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Judgment
This appeal is being decided on the limited substantial question of law formulated in paral(g) of the memorandum of appeal relating to the
limitation aspect of the suit filed by the respondent and the interpretation to be given to Article 67 to the Schedule of Limitation Act and section 3
of Limitation Act. The question of law formulated may be reproduced as under:
(g). Whether the suit for declaration based entirely on the ground of mistake is governed by Art. 67 of the Limitation Act and consequently the
present suit was barred by limitation"".
The other questions formulated need not to be determined by us because the appeal is being disposed of only on the aforesaid question of law.
The brief facts giving rise to the filing of this appeal by the Jammu and Kashmir State Board of School Education are as under.
The respondent filed a suit for declaration to the effect that his date of birth be declared to be 12.9.1995 {Bikrami} corresponding to
24.12.1939 A.D. and that accordingly mandatory injunction be issued directing the defendant in the suit (appellant herein) to make necessary
correction in the record of the plaintiff so as to give him the benefit of the changed date of birth. The plaintiff's case before the trial court was that
he was a permanent resident of Jammu and Kashmir and was born on 12.9.1995 Bikrami corresponding to 24.12; 1939 A.D. He was admitted in
Government Primary School, Chandak, now Government, High School. After completing his primary education from the then Primary School,
Chandak, the plaintiff took admission in the Government High School, Poonch, Now Government Higher Secondary School, Poonch. When the
plaintiff got admission in the Government High School, Poonch, the date of birth of the plaintiff was recorded as 12.9.1995 (Bikrami). In the year
1959 the plaintiff had to appear in the Matriculation Examination which was to be conducted by the then Jammu and Kashmir University (appellant
herein as successor to the then Jammu and Kashmir University). The application form for entry in the Examination was filled by the School
Authorities in which the date of birth of plaintiff was recorded as 12.9.1995. The plaintiff appeared in the Matriculation Examination as a regular
candidate under Roll No. 1844 in the year 1959 and passed the said examination. After completing his Matriculation, the plaintiff joined the
Government service in the Revenue Department of Jammu and Kashmir State as Patwari and by dint of his hard work, he rose to the present
position of Tehsildar Agrarian Reforms.
What comes now is perhaps the most important part of the facts of the present case. In para5 of the plaint, he has mentioned that in the year
1981, all the employees serving in the Jammu and Kashmir State were asked by the concerned departments to submit their original record
regarding the date of birth for verification of the same as recorded in the Service Book. The plaintiff when obtained the relevant record found that
the date of birth of the plaintiff was recorded as 12.9.1995 (Bikrimi) but when the same was converted into Christian era, the concerned
authorities had recorded the same as 24.12.1936 instead of 24.12.1939. It shall be advantageous to reproduce the whole of para5 of the plaint
which reads thus:
(5). That in the year 1981 all the employees serving in the State of Jammu and Kashmir were asked by the concerned departments to submit their
original record regarding the date of birth for verification of the same as recorded in the Service Book. The plaintiff when obtained the relevant
record found that the date of birth of the plaintiff was recorded as 12.9.1995 Bikrami but whenthe same was converted into Christian era the
concerned authorities had recorded the same as 24.12.1936 instead of 24.12.1939. This conversion appeared to have been inadvertently and
wrongly made in the service record of the plaintiff as well as in the Matriculation Certificate of the plaintiff issued by the then Jammu and Kashmir
University. The. record of the then Jammu and Kashmir University has since been taken over by the defendant and the defendant is only competent
to make such correct, [SIC] as such the plaintiff applied to the defendant for making correction/rectification of his date of birth as recorded in the
Christian Era. The plaintiff since the year 1981 till date had been approaching the defendant for the rectification of the mistake but the defendant
had been avoiding the same. Ultimately the plaintiff served a notice through his advocate, Shri Permod Kohli, Advocate, on 6.2.1985 to the
defendant. The notice was received by the defendant but the defendant vide its order dated 6.6.1985 had refused to make necessary correction in
the date of birth on the false plea that the Board has rejected the request of the plaintiff being timebarred. The letter in original is annexed hereto as
Annexure P2. The said letter of rejection of the request of the plaintiff is illegal, arbitrary, without any basis and against all the cannons of justice
It appears that the trial court proceeded exparte against the defendant in the suit on the basis of some report about the service of summons upon
the defendant. During the course of trial, some evidence came to be produced before the trial court, but interestingly none of it related to either
production of record from the Board's office of School Education nor was the Matriculation Certificate produced in the trial court nor did the
plaintiff make any attempt to summon any relevant form, much less the form alleged to have been filled up in the year 1959 from the Board's office
nor was any attempt was made to establish before the trial court that such record was either not traceable or was not available. Be that as it may.
