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Judgment
V. Kanagaraj, J.—The above Civil Revision Petition has been filed by the petitioner/plaintiff against the Fair and Decretal order dated
4.10.2002 made in unnumbered O.S. No. of 2002 by the Court of District Munsif, Hosur thereby rejecting the plaint filed by the
petitioner/plaintiff.
The case of the petitioner is that he has filed a suit for declaration (i) that he was born on 25.10.1947 at 7.30 a.m. at Kelamangalam,
Denkanikottai Taluk, Dharmapuri District and (ii) consequently direct the defendants to enter the date of birth of the plaintiff as 25.10.1947 instead
of 25.10.1944 in the records maintained in the office of the defendants and confer all consequential benefits on the plaintiff on the averments that he
was actually born on 25.10.1947 at Kelamangalam, Denkanikottai Taluk at about 7.30 a.m.; that his date of birth was not entered by his parents
in the Birth Register maintained in the office of the first defendant due to the reasons known to them; that the plaintiff joined the service as Village
Karnam, a hereditary office, at Kelamangalam on 1.11.1972 and he was in that post till 14.11.1980 the date of abolition of such posts throughout
the State; that subsequently on the basis of the Government Order he was selected for the post of Village Administrative Officer and appointed.
The further case of the petitioner is that he joined the service on 22.7.1989; that at the time of his joining service, he gave his date of birth as
25.10.1944 at Kelamangalam as there was no record to show his real date of birth at that time; that subsequently he got a very old horoscope
which was 30 years old and marked the same as an exhibit; that apart, the plaintiff also applied for the copy of the birth extract from the office of
the first defendant vide his application dated 28.1.2000 and the same was returned as not traceable on 28.1.2000; that on the basis of the wrong
date of birth, the plaintiff is likely to retire from service and the request for the correction of date of birth was rejected by the second defendant on
the basis of the order of the PCCA for want of school or any other certificate; that he challenged the orders of the second defendant before the
Tamil Nadu Administrative Tribunal, Chennai and the orders of the PCCA Chennai on the basis of which the second defendant had passed an
order which was not served on the plaintiff. On such averments plaintiff would pray for the relief extracted supra.
The Court of District Munsif, in consideration of the facts pleaded by the plaintiff and upon hearing the learned counsel for the plaintiff, has
arrived at the conclusion that the suit for declaration of age or date of birth could be maintained if the relief claimed does not relate to his conditions
of service; that the said Court has also come to the conclusion that the Court of District Munsif had no jurisdiction to entertain the suit and
ultimately rejected the plaint filed by the petitioner herein, by the order dated 4.10.2002. Aggrieved by the said fair and decretal order, the plaintiff
has come forward to file the above Civil Revision Petition on certain grounds as put-forth in the grounds of Civil Revision Petition.
During arguments, the learned counsel appearing on behalf of the revision petitioner would submit that it is a case of rejection of the plaint; that
he was out of service from 1990 to 1995; that on 18.11.1989, he was appointed temporary Village Administrative Officer on the basis of his
previous service and in his service book and the school records wherein it has been entered as though he was born on 25.10.1944; that by order
dated 18.6.1999 his probation was completed as per the orders passed by the District Collector Dharmapuri; that under Rule 49 of the General
Rules of Tamil Nadu State Subordinate Services Rules it is contemplated that the date of birth of a Government servant could be altered within five
years of his entry into service and that the procedure prescribed in Government letter dated 3.3.1979 read ''applications for alteration of date of
birth should be sent to Special Commissioner C.R.A. through the departmental authorities only''. Based on these rules the lower Court rejected the
plaint.
The learned counsel would cite also a judgment reported in Chaube Jagdish Prasad and Another Vs. Ganga Prasad Chaturvedi, wherein it is
held that ''Section 115 CPC empowers the High Court in cases where no appeal lies to satisfy itself on three matters: (a) that the order made by
the subordinate Court is within its jurisdiction; (b) that the case is one in which the Court ought to exercise its jurisdiction and (c) that in exercising
the jurisdiction the Court has not acted illegally.''
