Kanthimathi vs State of Tamil Nadu

G. Chockalingam, J.—Challenge in this Second Appeal is to the Judgment and Decree, dated 29.2.2008 made in A.S. No.102 of 2008 by the Principal Sub-Court, Tenkasi, confirming the Judgment and Decree passed in O.S. No.897 of 2004, dated 7.4.2005 on the file of the Principal District Munsif, Tenkasi.

The Appellant herein as Plaintiff has instituted Original Suit No.897 of 2004 on the file of the Trial Court seeking the relief of declaration and mandatory injunction, wherein the present Respondents have been shown as Defendants.

It is averred in the Plaint that the Plaintiff was born to Thiru Sivasaila Mudaliar and Janaghi alias Chidambara Vadivoo on 26.11.1957 in Tiruppur and the same was registered with Tiruppur Municipality on 27.11.1957 and there was no daughter either immediately before or after the birth of the Plaintiff between 1.1.1956 and 26.11.1957. At the time of admission in the School in 1962, the parents of the Plaintiff has wrongly given her date of birth as 5.2.1956 instead of 26.11.1957 and all her School records the date of birth of the Plaintiff has been mentioned as 5.2.1956 instead of 26.11.1957. The Plaintiff was appointed as Graduate Teacher in M.M. Higher Secondary School, Idaikal on 8.6.1998 and the same was counter signed by the 3rd Defendant. In the meanwhile on 1.8.2002, the Plaintiff came to know that her correct date of birth was 26.11.1957 and immediately she applied for the copy of her Birth Register extract from Tiruppur Municipality and in the Certificate it was mentioned that the Plaintiff was born only on 26.11.1957 and her birth was registered on 27.11.1957. Immediately on 4.9.2002 the Plaintiff to the 2nd. Defendant along with relevant documents through the Secretary of the School, who had forwarded the same to the 3rd Defendant on 5.9.2002 and there is no reply so for from the 2nd Defendant Hence, the present Suit has been filed by the Plaintiff for the relief stated above.

The 3rd Defendant filed Written Statement which was adopted by the other Defendants, it is averred as follows:

The Suit filed by the Plaintiff is not maintainable. The parents of the Plaintiff while admitting the Plaintiff in the School had given a false date of birth. The Plaintiff has not given any Application in accordance with G.O.Ms. No.1166, dated 7.7.1961, Public Service A Department The husband of the Plaintiff had also been working as Secretary in M.M. Higher Secondary School in which the Plaintiff has been working as Teacher. In all the records like SSLC Book and College Certificate, the date of birth of the Plaintiff has been mentioned as 5.2.1956. Hence, the Defendants prayed for the dismissal of the Suit.

The Trial Court, after considering the rival submission made on either side, has dismissed the Suit Against the Judgment and Decree passed by the Trial Court, the Plaintiff as Appellant has preferred A.S. No.102 of 2006 on the file of the First Appellate Court. The First Appellate Court, after hearing both sides and upon reappraising the evidence available on record, has dismissed the Appeal and thereby confirmed the Judgment and Decree passed by the Trial Court in O.S. No.897 of 2004. Against the concurrent Judgment and Decree of the Courts below, this Second Appeal has been preferred at the instance of the Plaintiff as Appellant.

At the time of admitting the Second Appeal, the following substantial questions of law have been formulated for consideration:

(1) Whether the Courts below have erred in not accepting Ex.A2, the Birth Certificate issued under the Registration of Birth and Death Act., 1969, when the prima facie presumption of its correctness has not at all been rebutted by acceptable evidence by the other side and so the findings of the Courts below is perverse in this aspect and hence, warrants interference under Section 100 of C.P.C.?

(2) When the Service Rule provides alternation of date of birth in service within 5 years from the date of entering into the service by an Employee, whether the Courts below are correct in rejecting the said relief on the basis of the Subsidiary Rule 5 of S.S.L.C. Scheme which specifically deals with correction of date of birth entered in the first page of the SSLC book ?

(3) Whether the Courts below are correct in dismissing the Suit in entirety when the Appellant/Plaintiff is entitled to get declaration of his correct date of birth and to alter the correct date of birth in Service Register by an existence of an enabling Service Rule ?

(4) Whether the Courts below are right in holding that the Plaintiff should make the Application for correction of date of birth within 5 years from the date of entry into Service Rule 49(b) of Tamil Nadu State and Subordinate Services Rules, 1961 ?

When the matter was taken, on the side of the Respondent, no one appears and therefore, after hearing on the side of the Appellant/Plaintiff and after considering the available evidences and documents available in her case, this Court is delivering the Judgment.

