government letter No.30285/78-7 P&AR dated 3.3.1979 that: “applications for alteration of date of birth should be sent to Special Commissioner C.R.A. through the departmental authorities only.”

Citing the above two rules the lower Court would also cite the ruling of the Hon’ble Apex Court in STATE OF KARNATAKA v. T.SRINIVAS reported in 1987(2) SCC 965 = AIR 1988 KARNATAKA 67 wherein it is held: “that a suit for declaration of age or date of birth could be maintained if the relief claimed does not relate to his conditions of service.”

16. Citing the above judgment, the lower Court commenting that it has no jurisdiction to entertain the suit would end up rejecting the plaint, against which the petitioner has come forward to file the above Civil Revision Petition on certain grounds as brought-forth in the grounds of revision that the suit has been filed by the petitioner as the plaintiff therein praying for a decree (i) that he was born on 2 5.10.1947 at 7.30 a.m. at Kelamangalam, Denkanikottai Taluk, Dharmapuri District and (ii) consequently to direct the defendants to enter the date of birth of the plaintiff as 25.10.1947 instead of 25.10.19 44 in the records maintained in the office of the defendants and confer all consequential benefits on the plaintiff.

17. The two questions that are to be answered at the outer periphery of the subject pertaining to the plaint which was rejected by the lower Court are:

(i) Whether a Government Servant, within the meaning of the letter cited dated 3.3.1979 and the judgment of the Apex Court cited supra could file a suit for declaration or alteration of his age before the Civil Court and whether such a suit filed by the Government Servant, without exhausting the procedures prescribed in the Government letter dated 3.3.1979 cited supra, particularly for determination or alteration of the date of birth would lie in the Civil Court?

(ii) If the suit had not been filed within five years of the petitioner entering service as per Rule 49 of General Rules of Tamil Nadu State and Subordinate Services Rules where-under the date of birth of the Government Servant could be altered within five years of the entry into service, the petitioner being one covered under the said rule whether the suit filed would lie before the lower Court?

18. So far as the second question is concerned, on facts, the petitioner has to justify on this ground under which the lower Court rejected the plaint since at the time of filing the suit he has completed the service of five years and therefore, the petitioner is not eligible to file the suit at this score. According to the petitioner, since his probation was declared only in the year 1999, the lower Court cannot take it for granted that he had completed the service of five years as a Government Servant and on that score rejecting the plaint is erroneous.

19. On the contrary, on admission of the suit, the lower Court shall frame a preliminary issue to decide such questions prior to settling the other issues involved in the case and therefore, without an opportunity for the petitioner to contest that point or issue that he had crossed five years of service as a Government and rejecting the plaint on that score is nothing but erroneous.

20. Coming to the second point, there is no doubt within the meaning of the judgment of the Apex Court that a suit for declaration of the age on the date of birth of a Government Servant, could be maintained if the relief claimed does not relate to his conditions of service. The Government letter No.30285/78-7 P&AR dated 3.3.1979 according to the lower Court contemplates “applications for alteration of date of birth should be sent to Special Commissioner C.R.A. through the departmental authorities only.”

21. From the wordings of the Government letter in the light of the judgment of the Apex Court cited supra, since the service conditions are such that the petitioner cannot all of a sudden jump to filing the suit without resorting to the conditions of service which lay down certain procedures to be followed before the Governmental authority the Special Commissioner and Commissioner for Revenue Administration, having forwarded the application for determination of the age, date of birth or alteration of the date of birth of a Government Servant and on a decision taken by the said authority, only then as the last resort the Government Servants like the petitioner can resort to the legal remedy before a court of Civil Forum and while such effective alternative remedy is made available by the procedures established therein in the department, the petitioner has no right in surpassing the procedures and hence under this score the lower Court is right in rejecting the plaint.

22. Yet another legal point that has to be decided at this juncture is that on rejection of the plaint whether a Civil Revision Petition as it is resorted to on the part of the petitioner herein would lie under Section 115 of C.P.C. or a regular appeal as it is contemplated by law? Whereas under Section 2.2 and under Order XLIII Rule (i) C. P.C. it is quite clear that on rejection of a plaint only an appeal would lie which needs no explanation and therefore, needless to mention that at this score also a Civil Revision Petition as it has been filed on the part of the petitioner before this Court cannot be maintained which is irregular and illegal. In result,

(i) for the reasons aforementioned, the above Civil Revision Petition does not merit acceptance and the same is dismissed as such; (ii) No costs.

gr.

Index:Yes.

Internet:Yes.

To

The District Munsif, Hosur.

((SCO LYRIX 6.1

))


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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