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| This order of J&K High Court pronounced by Mr Justice Muzaffar Jan on 02-03-2002, which remains unchallenged till date and has also been partly published in Srinagar Law Journal in the year 2002, makes it unambiguously clear that Date of Birth of Mr Basha | | | Bench: M Jan
JUDGMENT
Muzaffar Jan, J.
1. This revision petition has been directed against judgement and order dated 28th Aug, 1993 passed by IV Additional District Judge, Srinagar in Appeal No 11 of 22.11.1989 dismissing the appeal as time barred. Some relevant basic facts may be noted.
2. Record reveals that the respondents No. 1 (Plaintiff) filed a suit for declaration and injunction with the prayer that the Chairman, Jammu and Kashmir Board of Secondary Educations, be directed to record his date of birth as 25th Chet, 2007, which corresponds to 7th April, 1951, in the Board record instead of 7.9.1949 as reflected in his Matriculation certificate and consequently to issue a fresh Matriculation certificate in his favour. The suit was decreed by learned City Munisff, Srinagar, vide Judgment and Order dated 9.5.1989 in ex-parte. The appeal filed against the judgment and order of the learned City Munisff, Srinagar, dated 9.5.1989 was dismissed in IV Additional District Judge, Srinagar on the ground of delay in filing the appeal and rejection of the application for condonation of delay vide order dated 28.8.1993. It is the validity of this order of learned IV Additional District judge Srinagar which has been challenged in the present proceedings.
3. This revision petition is pending in this Court since 1995. The respondents have been consistently absent inspite of knowledge and, as the revision petition is pending since long and involves purely a question of law, it is taken up for final adjudication.
4. The main grounds taken in the revision petition are that although respondent No. 1 knew that 7.9.1949 was written as his date of birth in the school record, yet he did not apply for correction of the said date of birth immediately after he became aware of the alleged wrong entry of his date of birth in the school register. In the admission form for the Matriculation Examination in 1964, respondent No. 1 endorsed his date of birth as 7.9.1949 without disputing the genuineness of this entry and respondent No. 1 in fact, acted upon it for 24 years without raising any objection. After 24 years respondent No. 1 filed suit No. 10 in the court of city Munsiff, Srinagar, for correction of his date of birth. The suit being barred by limitation was not maintainable, yet the trial court permitted the relief in ex-parte and directed the correctness of the date of birth in abject violation of law by exceeding his jurisdiction. An appeal was filed against the judgment and order of learned City Munsiff, dated 9.5.1989. The learned IV Additional District Judge, Srinagar, rejected the appeal on the ground of limitation without considering the legal aspect that the suit before the trial court filed on 7.4.1988 was barred by limitation and suffered from laches. The petitioner, accordingly, prays for setting aside the orders dated 9.5.1989 and 28.8.1993.
5. Heard learned counsel for the petitioner at length and perused and considered the entire material on record.
From the perusal of annexure 'c' which is a photocopy of Admission Form of respondent No. 1 for the Matriculation Examination pertaining to the year 1964, it is manifestly clear that respondent No. 1 has written his date of birth as 7.9.1949 way back in the year 1964. This fact by itself, substantially and conclusively, shows that respondent No. 1 was fully aware of the entry of his date of birth in the school register as 7.9.1949. Being aware of this fact and also on acquiring this knowledge, respondent No. 1 could have filed a suit for correction of his date of birth within a period of three years from the date of acquiring the knowledge of his date of birth recorded as 7.9.1949 in 1964. In this connection it may be appropriate to quote Section 3 of the Limitation Act which reads thus:
"3. Dismissal of suits, etc., instituted, etc. after period of limitation. Subject to the provisions contained in Section 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 set-up as a defence"
6. Article 67 of the Schedule to Limitation Act relating to the grant of relief on the ground of mistake prescribed 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. Apart from Article 67, Article 181 of the Schedule to Limitation for such like suits. That being so, respondent No. 1 could have filed the suit in the year 1967. He instead filed the suit in the year 1988, i.e., 24 years after he gained the knowledge.
7. Apart from the above, the plaintiff in para 1 of his plaint had specifically averred that he passed Matriculation Examination in the year 1964. The relevant para of the plaint is quoted below:-
" 1. That the plaintiff passed Matriculation Examination under Roll No. 4013 in the year 1964 (Annual)."