The learned Counsel for the Appellant/Plaintiff has argued that the Appellant/Plaintiff''s original date of birth is 26.11.1957 and it was wrongly entered into the SSLC Book and Service Register as 5.2.1956 and the Appellant/Plaintiff came to know about the mistake only on 1.8.2002 and after that, she applied for copy of Birth Registrar Extract from Tiruppur Municipality on 4.9.2002, which was marked as Ex.A2 and she applied for correcting her date of birth to the Department within 5 Years from the date of entry into the service along with relevant documents, but the Department has not passed any order for correcting the date of birth as 26.11.195 instead of 5.2.1956 and the Appellant/Plaintiff filed a Suit before the Trial Court and thereafter, filed Appeal before the First Appellate Court and both the Courts erroneously rejecting the claim of the Appellant/Plaintiff and therefore, the Second Appeal filed by the Appellant/Plaintiff has to be allowed.

Even though, at the tune of argument, no representation on the side of the Respondents / Defendants, during the pendency of the Second Appeal, the 3rd Respondent/3rd Defendant filed objection to the Memorandum of Second Appeal on 15.12.2011 itself and in the said Objection Memo, it has been stated that the date of birth of the Appellant/Plaintiff was correctly given as 5.2.1956 by her parents and it was entered into all the records etc., and therefore, she has given the date of birth to the Department as 5.2.1956 and thereafter, filed a Suit for correcting her date of birth as 26.11.1957, which is not maintainable and the Suit filed by the Appellant/Plaintiff was not legally maintainable and therefore, the concurrent Judgment and Decree of the Courts below does not warrant any interference and the Second Appeal has to be dismissed.

The Suit filed by the Plaintiff for the following reliefs:

(a) Declaring that the Plaintiff''s correct date of Birth is 26.11.1957;

(b) For mandatory injunction directing the Defendants to make necessary corrections in the S.S.L.C Service Registrar, etc., within the date to be specified by this Hon''ble Court

(c) For costs of this Suit; and

(d) Such other reliefs as this Hon''ble Court may deem fit and proper under the circumstances of this case and render justice.

But in this case, for the relief of declaration and mandatory injunction, the Appellant/Plaintiff only added the State of Tamil Nadu, rep. by its District Collector, Tirunelveli District as First Defendant and the Director of School Education, Chennai and the District Educational Officer, Tenkasi, Tirunelveli District, as Defendants 2 & 3 respectively in the Suit.

It is an admitted fact that the Appellant/Plaintiff has born in Trippur and did her School studies in Trippur, erstwhile Coimbatore district But the Appellant/Plaintiff has not added any of the parties in that District as Defendants in the Suit Even though, the Appellant/Plaintiff wanted to file a Suit for correcting her date of birth in SSLC Book as 26.11.1957 instead of 5.2.1956, she has not produced the original SSLC Book or certified copy of the same and no acceptable reason has been stated on the side of the Appellant/Plaintiff for the non-production of the SSLC Book, when the Appellant/Plaintiff filed a Suit for correcting her date of birth Hence, this Court is of the considered view that without producing that vital document on the side of the Plaintiff, the claim made by the Appellant/Plaintiff is fatal and the same cannot be accepted and therefore, this Court cannot issue any direction to the responsible persons, for correcting the date of birth, etc. and the Appellant/Plaintiff has not taken any step to produce the SSLC Book, though it is available with her So, non-production of SSLC Book is fatal to the argument of the learned Counsel for the Appellant/Plaintiff.

Further, without producing the SSLC Book, this Court cannot direct anybody for making correction in the SSLC Book and therefore, this Court cannot issue any direction and mandatory injunction as claimed by the Appellant/Plaintiff, cannot be sustainable in law Hence, the mandatory injunction cannot be granted.

Further the learned Counsel for the Appellant/Plaintiff argued that in order to prove the age of the Appellant/Plaintiff, Legal-Heirs Certificate issued by the Zonal Tasihdlar has been marked as Ex.A1 on the side of the Appellant/Plaintiff On perusal of Ex.A1, Legal-Heirs Certificate it is seen that it was given on 20.12.1995 and in that Certificate, the Appellant/Plaintiff''s age alone has been mentioned as 38 years and it is issued by Issuing Authority only to produce before the Bank.

It is argued on the Appellant/Plaintiff that in Ex. A2-Birth Certificate, the date of birth of the Appellant/Plaintiff has been mentioned as 26.11.1957 and therefore, the learned Counsel for the Appellant/Plaintiff contended that the correct date of birth of the Appellant/Plaintiff is 26.11.1957.

