Kum U. Eashita, Since Minor Represented by Her Father and Natural Guardian and Sri S. Umesha vs State of Karnataka and Others

A.S. Bopanna, J.—The appellants herein are the plaintiffs in O.S. No. 6791/2011. The suit in question was filed by the plaintiffs seeking for declaration and injunction. The Court below has dismissed the suit by its judgment dated 03.04.2012. The plaintiffs are therefore before this Court. Having heard the learned counsel for the appellants, considering the nature of disposal, it would not be necessary to issue notice to the respondents.

The brief facts to be noticed is that, the 2nd plaintiff is the father of the 1st plaintiff. It is the case of the plaintiffs that, the 1st plaintiff was initially named as ''U. Eashita''. The said name is changed as ''U. Aditi'' as per certain advise. It is in that regard, the plaintiffs are seeking for change of the name in the school records and the instant suit was instituted. The Court below has not adverted into the merits of the contention. However, having noticed that the suit has been instituted by filing a application seeking dispensation of notice u/s 80(2) of CPC had arrived at the conclusion that, there was no great urgency in filing the suit and the plaintiffs should have instituted the suit after issuing notice. It is in that context, the Court below had ultimately dismissed the application as well as the suit.

Insofar as the conclusion reached by the Court below, it cannot be said that it is erroneous. However, what is to be noticed is that, the same being a curable defect, the Court below ought to have granted liberty to the plaintiffs to issue appropriate notice and reinstitute the suit. Since, the same has not been done, the appellants herein i.e. the plaintiffs would have to be granted the said liberty.

In that view, the judgment of the Court below is affirmed. However, the plaintiffs are granted liberty of issuing appropriate notice u/s 80 of CPC and if their request is not considered by the defendants within the time provided, it would be open for the plaintiffs to institute a fresh suit. The dismissal of the instant suit shall not come in the way of the Court below considering the fresh suit that may be filed by the plaintiffs. With the above clarification, the appeal stands disposed of.