R. Thangaperumal vs The State of Tamil Nadu and Others

Bakthavatsalam, J.—The petitioner is a Headmaster of the Government High School at Illayaresanandal, Sankarankoil taluk, Tirunelveli

District. According to the entry in the S.S.L.C. book, his date of birth was 6.9.1929. The petitioner''s case was that the correct date of birth is

22.10.1930. He preferred a suit in O.S. No. 187 of 1987 on the file of the District Munsif Court at Tirunelveli for a declaration that the correct

date of birth is 22.10.1930 and a consequential mandatory injunction to give effect to the actual date of birth of the petitioner as 22.10.1930.

Though the learned District Munsif, decreed the suit declaring the date of birth as 22.10.1930, regarding the mandatory injunction, the learned

District Munsif refused to grant the relief. The petitioner sent a letter on 21.12.1987 to the second respondent to alter his date of birth to

22.10.1930 from 6.9.1929 as per the judgment in O.S.189 of 1987, dated 13.8.1987. On 16.2.1988, the respondent replied as follows:

...In the decree dated 13.8.1987, the court has declared the date of birth of the above plaintiff as 22.10.1930 and dismissed the mandatory

injunction prayed for. hence the question of correcting the original date of birth both in the S.S.L.C. Book and other records does not arise...

Aggrieved by that order, the petitioner has preferred the above writ petition before this court praying for the issue of a writ of mandamus directing

the respondents to implement the declaration portion of the decree in O.S. No. 187 of 1987 dated 18.8.1987 on the file of the District Munsif,

Tirunelveli.

Notice of motion was ordered by Sivasubramaniam J. on 15.6.1988. Government Advocate has entered appearance for the respondents.

Mr.Somayaji, learned Counsel for petitioner contends that since the Civil Court has declared that 22.10.1930 as the date of birth, it is the duty

of the respondents to correct the date of birth in the records and give effect to the decree of the learned District Munsif. On the otherhand, the

learned Counsel for respondents referred to Rule 49(e) of the Tamil Nadu State and Subordinate Services Rules (hereinafter referred to as the

Rules"") which heads as follows:

49(c). Any application received after five years after entry into service or any application, which is not supported by entries in Secondary School.

Leaving Certificate, College or University records, birth extract from records of local bodies or military discharge certificates, shall be summarily

rejected.

Further, the learned Counsel contends that the Civil Court has denied the relief of mandatory injunction to the petitioner and that since the Civil

Court has denied the relief, it is not open to the petitioner to come up before this court by way of the writ petition.

I have considered the arguments of both sides. It is to be seen that the Civil Court has denied the relief of mandatory injunction, to the petitioner.

The petitioner ought to have filed an appeal against that portion of the judgment in which the relief was refused to him. He did not do so. It is not

open to the petitioner to contend that the respondents ought to have preferred an appeal. I find that the Civil Court has granted limited relief only,

taking into consideration of Rule 49(c). As held by the Supreme Court in Gulabchand Chhotalal Parikh Vs. State of Bombay (Now Gujarat), the

petitioner cannot seek the very same relief before this court by way of a writ petition. The Supreme Court has considered the principle of

resjudicata u/s 11, C.P.C. in Gulabchand Chhotalal Parikh Vs. State of Bombay (Now Gujarat), in which the Supreme Court held as follows:

Subsequent suit involving some questions and for same reliefs is barred upon general principles of resjudicata u/s 11, C.P.C.

The case before me is a converse one. The petitioner having approached the civil court and failed to obtain a mandatory injunction cannot seek the

same relief in a different manner before this court, invoking the extraordinary jurisdiction under Article 226 of the Constitution of India.

On this ground alone, the writ petition is liable to be dismissed. The decision referred to by the learned Counsel for petitioner in T. Pandurangam

v. G.M. South General Railway (1983) II L.L.J. 265 in and Railway Eastem South Manager, General Rav V.G. v.>(1969) 2 L.I.C. 1017 will not

apply to the facts of this case. Since I am dismissing the writ petition on the ground of resjudicata, I do not think it is necessary for me to refer to

the cases cited by the learned Counsel for petitioner.

In the result, the writ petition is dismissed, however, there will be no order as to costs.