The second judgment cited is one from the case Pandurang Dhoni Chougule Vs. Maruti Hari Jadhav, wherein it is held:
The High Court cannot while exercising its jurisdiction under S. 115, correct errors of fact, however gross they may be, or even errors of law. It
can only do so when the said errors have relation to the jurisdiction of the Court to try the dispute itself. It is only in cases where the Subordinate
Court has exercised a jurisdiction not vested in it by law, or has failed to exercise a jurisdiction so vested, or has acted in the exercise of its
jurisdiction illegally or with material irregularity that the reversional jurisdiction of the High Court can be properly invoked.
The third judgment cited by the learned counsel is one reported in Maganlal Chhotabhai Desai Vs. Chandrakant Motilal, It is a case wherein in a
suit filed by landlord against tenant for possession, arrears of rent and mesne profits and a decree passed in such suit, the Court gave direction that
the landlord do render account of overpayments made to him thus, acting illegally and with material irregularity in such case the Hon''ble Apex
Court held in the above judgment:
High Court has full power to revise the decree u/s 115 and give such direction in the matter as it thinks fit.
The next judgment cited by the petitioner is one reported in Titagarh Jute Factory Co. Limited Vs. Sriram Tiwari, wherein dealing with a
question of determining the age of a workman particularly when he disputes notice of superannuation and whether a suit filed in a civil court is
maintainable or should he recourse to forum under I.D. Act, a learned single judge of the Calcutta High Court has held:
since the right accrues to workman under the general law, suit in civil Court is maintainable; more so, as the Industrial Disputes Act does not bar a
remedy -- where both civil and industrial remedies are available it is open to the employee to choose either of them.
The next judgment cited by the petitioner is one reported in K. Madhaeva Sastry Vs. Director, Post Graduate Centre, wherein a Division
Bench of the Andhra Pradesh High Court in a decree declaring the correct date of birth of the plaintiff/employee has held:
the defendant employer public authority cannot ignore decree on ground of absence of direction for rectification of service record.
The next case cited by the petitioner is one reported in Maitreyee Banerjee Vs. Prabir Kumar Mukherjee, wherein the Hon''be Apex Court
has held:
The High Court in its power of revision ought not to have interfered in a case like this as no jurisdictional error was involved.
The other case cited by the petitioner is one from the Division Bench of the Karnataka High Court reported in State of Karnataka and Another
Vs. T. Srinivas, wherein it has been held:
declaration of a persons''s age is declaration of his status and that the jurisdiction of the Civil Court is not ousted either expressly or impliedly by
the provisions of the Registration of Births and Deaths Act and the Rules framed thereunder.
On such grounds, the learned counsel for the petitioner would pray to allow the Civil Revision Petition setting aside the order of rejection of the
plaint made by the trial Court.
In reply, the learned counsel appearing on behalf of the respondent would cite Section 2.2 of the C.P.C. which reads:
decree"" means the formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the
parties with regard to all or any of the matters in controversy in the suit and maybe either preliminary or final. It shall be deemed to include the
rejection of a plaint and the determination of any question within section 144 ,but shall not include-
(a) any adjudication from which an appeal lies as an appeal from an order, or
(b) any order of dismissal for default.
The learned counsel for the respondent would also cite a judgment reported in Chinnangi Konar Vs. Paramasivam and Another, which has been
rendered following the Shamsher Singh Vs. Rajinder Prashad and Others, wherein it is held:
that against an order rejecting the plaint only an appeal will lie and not a revision.
The learned counsel would also cite Order XLIII Rule 1(a) of C.P.C. in confirmation of his argument that on rejection of a plaint or returning
of a plaint only an appeal shall lie and not a revision as it has been resorted to by the petitioner herein. On these arguments, the learned counsel for
the respondent would pray to dismiss the above Civil Revision Petition.
In consideration of the facts pleaded, having regard to the materials placed on record and upon hearing the learned counsel for both, needless
to mention that it is a case of rejection of the plaint by the lower Court on grounds that (i) as per Rule 49 of the General Rules of Tamil Nadu State
and Subordinate Services Rules in Service Manual Volume I "" the date of birth of a Government Servant can be altered within five years of entry
into service.
(ii) the procedure for such alteration has been prescribed in Government letter No. 30285/78-7 P&AR dated 3.3.1979 that: ""applications for
alteration of date of birth should be sent to Special Commissioner C.R.A. through the departmental authorities only.
