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2010 Supreme(HP) 1199
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
SURJIT SINGH, J.
Shashi Bala Bhalaik And Others - Appellant
Versus
State of H.P. And others - Respondent
Decided on : 13-07-2010
The main legal point established in the judgment is the interpretation of the Limitation Act, 1963, Article 58, and the requirement of evidence to prove paternity.
Headnote:
Limitation - Declaration of Paternity - Suit barred by limitation - Evidence and interpretation of documentary evidence - [Limitation] - [Declaration of Paternity] - [Limitation Act, 1963, Article 58] - The court held that the suit filed in 1989 was within time as the cause of action accrued in or around 1988 when the plaintiff came to know about his name being recorded as the father of respondent No. 4 in the educational qualification certificates.
Fact of the Case:
The plaintiff filed a suit for declaration that respondent No. 4 was not his son and for permanent prohibitory injunction restraining respondents from claiming respondent No. 4 as his son. The trial court decreed the suit, but the district court dismissed the appeal. The substantial questions of law were related to limitation and interpretation of evidence.
Finding of the Court:
The court found that the suit was not barred by limitation and that the evidence proved respondent No. 4 was not the son of the plaintiff. The court also rejected the arguments regarding the admissibility of documents and the substantial question of law raised by the respondents.
Issues: The issues included whether the suit was time-barred, whether the suit was bad for non-joinder of necessary parties, and the relief to be granted.
Ratio Decidendi: The court held that the suit was within time as the cause of action accrued when the plaintiff came to know about his name being recorded as the father of respondent No. 4 in the educational qualification certificates. The court also emphasized the lack of evidence to prove respondent No. 4 was the son of the plaintiff.
Final Decision: The appeal was accepted, and the judgments and decrees of the lower courts were set aside. The court decreed the suit, declaring that respondent No. 4 was not the son of the plaintiff and restraining him from claiming himself to be the son of the plaintiff.
JUDGMENT :
SURJIT SINGH, J.
1. This regular second appeal by the legal representatives of Devi Singh, original plaintiff, is directed against the judgment and decree dated 28.4.1999, of learned Additional District Judge, whereby, dismissing the appeal of appellants-plaintiffs, decree dated 22.6.1994 of learned trial Court, dismissing appellants' suit, has been upheld.
2. Appeal was admitted on the following substantial questions of law:
1. Whether the courts below have erred in holding that the suit of the appellants-plaintiffs is barred by limitation?
2. Whether the courts below have mis-read and misinterpreted the pleadings, evidence and more specially the documentary evidence Ex.P-3, Ex. P-5 and Ex.P-6 to come to the conclusion that defendant No. 4 is the son of deceased - plaintiff Devi Singh?
3. Facts, giving rise to the appeal and relevant for its disposal, may be noticed. Late Shri Devi Singh (hereinafter referred to as plaintiff) filed a suit for declaration that respondent No. 4, Rajesh Kumar, was not his son and that entries, showing him as his son, in his educational qualification certificates, were illegal, wrong and of no consequence qua him. By way of further relief, decree of permanent prohibitory injunction, restraining respondents - defendants No. 4 and 5, from claiming that respondent No. 4 was son of the plaintiff, was sought.
4. It was pleaded that respondent No. 5 Kaushalya Devi, was married to one Rama Nand, who died in the year 1944. Said Rama Nand was a uterine brother of the plaintiff. Soon after the death of Rama Nand, plaintiff got employment in a government office and remained posted at Rampur up to 1947 and thereafter, he was posted in the Secretariat at Shimla. In the year 1964, respondent No. 4, Rajesh Kumar, was born to respondent No. 5 Kaushalya Devi. She was a widow at that time. She manipulated to get Rajesh Kumar entered as son of the plaintiff in the record maintained by Panchayat. On coming to know about the wrong entry, plaintiff wrote to Director, Health Services and a direction was issued by the Director, Health Services to Chief Medical Officer, Shimla, to correct entries, so as not to show plaintiff Devi Singh, as father of respondent No. 4. This order was passed in the year 1974.
5. In 1987 or 1988, when plaintiff came to know that in school records and in the University records, respondent No. 4 was being recorded as his son, he made representation to the Secretary (Education), with a copy among others, to the Registrar, H.P. University, requesting for correction of entries in the educational qualification certificates of respondent No. 4, so as to delete his name, as father of respondent No. 4. When no action was taken, he served a notice u/s 80 CPC, copy Ex.P-3, and filed a suit, on expiry of two months period. Relief claimed against respondent-defendant No. 1, State of H.P., respondent No. 2, Registrar, H.P. University and respondent No. 3, Board of School of Education, is that a decree of mandatory injunction be passed, directing them to correct entries in the school and University certificates of respondent No. 4, so that name of plaintiff, as father of respondent No. 4, is deleted.
6. Suit was contested by defendants Nos. 1, 4 and 5. It was stated that the suit was barred by limitation. On merits, it was stated that on the death of Rama Nand, husband of respondent No. 5, Kaushalya Devi, according to custom of the area, started living with plaintiff, as his wife, along with other wife of plaintiff, and both of them lived under the same roof with plaintiff Devi Singh, and respondent No. 4 was born, as a result of coitus between the plaintiff and respondent No. 5. It was stated that entry in Panchayat record, showing respondent No. 4, as son of plaintiff had been got incorporated, with plaintiff's consent and similarly, in the school and other educational institutions records, plaintiff's name was recorded as father of respondent No. 4, with his consent. Plea of non joinder of necessar
