IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A. No. 3261 of 2005 Date of decision : 08-05-2008 Pervinder Kumar .....Appellant Secretary, Central Board of Secondary Education, Haryana Circle, Chandigarh and others .....Respondents CORAM : HON'BLE MR. JUSTICE RAKESH KUMAR JAIN Present : Mr. N.C. Kinra, Advocate for the appellant. RAKESH KUMAR JAIN, J. The plaintiff is in Second Appeal. In brief, the facts of the case as per the plaint, are that the plaintiff was born on 05-05-1980. He took admission in Government Primary School, Morkheri at the age of six years. He studied there for more than three years w.e.f. 28-04-1986 to 28-09-1989 and his date of birth was rightly mentioned in the Migration Certificate issued by the school. Thereafter, the plaintiff had taken admission in Malviya Shiksha Sadan, Ashok Vihar, Sonepat. Since, he was weak in studies, therefore, the School gave him admission in K.G. Class where he studied uptill the year 1999 and passed 10th Class. But due to inadvertence, his date of birth was wrongly mentioned in the Matriculation Certificate as 01-11-1985 instead of 05-05-1980. According to the plaintiff, he immediately filed an application to the defendant No.3 who R.S.A. No. 3261 of 2005 -2- is the principal of the school and also went to the C.B.S.E. Centre at Chandigarh (defendant No.1) and requested them for the correction of his date of birth and supplied death certificate of his father and his migration certificate to them. The plaintiff further alleged in the plaint that he took admission in 10+1 Class in Saini Senior Secondary School, Prem Nagar, Rohtak, which is affiliated to Haryana Board and had passed his 10+1 and 10+2 Class from that School. After a continuous enquiry about the correction in his date of birth, he again sent an application dated 19-03-2002 for the correction but defendant No.3 did not take any action. On the contrary, defendant No.2, vide letter dated 01-05-2002 had declined to correct the date of birth of the plaintiff on the ground that the correction can only be done within two years. This letter/order of rejection dated 01-05-2002 has been challenged in the present case by the plaintiff, alleging the following grounds : (i) That the defendants have erred in not taking into consideration the fact that if the date of birth as mentioned in Matriculation Certificate i.e. 01-11-1985 is right then the plaintiff took admission in Government Primary School, Morkheri on 28-04-1986, then it is unbelievable that how an infant of 6 months took admission in school. (ii)That the defendants have erred in not considering the fact that in the migration certificate, date of birth of plaintiff is rightly mentioned as 5.5.1980 as the plaintiff took admission in this school at about the age of 6 years. (iii)That the defendants have also erred in not considering the fact that the father of the plaintiff late Sh. Prem Chand died on 13.4.1983 then if the date of birth as mentioned in Matriculate Certificate is taken to be correct i.e. 1.11.1985, then it is not at all R.S.A. No. 3261 of 2005 -3- possible because it means the plaintiff took birth after about 2 years and 7 months of the death of his father, a totally unbelievable and highly irrelevant preposition. (iv)That the defendant no.2 has also erred in not considering the fact that the defendant no.3 has even uptil now not sent the previous application and the last one to it (defendant no.1) for correction of date of birth of the plaintiff as it is the fault of defendant no.3 due to which wrong date of birth has been got mentioned in the Matriculation Certificate. (v)That the defendants have also erred in not considering the fact that if the date of birth of the plaintiff is not corrected, then he will suffer irreparable losses and humiliation in the society and also in the field of education etc.” On notice, defendants No.1 and 2 filed a joint written statement. The suit of the plaintiff was contested on the ground of limitation, averring that the cause of action had accrued to the plaintiff in June, 1999 but the suit has been filed in August,2002 after more than three years, the Court at Rohtak had no territorial jurisdiction as the C.B.S.E. is having its Head Office at New Delhi and as per the Rule 4 of the Examination Bye-laws, only the Courts at New Delhi has the jurisdiction and also on the ground that the date of birth cannot be changed after the expiry of two years, in view of Rule 69.2 of the Examination Bye-laws which has a statutory force of law. In the written statement, Rule 69.2 of the Examination Bye-laws was also mentioned which is reproduced as under : “69.2 Change/Correction in Date of Birth i) No change in the Date of Birth once recorded in the Board's records shall be made. However, R.S.A. No. 3261 of 2005 -4- corrections to correct typographical and other errors to make the certificate consistent with the School records can be made provided that corrections in the school records should not have been made after the submission of application form for admission to Examination to the Board. ii) Such correction in Date of Birth of a candidate in case of genuine clerical errors will be made under orders of the Chairman where it is established to the satisfaction of the Chairman that the wrong entry was made erroneously in the list of candidates/application form of the candidate for the examination. iii)Request for correction in Date of Birth shall be forwarded by the Head of the School along with the photostat