J & K Board of School Education vs Janak Singh

Sharma, J.—This Civil Second Appeal arising out of the decree and judgment of the 1st Additional District Judge, Jammu was heard by

Nazki J. (as his Lordship then was who by his order dated 06021995 made the following reference:

.....There is a growing trend that Government servants at the fag end of their service career try to use the process of law for getting their dates of

birth changed and this has assumed importance. Therefore, I refer this Civil Second Appeal for decision to a Division Bench of this court, so that

the subordinate courts in the State have an authoritative pronouncement on the issues involved. The Additional Registrar will place the file before

the Hon'ble the Chief Justice for constitution of a proper Bench.

A Civil Second Appeal under S102 of the Code of Civil Procedure lies only on a substantial question of law and if that be so as it really is, the

decision on that question if decided by this court, shall be the law until reversed by a superior court. So the reference as such was not necessary .

The facts giving rise to this appeal are that the plaintiff (respondent herein) instituted a suit for declaration to the effect that his actual date of birth

was 25442 and not 2541938, as entered in his Matriculation certificate and service record. Though number of issues came to be framed by the

trial court, but the judgment and decree has been challenged mainly on the ground that the suit was barred by limitations and the finding of the trial

court as also the 1st Appellate court on issue No:3 is erroneous. While returning the finding on issue No:3, the trial court (SubJudge, Judge) held

as under:

When the plaintiff came to know about the mistake in the date of birth as entered in the Matriculation certificate he immediately approached the

authorities for correction. As no action was taken by them he waited and ultimately served notice u/ s 80 of CPC requesting for correction failing

which he shall file civil suit. He served notice on 571985 and the cause of action accrued to him as no action on it was taken by the defendants at

his request. This suit was filed on 7101985 which is well within time. Immediately after coming to know about wrong entry in 1956, the plaintiff

applied for correction. Matter remained hanging on fire and finally when he was not informed of action taken by defendant he sent notice u/s 80

CPC on 5785 which was also not replied and so suit was presented on 71085 which is perfectly within time.......

We find the learned SubJudge, Jammu has failed to apply the law even after admitting that the plaintiff came to know about the wrong entry of

his date of birth in the year 1956. By doing so, he has ignored the mandate of Article 67 of the Limitation Act, which reads as under:

Description Period of Time from which of suit: Limitation; period begins to run

For relief on Three years, when the

mistake

the ground of became known to the mistake, plaintiff.

It appears, the learned SubJudge did not take the trouble of looking into this provision and the 1st Addl. District Judge, Jammu also committed the

same error. The plaintiff having admitted that he got knowledge of wrong entry of his date of birth in the year 1956, the limitation for filing the suit

being only three years, it could not have been filed almost thirty years thereafter. The trial court as well as the first appellate court, it appears, had

no clear idea as to what the cause of action means.

While dealing with a similar question, one of us (Sharma J) in J and K Board of School Education V/S Syed Mohd Afzal Shah, Civil second

appeal No. 1 of 1997, relying on the judgment of the apex court, held as under:

.....In State of Punjab and others V/S Gurdev Singh and Ashok Kumar,AIR 1992 SCI 11, it has been held

.....The word ""right to sue

ordinarily mean the right to seek relief by means of legal proceedings. Generally, the right to sue accrues only when the cause of action arises, that

is, the right to prosecute to obtain relief by legal means. The suit must be instituted when the right asserted in the suit is infringed or when there is

clear and unequivocal against whom the suit is instituted.....

But the cause of action in this case arose when the mistake was discovered by the plaintiff and applied for the correction of the School record. He

has pleaded that on 31.7.1957 he submitted representation to the Inspector of Schools Kashmir for correction of his date of birth in the record of

the School. So the mistake in recording the date of birth on his own showing become known to him on this date it not earlier.

Since the relief is founded on the ground of mistake din recording the date of birth, the cause of action arose when the mistake became known. So

the cause of action arose in July 1957 and not when the of Superannuation was notified or rejection of his representation for correction...

So it is not the date of serving the notice under section 80 of the code of civil procedure or the refusal on the part of the defendant ( appellant

herein) to acknowledge the same, but the date when the mistake became known to the plaintiff that will furnish the cause of action or the right to

sue. A similar view was expressed by a learned Single Bench of this court in J and K Board of School Education V/S Mohd Shareef, 1994 K.L.J.

