Final Order 1

Order Details: Copy of Judgment
Pdf Text: 1 Judgment in L.C.Suit No. 642-2019
MHCC010025232019
Received on : 5/3/2019
Registered on : 11/3/2019
Decided on : 24/9/2021
Duration : Y-2; M-6; D-19
Exhibit : 43.
CNR NO. : MHCC01-002523-2019
IN THE CITY CIVIL COURT FOR GREATER BOMBAY
AT BOMBAY
L.C. SUIT NO. 642 OF 2019
Mangesh Manohar Nagale ]
aged about 29 years, of Mumbai, ]
Indian Inhabitant, residing at Room No.10 ]
2nd floor, C Wing, Flat No.A-3, Municipal ]
Quartersm Ambedkar Road, Sardar Nagar-4]
Rawali Camp, Antop Hill, Mumbai- 400037.] ... Plaintiff.
Versus
The Mumbai Municipal Corporation ]
through Office of the Chief Accountant ]
(Finance)Municipal Corporation Head ]
Office, Annex Building, 4th floor, ]
Mahapalika Marg, Fort, Mumbai - 400 001. ] ... Defendant.
Coram : SHRI. K.P. KSHIRSAGAR
AD-HOC JUDGE
(Court Room No.05)
Date : 24th September, 2021.
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Mr. Kuber Wagale; Ld Advocate for plaintiff.
Mr. Amol Diwate; Ld Advocate for defendant.
Claim: For declaration.
J U D G M E N T
1. This is a suit for declaration. Plaintiff’s case in brief is as
under:-
Name of plaintiff is Mangesh Manohar Nagle and he is
known by the people by the same name. Adhar card, PAN card and
birth certificate of plaintiff bear the same name. Plaintiff was student
of Shri Gauridutt Mittal Vidyalaya, Sion, Mumbai and he had
appeared for his SSC examination through the said school. The
above school while forwarding the details of plaintiff made an error
of spelling in surname of plaintiff by spelling it as Nangale instead of
Nagale. Due to said error the SSC mark statement, SSC school
leaving certificate, HSC mark statement, HSC certificate, graduation
certificate, MSCIT certificate are having the same error in the
surname of plaintiff and surname of plaintiff is mentioned therein as
Nangale instead of Nagale. The plaintiff vide government gazette
dated 23 to 29 January 2014 got rectified his name.
2. The father of plaintiff i.e. Mr Manohar Narayan Nagale
was working in the office of Chief Accountant (Finance) of MCGM as
peon and he expired on 8/9/2017. After demise of his father plaintiff
applied to defendant for giving him employment in the place of his
father on compassionate ground. He had submitted declaration dated
25/11/2017 that Mr. Mangesh Manohar Nagale (correct name) and
Mr. Mangesh Manohar Nangale (incorrect name) is one and the same
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person and both the name belongs to the plaintiff. Inspite of the same
defendant vide letter dated 12/12/2018 directed plaintiff that due to
discrepancy in his surname in the educational documents he should
obtain order/decree from the competent civil court.
3. Mr. Mangesh Manohar Nagale and Mr. Mangesh
Manohar Nangale is one and the same person and correct name of
plaintiff is Mr. Mangesh Manohar Nagale. Therefore, plaintiff filed
the present suit for declaration that correct name of plaintiff is Mr.
Mangesh Manohar Nagale and Mr. Mangesh Manohar Nangale and
Mr. Mangesh Manohar Nagale is one and the same person.
4. Defendant resisted claim of plaintiff by filing written
statement vide Ex.6. Defendant denied all the adverse allegations
against it. It is the case of the defendant that Mr. Manohar Narayan
Nagale was working as peon in Chief Accountant (Finance)
department of MCGM and he expired on 18/9/2017. Thereafter, Mr.
Mangesh Manohar Nagale who is claiming to be son of Mr. Manohar
Narayan Nagale submitted his application on 17/10/2017 to Chief
Accountant (Finance) department of MCGM for giving employment
in MCGM along with the documents. In the scrutiny of documents it
was found that in the school leaving certificate and educational
documents his name was mentioned as Mangesh Manohar Nangale
instead of Nagale. The plaintiff had submitted copy of government
gazette in respect of change of name and affidavit-cum-declaration
stating that Mr. Mangesh Manohar Nagale and Mr. Mangesh Manohar
Nangale is one and the same person who made application to the
defendant for employment. In view of the legal opinion from the
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legal department and difference in the surname of the plaintiff in the
documents defendant vide its letter dated 12/12/2018 informed the
plaintiff to produce order/decree of the competent court that
Mangesh Manohar Nangale and Mangesh Manohar Nagale is one and
the same person. The plaintiff failed and neglected to give statutory
notice as required u/s. 527 of Mumbai Municipal Corporation Act.
Therefore, plaintiff is not entitled for any relief.
5. From the pleading of the parties, my Ld Predecessor cast
and recast issues. After hearing final argument this Court again
recast issues. Court has reproduced the recast issues below along
with its decision thereon for the reasons stated thereunder:-
Sr.
No. Issues Decision
1. Whether the plaintiff proves that Mr.
Mangesh Manohar Nagale and Mr. Mangesh
Manohar Nangale is one and same person
and his correct name is Mangesh Manohar
Nagale?
Proved
2. Whether the plaintiff is entitled for relief of
declaration, as prayed?
Yes.