copies of ; a) Application for admission of the candidate to the School. b) Portion of the page of admission and withdrawal register where entry in date of birth has been made. c) The School Leaving Certificate of the previous school submitted at the time of admission. iv)The application for correction in date of birth duly forwarded by the Head of School alongwith documents mentioned in bye law 69.2(iii) shall be entertained by the Board only within two years of the date of declaration of result of Class X examination. No correction whatsoever shall be made on application submitted after the said period of two years. This will be effective from the examination to be held in March, 1995.” The petitioner filed replication in which it was alleged that the suit was not time barred as he was minor at that time and when he attained R.S.A. No. 3261 of 2005 -5- the age of majority, then he came to know the actual effect of the date of death of his father and the date of birth wrongly written in his Matriculation Certificate. It is also alleged that the Court at Rohtak has the territorial jurisdiction and so far as Rule 69.2 is concerned, that too, is not applicable. On the respective pleadings of the parties, the Court framed the following issues vide order dated 13-05-2003 : 1. Whether the impugned letter dated 1.5.2002 be set aside, as alleged if so to what effect?OPP 2. Whether the suit is time barred?OPD 3. Whether the present court has no jurisdiction to entertain the present suit?OPD 4. Relief Both the parties led oral as well as documentary evidence. The trial Court in para 9 of its judgment observed that the date of birth of the plaintiff has been wrongly recorded in the Matriculation Certificate. Para 9, the judgment of the trial Court is reproduced as under : “ There is no rebuttal to this evidence by the plaintiff. The plaintiff has properly proved the school leaving certificate issued by Government Primary School, Morkheri as Ex.P1 in which his date of birth has been mentioned as 5.5.1980 and date of admission as 28.4.1986. It is try that if his date of birth would have been 1.11.1985, he could not have been given admission in Government Primary School, Morkheri when he was merely six months old. There is no evidence on the case file that this certificate Ex.P1 has been forged by the plaintiff. Another entry which shows that the actual date of birth of the plaintiff is 5.5.1980, is the death certificate of his father Prem Chand Ex.P2 which R.S.A. No. 3261 of 2005 -6- shows that he died on 13.4.1983, the actual date of birth of plaintiff could not be 1.11.1985 as his father had already died about 2 years and 7 months prior to his alleged date of birth. The plaintiff and his mother have made the statement on oath that mother of plaintiff had not remarried. Thus, the date of birth of plaintiff cannot be 1.11.1985. When this is the position, there is no reason to disbelieve the plaintiff that his date of birth is 5.5.1980.” However, the suit was dismissed on two counts, firstly, that the period of two years, as per rule 69.2 of the Examination Bye-laws, has expired and secondly, as per Regulation 4, the Rohtak Court has no territorial jurisdiction. The plaintiff filed first appeal in which, in so far question of territorial jurisdiction was concerned, it was observed by the appellate Court that worst to worst, it could be presumed that the cause of action has arisen at Sonepat but not at Rohtak, therefore, Rohtak Court has no territorial jurisdiction and on the issue of interpretation of Rule 69.2 of the Examination Bye-laws, it was held that the application has not been filed within time, therefore, no relief can be granted to the plaintiff. At the time of admission vide order dated 25-09-2006, the following substantial question of law was framed by this Court : “Whether the suit of the plaintiff to claim correct date of birth is beyond the period of limitation?” Besides the above question, since the suit was dismissed for lack of territorial jurisdiction, the question involved is as to “whether the Court at Rohtak, had the jurisdiction to decide the lis between the parties, if the cause of action or part thereof, had arisen within its territorial jurisdiction”. R.S.A. No. 3261 of 2005 -7- Learned counsel for the plaintiff-appellant has argued that he has filed the suit on 19-08-2002 to challenge the impugned letter dated 01-05-2002 which is on record as Exhibit D-2, wherein, referring to Rule 69.2 (iv) of the Examination Bye-laws of the Board, it was observed that the application for correction in date of birth duly forwarded by the Head of School alongwith documents mentioned in bye law 69.2(iii) shall be entertained by the Board only within two years of the date of declaration of result of Class X examination. No correction, whatsoever, shall be made on application submitted after the said period of two years. Counsel for the appellant has submitted that the suit has been filed within the period of limitation but so far as the correction in the date of birth is concerned, that has been declined because of Rule 69.2 of the Examination Bye-laws. Counsel for the appellant has argued that even if remedy as per Administrative law/Rule becomes barred by limitation, legal remedy is still available under the Civil Law before the Civil Court. It was further argued that if it is proved to the satisfaction of the Court that the Date of Birth was actually wrong and was recorded because of a bonafide mistake and the applicant