IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 13TH DAY OF MARCH 2019 BEFORE THE HON’BLE MR.JUSTICE SREENIVAS HARISH KUMAR REGULAR FIRST APPEAL NO. 961 OF 2018 Between:
Sri.V.Ananda Kumar, S/o late Sri T.N.Venkataramanappa, Aged about 56 years, R/at No.208, 4th Cross, 2nd Main, 12th Block, Near Nammura Thindi Hotel, Nagarabhavi 2nd Stage, Bengaluru – 560072.
(By Sri.R.B.Sadasivappa, Advocate) And:
1. The Chief Secretary State of Karnataka Vidhana Soudha Bengaluru – 560001.
2. The Principal Secretary to Government, (Primary and Secondary Education) Multistoried Buildings Ambedkar Veedhi Bengaluru – 560001.
3. The Commissioner for Public Institutions …Appellant New Public Offices Nrupathunga Road Bengaluru – 560001.
4. The Secretary Karnataka Secondary Education Examination Board 6th Cross, Malleswaram Bengaluru – 560003.
5. The Deputy Director of public Instructions Bengaluru East, K.G.Road Bengaluru – 560009.
6. The Head Master The Bengaluru Higher Secondary School, Opp. To Uma Talkies Chamarajpet, Bengaluru – 506004.
7. The Head Master Government Primary School Sampangiramanagar Bengaluru – 560027 8. The Karnataka Power Corporation Limited Head office at Shakthi Bhavan Race Course Road Bengaluru – 560001.
Rep. by its Managing Director …Respondents (By Sri.Kiran.V. Sambrani, Advocate for R8 Smt.M.Geetha, HCGP for R1, R2, R4 and R5 R3, R6 and R7 – served unrepresented) This Regular First Appeal is filed under Section 96 of CPC., against the order dated 19.02.2018 passed on I.A No.6 in O.S No.2616/2017 on the file of the LXII Addl. City Civil and Sessions Judge (CCH-63) Bengaluru, allowing the IA No.6 filed under Order VII Rule 11(d) for Rejection of Plaint.
This Regular First Appeal coming on for Admission, this day, the Court delivered the following:
JUDGMENT Heard the Appellant’s counsel and eighth respondent’s counsel at the time of admission. This appeal is taken up for final disposal.
2. The appellant is the plaintiff in the suit in O.S No.2616/2017. He has sought for a declaration that his correct date of birth is 19.05.1962 and not 19.05.1960 as entered in the service register. The 8th respondent being the 8th defendant in the suit contested the suit and filed written statement contending that the appellant himself declared his date of birth as 19.05.1960 as shown in his SSLC marks card and therefore, in his service register his date of birth has been entered as 19.05.1960. The appellant also filed a declaration on 05.07.2012 giving his age as 52 years on that day and therefore, this declaration also confirmed that date of birth was 19.05.1960. The 8th respondent further contended that the suit was not maintainable in the present form and it was barred by time as it was not filed within 3 years from the date of knowledge regarding mistake in entering his date of birth in the service register. The trial Court proceeded to record evidence. The plaintiff himself adduced evidence as PW.1 and produced 6 documents as per Exs.P1 to P6. The 8th defendant also adduced the evidence and produced documents as per Exs.D1 to D4. When the case was posted for cross-examination of DW.1, the appellant filed an application, I.A. No.5 under Order XVI Rule 6 and 7 of CPC directing the 8th respondent to produce 3 documents. The said application came to be allowed and 8th respondent was directed to produce documents. Thereafter, 8th respondent filed an application under Order VII Rule 11(d) read with Section 151 of CPC for rejection of plaint. The learned trial judge entertained this application and rejected the plaint.
3. Assailing this order, the learned counsel for the appellant argues that the trial Court has erroneously rejected the plaint based on the written statement averments. It is well settled principle that for rejection of plaint, only the plaint averments must be considered. Here the learned trial judge only makes reference to written statement to reject the plaint and therefore, the impugned order needs to be set aside. He also argues that the suit had seen progress up to the stage of cross examination of DW.1 and therefore, the trial Court could have disposed of the suit on merits.
4. The learned counsel appearing for 8th respondent supports the impugned order.
5. Perusal of the impugned order shows that at a stage when the evidence was being recorded, the trial Court proceeded to entertain the application under Order VII Rule 11(d) of CPC. Though there is no bar for entertaining this application at any stage, here is a case where the trial judge has proceeded to reject the plaint based on the written statement averments only. Repeatedly it has been held in umpteen number of judgments that only plaint averments must be looked into for rejection of plaint under Order VII Rule 11(a) or (d) or both. The case of plaintiff is that Karnataka State Servants (Determination of Age) Act, 1974 is not applicable to him as he is an employee of 8th respondent to which Karnataka State Civil Service Rules are not applicable. If Karnataka State Servants (Determination of Age) Act is not applicable, the remedy available to an aggrieved person is to file a suit only. The learned counsel for 8th respondent does not dispute this position of law. That being the case the trial Court should not have hastened to reject the plaint. After recording evidence the court below may take any decision, but entertaining an application under Order VII Rule 11(d) does not appear to be proper. Therefore, the impugned order is not sustainable. Consequently, appeal is allowed. Order dated 19.02.2018 on I.A.No.6 is set aside. Suit is restored.
The parties shall appear before the trial Court on 04.04.2019.
Sd/- JUDGE NS