It is a settled law that the period of limitation seek any relief on the ground of mistake will be three years from the date the mistake becomes

known to the plaintiff. Since the plaintiff has in his statement made before the trial court admitted that the mistake became known to him in 1956,

the suit which he filed in 1985 was hopelessly barred and could not be entertained.

Their Lordships of the apex court in Union of India V/S Harnam Singh (1993) SCC 162 have held that the courts cannot come to the aid of

those who sleep over their rights and allow the period of limitation to expire by holding as under :

Law of limitation may operate harshly, bujt is has to be applied with all the rigour and the hours cannot come to the aid of those who sleep over

their rights and allow the period of limitation to expire.

Besides, both the courts below have filed to consider the requirement of Order VII Rule l(e) which mandates that paint shall contain "" The facts

constituting the cause of action and when it arose"". Since the plaintiff has himself admitted that the mistake became known to him in 1956, it was

for the trial court to find out4he period of limitation with which he could institute the suit. He decided it without reference to any provision of law

and the 1st appellate court also failed to notice the legal infirmity while confirming the decree. We find that both the courts have failed to inform

them selves of the law of pleadings, particularly order VII of the Code of civil procedure and law of limitation. However, even in the absence of an

admission, as noticed above, in all such suits it is obligatory for the courts to examine and consider as to when the mistake about the date of birth

became known to the plaintiff. For this apart, the year of passing the Matriculation even and receipt of Matriculation certificate, the year of

recruitment or joining service is very important and a crucial fact to determine the cause of action or right to sue. It needs hardly to be dated that on

receipt of Matriculation certificate, a person comes to know about the date of birth recorded therein. Since a minimum age is prescribed for

recruitment in service, a person seeking employment has to state his date of birth in his application for appointment. Not only this, soon after joining

service he has to furnish authentic proof of his date of birth is entered in his service record (service look). These being the requirements of Service

rules, cause of action or right to sue arises as soon as he furnishes the date of birth in the application for the post, but in no case later then he joins

service on being appointed and the time shall run from the said date and not from any posterior date whatever be the explanation. This has been

laid down by ,the apex court in Bum Standard Company Ltd Vs. Dina Bandhu Majumdar, (1995)4 SCC 172, observing that:

When a person seeks employment, he impliedly agrees with the term and the conditions on which employment is offered. For every post in the

service of the Government or any other instumentally there is the minimum age of entry prescribed depending on the functional requirements of the

post. In order of verify that the person concerned is not below that prescribed age he is required to disclose his date of birth. The date of birth is

verified and if found to be correct is entered in the service record. It is ordinarily presumed that that birth date disclose by the incumbent is

accurate. The situation then is that the incumbent gives the date of birth and the employer excepts it as true and accurate before it is entered in the

service record. This entry in service record made on the basis of the employees statement cannot be changed unilaterally at the sweet will of the

employee except in the manner permitted by service conditions or the relevant rules.....

Whether service conditions of the relevant rules permit change of date of birth is not the concern of a civil court deciding a suit, the maintainability

of which depends upon the question as to when did the cause of action arise. Therefore, the civil court has of necessary to examine as to when the

'inistake about the date of birth became known which alone will determine when the cause of action or right to sue across. This can be discerned

by reading the averments made in the plaint with reference to the requirements orders 6 and 7 of the code of civil procedure. Even where the

pleadings are deficient with regard to the facts constituting cause of action, the court has ample power either to ask for better statement and better

particulars or to examine the plaintiff with reference to any material question relating to the cause of action. Once the procedure laid down in the

code is observed, much of the delay in deciding such cases can be curtailed. This will go a long way to save time and substance of the parties.

Here, we find that neither the trial court nor the 1st appellate court was clear as to what constitutes a cause of action. It is because of this that

the suit has been decreed even though it was clearly barred by time. In view of the above, the appeal is allowed, the judgment and decree

impugned siteaside and the suit of the plaintiff dismissed with costs, both here and below.

Registrar of the court is directed to circulate the judgment among all the judicial officers requiring them to acknowledge it personally.