On the basis of available evidence the trial court passed the decree in favour of the plaintiff in the terms indicated in the plaint itself. The decree as
noticed above was passed exparte against the defendant. Because the evidence recorded by the trial court is wholly irrelevant for the purpose of
present 'appeal, I need not discuss any part of it.
Because the decree was passed exparte against the defendant, it preferred a time barred appeal before the 1st. Appellate Court, 2nd Additional
District Judge, Jammu. For the reasons stated in the judgment of the lower appellate court, the appeal was dismissed as time barred because the
lower appellate court did not agree with the contentions of the appellant mat it had sufficient cause warranting the condonation of delay in. filing the
appeal. It is under these circumstances that the appellant has preferred civil second appeal in this court.
Section 3 of the Limitation Act reads thus:
Dismissal of suits, etc., instituted, etc. after period of limitation :Subject to the provisions contained in sections 4 to 25 (inclusive), every suit
instituted, appeal preferred, and application made, after the period of limitation prescribed therefor by the first Schedule shall be dismissed,
although limitation has not been setup as a defence.
Explanation: A suit is instituted in ordinary cases, when the plaint is presented to the proper officer; in the case of pauper, when his application for
leave to sue as a pauper is made; and, in the case of a claim against a company which is being wound up by the court, when the claimant first sends
in his claim to the official liquidator
Article 67 of the Schedule to Limitation Act relating to the grant of relief on the ground of mistake prescribes three years period of Limitation
and the time from which the period begins to run is relatable to the discovery of the mistake by the plaintiff. If there is any dispute regarding the
applicability of Article 67, no one can dispute that the residuary article, i.e. Article 181 shall in any case be squarely applicable which also
prescribes three years as period of limitation for such like suits.
The entire case of plaintiff is based upon an edifice built in para5 of the plaint in which it has been stated that the plaintiff discovered the mistake
in the year 1981, when he came to learn that the date of birth was wrongly recorded in the relevant service record. To appreciate the averments
made in para5 of the plaint, one cannot ignore the averments made in para11 of the plaint which directly relate to the accrual of cause of action to
the plaintiff. Para11 may thus be reproduced as under:
(H). That the cause of action accrued to the plaintiff firstly when the wrong entry was made in the Matriculation Certificate and the Service book
of the plaintiff and in the year 1981 when the plaintiff came to know of the wrong entry and finally in the month of June, 1985 when the defendant
issued Annexure P2 with a plea that the request of the plaintiff was time barred and as such rejected the same"".
It is, therefore, the admitted case of plaintiff that he discovered the mistake in the relevant record regarding his date of birth in the year 1981.
By setting up this case, the plaintiff appears to be unaware of the difficulty facing him because he has not explained as to how and in what manner
did he escape discovering the mistake in the Matriculation Certificate about the date of birth having been recorded as 24.12.1936. Plaintiff has not
at any place in the plaint averred that he was not aware of such recording in the Matriculation Certificate which was admittedly issued in the year
1959, which also was admittedly the basis of his entering into government service. The plaintiff has also not setup any case as to whether at any
stage subsequent to 1959 did the Matriculation Certificate came to be lost or misplaced or that the plaintiff did not have an opportunity to have a
look at it for so long as almost 22 years. If therefore, the Matriculation certificate issued in 1959 was all along in possession of the plaintiff, it can
safely be presumed that for this entire period, right from 1959, the plaintiff had full knowledge about his date of birth having been recorded as
24.12.1936 in the Matriculation certificate and yet, for totally unexplained reasons, he did not raise his little finger till 1981, when for the first time
he appeared to have made some attempt in the direction of changing his date of birth. If, therefore, one reads the averments in para5 and Para11
of the plaint together, one is totally convinced that the cause of action, on the facts admittedly averred by the plaintiff in the plaint accrued to him in
1959 when the matriculation certificate was issued and therefore, on that basis limitation to file any suit for change in the date of birth of the plaintiff
should have started from 1959 itself, relatable to the period of limitation prescribed for filing the suit. Even though plaintiff appears to have
deliberately used a vague expression, viz, ""relevant record"" in para5 of the plaint, one tends to take a view that by ""relevant record"", the plaintiff
must have meant matriculation certificate. There is no other meaning which can be attached to this expression especially when the plaintiff did not
provide any details about any communication sent by the government allegedly in 1981 nor did he place any document on record to suggest that he
in fact ever received any communication from the government. To my mind it appears that somewhere around early eighties, the plaintiff developed
a temptation to take a chance in his attempt to get his date of birth changed so that he could serve for a longer period of three years. The attempt
had succeeded in the two lower courts below, but unfortunately for him, he has not been able to achieve the desired result in this court.