did not earn any undue benefit by mentioning it, the same can be ordered to be corrected. In order to substantiate his argument, the counsel for the appellant has referred to the decision of this Court rendered in the case of Karam Singh v. State of Punjab 2006(2) R.C.R. (Civil) 755, which was also a case of correction of date of birth. In respect of the second point on which, the suit was dismissed by the Court due to lack of territorial jurisdiction, the counsel for the appellant has argued that as per Section 20(c) of the C.P.C, part of the cause of action had arisen within the territorial jurisdiction of the Court at Rohtak. R.S.A. No. 3261 of 2005 -8- No one has put in appearance on behalf of the respondents despite service. I have heard learned counsel for the appellant and have perused the record. It is interesting to note that both the Courts below have returned the findings on merit that the date of birth of the appellant has been wrongly recorded. It has been found that the actual date of birth of the plaintiff could not be 01-11-1985 as his father had already died on 13-04-1983, about two years and seven months prior to the alleged date of birth, especially when, his mother stated on oath that she had not re-married. It was also found that if his date of birth is 01-11-1985, therefore, he could not have got admission in the Government Primary School, Morkheri on 28-04-1986 as he would have been six months old at that time. It was also found that there is no evidence on the case file that School Leaving Certificate (Exhibit P-1) issued by the Government Primary School, Morkheri has been forged by the plaintiff. In view of the above peculiar circumstances where the plaintiff is proved to have been born on 05-05-1980 and the date of birth 01-11-1985 has been wrongly recorded, the only hindrance in his way is of Rule 69.2 of the Examination Bye-laws, whereby, his prayer has been turned down by the respondents on the ground that the application has not been submitted within a period of two years. In the case of Karam Singh v. State of Punjab and another (supra) relied upon by the counsel for the appellant, this Court has relied upon three decisions, namely, Jiwan Dass v. State of Haryana 1989(2) I.L.R. Punjab and Haryana 110, Hari Parshad Handa v. The State of Punjab (1985-1)87, P.L.R. 39 and State of Haryana v. Chander Singh alias Chander Bhan 1988(2) P.L.R. 265. In the case of Jiwan Dass v. R.S.A. No. 3261 of 2005 -9- State of Haryana (supra), it was held that even if the period of two years or extended period of six months are not available and there is no remedy left under the administrative law after the stipulated period has expired, legal remedy under the civil law will still be available, because administrative law cannot, in fact, bar the jurisdiction of civil courts. It was further held that even the decisions of administrative authorities allowing or rejecting those requests for alternation in date of birth which may have been made within the stipulated period, too are open to judicial scrutiny when challenged before a Court of competent jurisdiction. It was thus held in the case of Jiwan Dass v. State of Haryana and another (supra), that even if a remedy as per the administrative law/rules had become barred by limitation, a legal remedy is available to the aggrieved person under the civil law before a civil court. In the case of Hari Parshad Handa v. The State of Punjab (supra), the Court had held that if there is no allegation of fraud or mis-representation, the prayer for correction in date of birth should not be declined. In the present case, no fraud or mis-representation has been projected by the defendant nor anything has been proved against the plaintiff rather the Court has held that the date of birth has been wrongly recorded but because of the hindrance of Rule 69.2 of the Examination Bye-law, the suit has been dismissed. In my view, in such like cases as the one in hand, the respondent authority should not be insensitive to such situations, where persons like plaintiff who has lost his father in 1983 and the mother has remained un-married, thereafter, should be declared to have been born in 1985 due to mistake apparent on the face of record. Since, the defendants have not brought on record anything to impute R.S.A. No. 3261 of 2005 -10- motive to the plaintiff for correction in the date of birth other than the aforesaid and has also not proved any fraud or mis-representation, the law cited by the counsel for the appellant in the case of Karam Singh v. State of Punjab (supra) is fully applicable to the effect that even if remedy as per law or rules has become barred by limitation, the legal remedy available to the plaintiff under the Civil Law before the Civil Court should have been granted by the Courts below. The judgments relied upon by the Courts below in the case of State of Haryana and others vs. Sumitra Devi and others 2004(1) RSJ 552 and Board of Secondary Education of Assam vs. Md. Sarfraz Zaman and others 2004(2) RSJ 274 are on there on facts and such is not the question here because in this case both the Courts have found as a matter of fact that the entry of date of birth is wrongly recorded and if the same is allowed to be maintained there, it is socially stigmatic. So far as the question of territorial jurisdiction is concerned, the lower appellate Court has held that the plaintiff had cleared his matriculation examination while studying in Malviya Shiksha Sadan, Ashok