Citing the above two rules the lower Court would also cite the ruling of the Hon''ble Apex Court in State of Karnataka and Another Vs. T.
Srinivas, wherein it is held:
that a suit for declaration of age or date of birth could be maintained if the relief claimed does not relate to his conditions of service.
Citing the above judgment, the lower Court commenting that it has no jurisdiction to entertain the suit would end up rejecting the plaint, against
which the petitioner has come forward to file the above Civil Revision Petition on certain grounds as brought-forth in the grounds of revision that
the suit has been filed by the petitioner as the plaintiff therein praying for a decree (i) that he was born on 25.10.1947 at 7.30 a.m. at
Kelamangalam, Denkanikottai Taluk, Dharmapuri District and (ii) consequently to direct the defendants to enter the date of birth of the plaintiff as
25.10.1947 instead of 25.10.1944 in the records maintained in the office of the defendants and confer all consequential benefits on the plaintiff.
The two questions that are to be answered at the outer periphery of the subject pertaining to the plaint which was rejected by the lower Court
are:
(i) Whether a Government Servant, within the meaning of the letter cited dated 3.3.1979 and the judgment of the Apex Court cited supra could file
a suit for declaration or alteration of his age before the Civil Court and whether such a suit filed by the Government Servant, without exhausting the
procedures prescribed in the Government letter dated 3.3.1979 cited supra, particularly for determination or alteration of the date of birth would
lie in the Civil Court?
(ii) If the suit had not been filed within five years of the petitioner entering service as per Rule 49 of General Rules of Tamil Nadu State and
Subordinate Services Rules where-under the date of birth of the Government Servant could be altered within five years of the entry into service,
the petitioner being one covered under the said rule whether the suit filed would lie before the lower Court?
So far as the second question is concerned, on facts, the petitioner has to justify on this ground under which the lower Court rejected the plaint
since at the time of filing the suit he has completed the service of five years and therefore, the petitioner is not eligible to file the suit at this score.
According to the petitioner, since his probation was declared only in the year 1999, the lower Court cannot take it for granted that he had
completed the service of five years as a Government Servant and on that score rejecting the plaint is erroneous.
On the contrary, on admission of the suit, the lower Court shall frame a preliminary issue to decide such questions prior to settling the other
issues involved in the case and therefore, without an opportunity for the petitioner to contest that point or issue that he had crossed five years of
service as a Government and rejecting the plaint on that score is nothing but erroneous.
Coming to the second point, there is no doubt within the meaning of the judgment of the Apex Court that a suit for declaration of the age on the
date of birth of a Government Servant, could be maintained if the relief claimed does not relate to his conditions of service. The Government letter
No. 30285/78-7 P&AR dated 3.3.1979 according to the lower Court contemplates ""applications for alteration of date of birth should be sent to
Special Commissioner C.R.A. through the departmental authorities only.
From the wordings of the Government letter in the light of the judgment of the Apex Court cited supra, since the service conditions are such
that the petitioner cannot all of a sudden jump to filing the suit without resorting to the conditions of service which lay down certain procedures to
be followed before the Governmental authority the Special Commissioner and Commissioner for Revenue Administration, having forwarded the
application for determination of the age, date of birth or alteration of the date of birth of a Government Servant and on a decision taken by the said
authority, only then as the last resort the Government Servants like the petitioner can resort to the legal remedy before a court of Civil Forum and
while such effective alternative remedy is made available by the procedures established therein in the department, the petitioner has no right in
surpassing the procedures and hence under this score the lower Court is right in rejecting the plaint.
Yet another legal point that has to be decided at this juncture is that on rejection of the plaint whether a Civil Revision Petition as it is resorted
to on the part of the petitioner herein would lie u/s 115 of C.P.C. or a regular appeal as it is contemplated by law? Whereas u/s 2.2 and under
Order XLIII Rule (i) C.P.C. it is quite clear that on rejection of a plaint only an appeal would lie which needs no explanation and therefore,
needless to mention that at this score also a Civil Revision Petition as it has been filed on the part of the petitioner before this Court cannot be
maintained which is irregular and illegal.
In result,
(i) for the reasons aforementioned, the above Civil Revision Petition does not merit acceptance and the same is dismissed as such;
(ii) No costs.