Mr. Kohli learned counsel appearing for the respondentplaintiff has strongly urged that the limitation is a mixed question of fact and law. He
also urged and very vehemently, that in civil second appeals, this court should not reappreciate or reappraise the evidence led in the case. His third
submission is that the court should not consider the question of limitation at all because the appellant has raised it for the very first time in the civil
2nd Appeal. In support of these three submissions, he has relied upon the following judgments:
(1990) 4 SCC 15
AIR 1990 SC 1973
(1989) 3 SCC 287
(1993) SCC Suppl. 1
1990 KLJ 63
1990 KLJ 101
First of all I have to clearly observe that all these judgments are wholly distinguishable and none of them is applicable to the issue involved in
this case. In so far as the contentions regarding the appreciating, reappreciating or reappraising the evidence or the facts are concerned, I have
already indicated that I am not going to even discuss the evidence recorded during the trial by the trial court because I am dismissing the suit only
on the question of limitation and on no other question. In so far as Mr. Kohli's twin submission regarding the limitation not having been set up as a
ground by the appellant and it being a mixed question of fact and law, I can simply deal with it by observing that in terms of clear mandate
prescribed in section 3 of Limitation Act, every suit if time barred has to be dismissed even if limitation is not set up as a defence by the parties to
the suit. That apart, as the chronology of events reproduced earlier in the judgment indicates the appellant did not have any possible opportunity to
set up the limitation as a defence to the suit because the decree was passed exparte against the appellant and it is only in the written statements filed
by the defendants in the suits that all pleas, including those relating to limitation etc. controverting the averments by the plaintiff are raised. All these
things apart, this court cannot act as a silent or mute spectator to a stark factual reality, when on the very face of plaint, the suit is patently time
barred. A very strange attempt was made to argue that the limitation being a mixed question of fact and law should be left open and that the court
should not touch such questions in civil second appeals. The expression ""mixed question of fact and law"" is basically a misnomer in a case when the
facts by themselves unambiguously pleaded, averred and admitted by a party in its own pleadings, (plaint in this case) lead the court to draw the
only available conclusion that, applying these facts, the suit is time barred. I am not disputing any fact while disposing of this appeal as pleaded by
the plaintiff in the plaint. I am disposing of this appeal on the very basis of these admitted facts. I am neither controverting the facts nor importing
any facts either from the source of appellant or from any other source. A reference to the averments in the plaint as reflected in paras 5 and 11
clearly establishes that it is on the basis of facts averred by the plaintiff, that the suit is being disposed of. Where then is the question of their being
any mixed question of fact or law?
13, Based on the aforesaid discussion I hold that the suit filed by the plaintiff, viewed from any angle was patently time barred. The trial court
should have considered the question of limitation even without there being any defence set up by the defendant, especially when it was dealing with
the suit exparte. A graver error appears to have been committed by the 1st. Appellate court in ignoring the facts involved in the case and dismissing
the first appeal of appellant as time barred.
I had an option of remanding the suit to the trial court for retrial because the decree was passed exparte. In normal circumstances, remand to the
trial court might have been a desired course of action, but in the present case, because I have held the suit to e patently time barred on the basis of
averred, pleaded and admitted facts by the plaintiff himself, remanding the suit to the trial court for retrial remanding the suit to the trial court for
retrial shall be an exercise in futility because the plaintiff cannot improve upon his case in the trial court from what he has pleaded in the plaint and
even if the suit is remanded, ultimately by the trial court also, it has to be dismissed as time barred.
The appeal accordingly is allowed. The decree and judgment impugned in the appeal is setaside and the suit of plaintiff is dismissed. No costs.