On perusal of Ex.A2, the Birth Certificate issued by the Commissioner, Tirupur Municipality, in which the name of baby mentioned as ''S. Kanthimathi'' and the father and mother of the baby were mentioned as Sivasila Mudaliar and Janaghi respectively and the date of registration was 27.11.1957. The Plaintiff herself examined as PW1 and during the cross-examination, she has stated that:

VERNACULAR MATTER

Further, PW1 in her cross-examination admitted that:

VERNACULAR MATTER

According to the deposition of PW1 and Ex.A1-Birth Certificate, information was given on the next clay itself i.e., on 27.11.1957 and the same was entered into the Registrar on the same day itself. So, even there is a usual practise that there will be entry in the Registrar as male or female in the 2nd column, in this case the child name was entered into as S. Kanthimathi, which is not believable one Further, the mother of the Appellant/Plaintiff has stated as ''Janaghi'' alone, but the Appellant/Plaintiff in her statement has stated that his mother name is ''Janaghi'' alias Chidambara Vadivoo and no document has been produced on the side of the Appellant/Plaintiff to prove that her mother name is Janaghi alias Chidambara Vadivoo Hence, Exs.A1 & A2 produced on the side of the Appellant/Plaintiff will not help the Appellant/Plaintiff to prove her claim.

Further, in the Plaint, the Appellant/Plaintiff averred that her parents had no child before 1.11.1956 till her date of birth or after the birth of the Appellant/Plaintiff i.e., from 1.11.1956 to 26.11.1957 and there was no female child to her parent during the period and except the above said facts and the interested testimony of PW1, no other witnesses were examined on the side of the Appellant/Plaintiff.

Further, the Appellant Plaintiff has not able to prove that on 5.2.1956, there was no children born to her parents and it is bounden duty of the Appellant/Plaintiff to prove that on 5.2.1956, no female children was born to her parents Since the Appellant/Plaintiff has not able to adduce any evidence to the effect that on 5.2.1956, there was no female children born to her parents, this Court cannot come to the conclusion that on 5.2.1956, there was no female child to the parents of the Appellant/Plaintiff.

Further, the learned Counsel appearing for the Appellant/Plaintiff vehemently argued that the present Appellant/Plaintiff filed a Suit for rectifying the correct date of birth within five years and since, the Appointing Authority/Employer of the Appellant Plaintiff has not corrected the date of birth, has filed a Suit after issuing Suit Notice-Ex.A3. The Suit has been filed within time, but the Plaintiff has taken steps within five years from the date of entry into the service but the Defendants has not passed any orders on her Application, therefore, it cannot be stated that the Suit filed by the Appellant/Plaintiff is time-barred and the Civil Court has no jurisdiction for correcting the date of birth or age of the Plaintiff.

From the above discussions, the Appellant/Plaintiff has submitted an Application to her Employer to correct the date of birth within five years according to the Government Order and thereafter, no order has been passed, hence she came to the Civil Court within the statutory period. But in the instant case on hand, even though, the Appellant/Plaintiff filed a Suit for mandatory injunction, she has not produced any document to rectify the correct the date of birth, instead of that, Legal Heir Certificate and Birth Register extract have been produced before this Court and therefore, this Court cannot ascertain the necessary parties to the Suit at this stage and the relief prayed for by the Appellant/Plaintiff cannot be granted at any point view.

Further, Appellant/Plaintiff has also failed to prove that she was not born on 5.2.1956 and she only born on 26.11.1957 and in this regard, no elder family members of the Appellant/Plaintiff was examined to prove the above facts. In the above circumstances, the oral testimony of PW1 cannot be accepted and both the Courts below have correctly come to that conclusion that the relief sought by the Appellant/Plaintiff cannot be granted Hence, this Court is of the considered view that there is no illegality or infirmity in the concurrent Judgment and Decree of the Courts below and does not call for any interference.

The learned Counsel appearing for the Appellant/Plaintiff in support of his contention, relied on the following decisions:

(1) Sivakalai Muthu v. State of Tamil Nadu, rep. by its Secretary to Government, Chennai and others, 2008 (4) MLJ 495;

(2) Harpal Singh and another v. State of Himachal Pradesh, AIR 1981 SC 361;

(3) State of T.N. v. T.V. Venugopalan, 1994 (6) SCC 302 and

(4) State of Punjab and others v. S.C. Chandha, 2004 (2) MLJ 177(SC).

This Court has already come to the conclusion that the Appellant/Plaintiff is not entitled to any relief, the decisions cited by the Appellants/Plaintiff will not apply to the facts of this case.

All the substantial questions of law are answered accordingly.

In the result, the Second Appeal is dismissed. Considering the facts and circumstances of the case, both parties are directed to bear their own costs.

S.A. Dismissed - No Costs.