JUDGMENT :

This second appeal is in challenge of the judgment and decree dated 16.3.2004 and 3.4.2004, respectively, passed by the learned District Judge, Koraput, Jeypore in T.A. No. 7 of 2002 reversing the ex parte judgment and decree dated 8.3.2002 and 27.3.2002 respectively, passed by the learned Civil Judge (Junior Division) Jeypore in T.S. No. 21 of 2001.

2. In this appeal, the appellant is the defendant before the learned trial Court and the respondent is the plaintiff. Learned trial Court dismissed the suit ex parte refusing to declare that the plaintiff's correct date of birth is 10.12.48 in order to grant the consequential relief of correction of date of birth in plaintiff's service book. The plaintiff took the stand that on 1.9.1964 he was appointed as a Driver in Balimela Dam Project. At the time of his appointment, his employer did not take any certificate from him for such appointment. In October 2000, when the plaintiff took his service book, he came to know that his date of birth was wrongly noted as 8.3.1944 instead of 10.12.1948. Having come to know this mistake, he applied to the defendant for correction of his date of birth through the Sub-Divisional Officer under whom he was working. The application was forwarded to the Executive Engineer, who without forwarding the application to the Chief Engineer (defendant), rejected the same on the ground that it was not made in accordance with Rule 65 of OGFR Vol. I. Hence the suit.

3. The defendant, though received summons in the suit, did not appear before the learned trial Court. So, the learned Trial Court proceeded ex parte. The plaintiff examined himself as the sole witness and proved documents marked Ext. 1 to 5. Learned trial Court analyzed the evidence and dismissed the suit observing inter alia, that in the absence of proof of the concerned entry in the School Admission Register, the transfer certificate (Ext. 1) cannot be relied on, more so when the authority who issued the same has not been examined as a witness. It is also held by the Trial Court that plaintiff's stand, that his correct date of birth is 10.12.1948 is not acceptable inasmuch as if that were to be accepted then the plaintiff must have entered into the service when he was below 16 years which is not permissible under the Orissa Service Code. The learned Trial Court further held that plaintiff's suit against the defendant, a public servant, without giving notice under Section 80 of the Civil Procedure Code (C.P.C.) is not maintainable.

4. Being aggrieved, the plaintiff preferred an appeal before the learned District Judge. On being served with appeal notice, the defendant appeared in the appeal through the Government pleader, Jeypore and participated in the proceeding. Learned lower appellate Court is of the opinion that the burden lies on the defendant to prove by reliable evidence that the date of birth mentioned in the service book is correct and the date of birth reflected in the transfer certificate (Ext. 1) is incorrect. On the non-compliance of Section 80 C.P.C. it is held that strict compliance of Section 80 C.P.C. is not necessary in the present case inasmuch as the application made by the plaintiff for correction of his date of birth virtually amounts to a notice in the suit. In so far as contravention of the Orissa Service Code regarding the minimum age for entering into service is concerned, it was held that such minor technical defect which does not affect the merit of the case should not be a ground to dismiss the suit.

5. With such observations, the learned lower appellate Court set aside the ex parte decree and decreed the suit declaring 10.12.1948 to be plaintiff's correct date of birth and directed the defendant to correct the date of birth .in the plaintiff's service book.

6. In this second appeal, the reversing judgment is challenged on the grounds that the learned lower appellate Court should not have shifted the onus to the defendant to prove that the disputed entry in the se