BOARD OF SCHOOL EDUCATION, J&K Vs. JANAK SINGH
HIGH COURT OF JAMMU AND KASHMIR
Board Of School Education, JAndK
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(1.) 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 06 -02 -1995 made the following
"...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 Honble The Chief Justice for constitution of a proper Bench."
A Civil Second Appeal under S -102 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
(2.) 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 25 -4 -42 and not 25 -4 -1938, 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 (Sub -Judge, 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 5 -7 -1985 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 7 -10 -1985 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 5 -7 -85 which was also not replied and so suit was presented on 7 -10 -85 which is perfectly within time..."
(3.) WE find the learned Sub -Judge, 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: -
"67. 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 Sub -Judge 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&K Board of School Education \ Syed Mohd Afzal Shah, Civil second
appeal No. 1 of 1997, relying on the judgment of the apex court, held as
".....In State of Punjab and others V/S Gurdev Singh and Ashok Kumar, AIR 1992 SC 111, 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 if not earlier.
Since the relief is founded on the ground of mistake in 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&K Board of School Education V/S Mohd Shareef, 1994
K.L.J. 516. 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.;
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