8. It is not his case that till 1988 the Matriculation Certificate was not issued in his favour. It is a matter of course that Matriculation Certificate is issued immediately after the results are declared. In that view of the matter, respondent No. 1 would have received the said certificate in the year 1964 itself. Thus he must have seen his dated of birth in the certificate as 7.9.1949. If he was not satisfied about its correctness, he could have made an application to the Board for correction of his date of birth within a period of one year from the date of issue of the Matriculation Certificate in terms of Rule 17 (i) of the Rules of the Board. Obviously and admittedly, the respondent did not choose to avail of this remedy, ostensibly because at that time he was satisfied about the correctness of his date of birth recorded in his Matriculation Certificate.
9. In view of the above legal and factual position, the suit before the learned city Munsiff, Srinagar, was hopelessly barred by limitation. The learned Munsiff, without applying his mind to the facts attendant to the case, permitted the relief. The trial court ought to have considered the aspect of limitation without a plea in the pleadings in terms of the express provisions of law contained in Section 3 of the Limitation Act quoted hereinabove as also in view of the law laid down by this court in J&K State Board of School Education vs Mohd Sharief reported in 1994 KLJ J&K 516 wherein it has been held:
"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 ex-parte."
10. It may be observed here that courts are not obliged to pass decrees in favour of plaintiffs in ex-parte unless the facts on record are proved to justify the relief. Simply because the defendants do not appear and are set ex-parte should not be weighed as a circumstance against the defendants while considering the controversy in issue. The basic rule of evidence is that the party approaching the court must only prove the facts by producing cogent evidence, but must also show that the relief prayed for is not barred by an express provision of law or other legal disability. In the present case there was a legal bar of limitation which seems not to have been brought to the notice of the learned City Munsiff, Srinagar. On that count alone the judgment and order dated 9.5.1989 passed by the learned City Munsiff, Srinagar, deserves to the set aside. The learned IV Additional District Judge, Srinagar, did not realise that by rejecting the application for condonation of delay and dismissing the appeal as time barred, validity would be given to an illegal order which was contrary to law. The learned District Judge should have kept this thing in mind that dismissing the appeal on technical ground of limitation would not, in any way, advance the interest of justice but admittedly would abuse and violate the existing law. Law of Limitation has been enacted to advance the cause of substantial justice. It is not meant to give lease to orders which are otherwise contrary to substantive laws. While dealing with applications for condonation of delay, courts are required to proceed in the matter with the object of doing substantial justice to all the parties concerned and each case has to be dealt with on the facts and circumstances attendant thereto. Further, the court has also to weigh the far reaching effect an illegal order will have if it is allowed to remain intact on the technical grounds. In this view I am supported by a judgment of the Apex Court in State of Bihar v. Kameshwar Prasad Singh AIR 2000 Sc 2306 the relevant portion of which is quoted hereunder:-
"14 Looking into the facts and circumstances of the case, as noticed earlier and with the object of doing substantial justice to all the parties concerned, we are of the opinion that sufficient cause has been made out by the petitioners which has persuaded us to condone the delay in filling the petitions. Dismissing the appeal on technical grounds of limitation would not, in any way, advance the interests of justice by admittedly, result in failure of justice as the impugned judgments are likely to affect not only the parties before us but hundreds of other persons..."
11. In the instant case, if the impugned judgment and order of the trial court is allowed to remain, it will open a flood gate of such litigation and everybody would be tempted to seek correction of his date of birth to derive undue benefit of extended length of service in Government Departments. On that count also, the judgment and order of the trial court cannot be allowed to sustain.
12. 1n view of the legal bar of limitation for seeking correction in date of birth the judgment and order passed by the learned City Munsiff, Srinagar, dated 9.5.1989, cannot be sustained as the same has been passed in breach of jurisdiction against a mandatory direction of law. The learned IV Additional District Judge, Srinagar has equally fallen into a grave error by ignoring the facts involved in the case and dismissing the appeal as time barred.
13. Consequently, the judgment and order dated 9.5.1989 passed by learned City Munsiff Srinagar and order dated 28.8.1993 passed by learned IV Additional District Judge, Srinagar, are set aside. Since the suit of the respondent plaintiff has been held to be hopelessly barred by limitation, the same is dismissed. |
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