- (1.) HEARD learned counsel for the parties.
(2.) THIS second appeal under Section 100 CPC has been filed by the defendant respondents against the judgment and decree dated 18th January, 1995 passed by the Additional District Judge No.6, Jaipur City, Jaipur in civil first appeal no.30/1993 whereby the judgment and decree dated 24th April, 1993 passed by the Munsif Magistrate, Jaipur City (West), Jaipur in civil suit no.114/1990, dismissing the suit of the plaintiff-respondent for permanent injunction to the effect that the defendants be restrained from retiring him before his attaining the age of 58 years from his correct date of birth 12th May, 1944 and allow him to continue in the service with all consequential benefits treating his date of birth as 12th May, 1994. The relevant facts of the case in brief are that the plaintiff respondent filed the aforesaid civil suit for permanent injunction seeking injunction order against the order of superannuation on the basis of his date of birth as 5th February, 1932 and further sought correction in the date of birth as 12th May, 1944 with the further prayer that he should not be deprived of any consequential benefit on the basis of the said date of birth. The further averments in the plaint are that at the time of his initial recruitment on the post of Helper Gr.II, a check form was filled in mentioning his date of birth as 12th May, 1944 and the same date of birth has been mentioned in the seniority list issued for the first time on 26th November, 1975. However, in the subsequent seniority list his date of birth was mentioned as 5th February, 1932 which was without any basis. He came to know about this fact for the first time in the month of February, 1990. He then submitted a representation to defendant no.2 for correcting his date of birth as 12th May, 1944. However, vide letter dated 30.12.1989, defendant no.3 informed him that they are going to retire him w.e.f. 28th February, 1990 taking his date of birth as 5th February, 1932. Therefore, the aforesaid civil suit was filed by the plaintiff-respondent for permanent injunction seeking the aforesaid reliefs. The appellant-respondents filed their written statement with the averments that in the service book and other documents, the date of birth of the plaintiff has been mentioned as 5th February, 1932, therefore, he is being retired on attaining the age of superannuation taking his date of birth as 5th February, 1932. It was also mentioned that the plaintiff was knowing that his date of birth is 5th February, 1932 but neither any objection was raised by him in this respect nor any steps were taken for getting the same corrected. It was further mentioned that only on the basis of the certificate of Medical Jurist, the same cannot be taken as 12th May, 1944. It was also disputed that the seniority list issued on 26th November, 1987 came to his knowledge in the month of February, 1990 and he also failed to raise any objection regarding the same. It was then mentioned that the plaintiff has been retired w.e.f. 28th February, 1990 on the basis of the date of birth mentioned in the service book. In the additional pleas, it was mentioned that the suit is only for permanent injunction and notice or the order of retirement have not been challenged hence, the suit for permanent injunction without getting the order illegal and void ab inito is liable to the dismissed. Thus, it was prayed that the suit be dismissed. On the basis of the pleadings of the parties, the following issues were framed:- ...[VERNACULAR TEXT OMMITED]... To prove his case, the plaintiff appeared himself as witness (PW1) and also got exhibited Ex.1 circular dated 26.11.1975, Ex.2 report of Medical Jurist and Ex.3 order dated 10th February,1992. From the side of the defendants, Indra Singh was examined as DW.1 and documents Ex.A.1 Service Book and Ex.A.2 copy of the order dated 26.11.1988 were got exhibited.
(3.) THE trial court after hearing both the parties and after consideration of the evidence of the parties vide judgment dated 24th April, 1993 decided issues no.1, 2, 4 and 5 in favour of defendant respondents whereas issue no.3 was decided in favour of the plaintiff and ultimately dismissed the suit of the plaintiff respondent. Against the said judgment and decree of the trial court, the plaintiff-respondent filed regular civil appeal before the first appellate court. During pendency of the first appeal, on 19th September, 1994 an application under Order 6 Rule 17 CPC was filed on behalf of the plaintiff respondent seeking addition in the prayer clause to the effect that it may be declared that the correct date of birth of the plaintiff is 12th May, 1944 and his retirement from service w.e.f. 28th February, 1990 is illegal and void abinitio. The appellate court vide order dated 21st November, 1994 allowed the application on cost of Rs.250/-. ;