Vihar, Sonepat, therefore, worst to worst the cause of action is presumed to have been accrued to the appellant within the territorial jurisdiction of Court at Sonepat and not at Rohtak. The counsel for the appellant has submitted that the plaintiff-appellant has categorically stated in para 2 of the plaint that his date of birth is 05-05-1980 and at the age of six years, he took admission in Government Primary School, Morkheri, which is in District Rohtak and studied there for more than three years i.e. from 28-04-1986 to 28-09-1989 and his date of birth has been rightly mentioned in the Migration Certificate, issued by that school. The counsel for the appellant further submitted that the cause of action has to be determined from the bundle of facts, stated in the plaint and those facts constitute R.S.A. No. 3261 of 2005 -11- cause of action which are necessary for the success or failure of claim set up in the plaint. The counsel for the appellant again reverted to the decision of this Court in the case of Karam Singh (supra), where the Court, while deciding the question of jurisdiction, has pleased to hold as under : “ 27. The Apex Court in the case of Bloom Dekot Limited v. Subhash Himatlal Desa and others, (1994)6 Supreme Court Cases 322 held that by `cause of action' it is meant every fact, which, if traversed, it would be necessary for the plaintiff to prove in order to support his right to a judgment of the Court. In other words, a bundle of facts which it is necessary for the plaintiff to prove in order to succeed in the suit. 28. Thus, it has to be held that a cause of action is a bundle of facts on which the plaintiff bases his right to relief against the defendant and constitutes all such facts which would be necessary for the plaintiff to prove in order to sustain his claim and would include all such facts which if not proved would result in a failure for the plaintiff. In these circumstances, it has to be examined as to whether the facts which have been pleaded by the plaintiff in the plaint giving details with regard to his admission in the primary school at Amritsar wrong mentioning of the date of birth in the school register and the entry in the register of Additional District Registrar, Births and Deaths, Amritsar are such facts which the plaintiff was required to prove to succeed in his claim for correction of the date of birth. In my considered view, the aforesaid facts are not only necessary but are the basis of the claim of the plaintiff. The mere fact that the relief was being claimed against defendant-Punjab University, which has no office at Amritsar, would be of no consequence. In these circumstances, the case of the plaintiff would be covered by Clause (c) of Section 20 of the Code of Civil Procedure. R.S.A. No. 3261 of 2005 -12- It is well settled that a territorial jurisdiction has to be determined with reference to the pleadings contained in the plaint, irrespective of the stand taken by the defendant. The stand taken by the plaintiff brings his case within the territorial jurisdiction of the courts at Amritsar. In these circumstances, the finding recorded by the two courts below that courts at Amritsar had no territorial jurisdiction is also erroneous and, therefore, the said finding is set aside.” I am in full agreement with the argument raised by the counsel for the appellant as the same is supported by the law laid down in the case of Karam Singh (supra) because the facts, mentioned in the plaint, in the aforecited case, were the bundle of facts on which the plaintiff based his right to relief against the defendant, therefore, it is covered by clause (c) of Section 20 of the CPC. It is a well settled law that the territorial jurisdiction has to be determined on the basis of the pleadings contained in the plaint and not on the basis of stand taken by the defendant in the written statement. Thus, the second question with regard to territorial jurisdiction is also decided in favour of the appellant. Before parting with the judgment, it is necessary to be highlighted that there is no denying to the fact that the plaintiff has proved the School Leaving Certificate, issued by Government Primary School, Morkheri (District Rohtak) as exhibit P1, in which, his date of birth, has been mentioned as 05-05-1980 and date of admission as 28-04-2006, therefore, it is impossible that the plaintiff would have been given admission in Government Primary School, Morkheri at the age of six months, if the incorrect date of birth 01-11-1985 is taken into consideration. It is also found as a fact that Exhibit P-1 is not forged. It is also an established fact that the father of the plaintiff had died on 13-04-1983, as per document Exhibit P-2 which is the Death Certificate. Therefore, the plaintiff could not R.S.A. No. 3261 of 2005 -13- have been born on 01-11-1985 i.e. two years seven months after the death of his father, especially when his mother had not got remarried. Therefore, the incorrect date of birth in the record of the plaintiff is stigmatic and needs to be declared as illegal by the Civil Court. It is nobody's case that by virtue of the correction in date of birth, the plaintiff has obtained any benefit. It is basically to put the record straight. In view of the above discussion, the present appeal is thus allowed and the judgment and decree of both the Courts below are, hereby, set aside and the suit of the plaintiff is decreed as prayed for. No costs. (RAKESH KUMAR JAIN) Judge 08-05-2008 gurpreet