3. What order and decree? As per final order.
R E A S O N S
6. In order to prove his claim plaintiff examined himself by
filing his affidavit of evidence and additional affidavit of evidence
vide Ex.8 and 30 respectively. The plaintiff also examined Mayur
Nagale as PW2 by filing his affidavit in lieu of examination in chief
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vide Ex.25. The plaintiff also relied upon various documents like
birth certificate Ex.10, Aadhar card Ex.11, PAN card Ex.12, caste
certificate Ex.13, statement of marks of SSC Ex.14, SSC certificate
Ex.15, school leaving certificate Ex.17, HSC certificate Ex.18,
graduation certificate Ex.19, MSCIT certificate Ex.20, true copy of
gazette publication Ex.21, copy of death certificate of plaintiff’s
father Ex.22, copy of affidavit cum declaration Ex.23, true copy of
letter issued by defendant to plaintiff Ex.24, marksheet of plaintiff of
junior KG, marksheet of plaintiff of 4th, 5th and 6th standard, exhibit
32 to 35 respectively, copy of birth certificate of PW2 Ex.27, copy of
Aadhar Card of PW2 Ex.28, copy of ration card Ex.29. and the
documents filed along with list of document Ex.42.
7. On the other hand in order to substantiate its defence
defendant examined Mr. Sanjay R. Toraskar, Deputy Chief
Accountant (JED) Incharge by filing his affidavit of evidence Ex.31.
The defendant also relied upon the documents at Annexure 1 Colly
Ex.36, document at Annexure 2 Colly Ex.37, document at Annexure
3 Colly Ex.38, document at Annexure 4 Colly Ex.40.
8. Heard Ld Advocate for plaintiff and defendant. Ld
Advocate for plaintiff vehemently argued that the correct name of
plaintiff is Mangesh Manohar Nagale and plaintiff’s school while
forwarding his documents committed error by spelling plaintiff’s
surname as Nangale instead of Nagale. So there is spelling mistake
in the plaintiff’s surname in educational documents. The defendant
itself informed plaintiff to obtain the declaration as sought in the
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present suit. It means that defendant denied the fact that the correct
name of plaintiff is Mangesh Manohar Nagale and Mangesh
Manohar Nangale and Mangesh Manohar Nagle is one and the same
person i.e. plaintiff. The documents corroborates the claim of
plaintiff. As the defendant itself informed plaintiff to obtain decree
of the competent court, defendant had notice of the plaintiff’s claim
and therefore, there was no necessity to issue notice prior to filing of
the suit. Therefore, the Ld Advocate for plaintiff submitted to decree
the suit.
9. On the other hand Ld Advocate for defendant argued
that plaintiff applied to the defendant for giving him employment on
compassionate ground and while scrutinizing documents submitted
along with the application it was found that there was difference in
the surname of plaintiff in the documents of his educational
qualification. Due to above discrepancy only defendant informed
plaintiff to obtain the decree of the competent court.
As to Issue No.1:-
10. In respect of fact in this issue plaintiff vide his affidavit
and additional affidavit in lieu of examination in chief Ex.8 and 30
deposed in accordance with the plaintiff’s claim. Mangesh- PW1 i.e.
plaintiff categorically deposed that his name is Mangesh Manohar
Nagale and he is known by the same name and his school Gauridutt
Mittal Vidyalaya, Sion, Mumbai while forwarding papers made error
in spelling of his surname by spelling it as Nangale instead of Nagale
and the said error was continued in his educational documents.
Mangesh Manohar Nagale and Mangesh Manohar Nangale is one
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and the same person i.e. himself and he had submitted affidavit-
cum-declaration to the defendant stating that Mangesh Manohar
Nagale (correct name) and Mangesh Manohar Nangale (incorrect
name)is one and the same person i.e. himself. The above testimony
of plaintiff has gone unchallenged. Moreover, Mayur (PW2) i.e.
brother of plaintiff also corroborated the above testimony of plaintiff.
The testimony of the plaintiff is also corroborated by the documents
i.e. birth certificate Ex.10, Aadhar card Ex.11, PAN card Ex.12, cast
certificate Ex.13, government gazette copy Ex.21, copy of affidavit-
cum-declaration Ex.23 and copy of marksheet of plaintiff at Ex.32 to
35. Moreover, the above testimony of plaintiff has remained
uncontroverted. It is also not defence of the defendant that Mangesh
Manohar Nagale is not correct name of plaintiff and Mangesh
Manohar Nangale and Mangesh Manohar Nagale are different
persons. Therefore, there is nothing on record so as to disbelieve the
testimony of plaintiff.
11. Considering the above discussion the facts of the case
and the matter on record court hold that plaintiff proved the fact by
preponderance of probability that his correct name is Mangesh
Manohar Nagale and Mangesh Manohar Nangale and Mangesh
Manohar Nagle is one and the same person i.e. plaintiff. Therefore,
issue No.1 is answered as proved.
As to Issue No.2:-
12. In view of affirmative finding as to issue No.1 plaintiff
proved the fact that his correct name is Mangesh Manohar Nagale
and Mangesh Manohar Nangale and Mangesh Manohar Nagale is the
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one and the same person i.e. plaintiff. The defendant admitted the
fact that by letter dated 12/12/2018 exhibit 24 it had informed to
the plaintiff to obtain order/decree from the competent court.
Defendant vide above letter had informed that the affidavit-cum-
declaration and the government gazette submitted by the plaintiff is
not sufficient for the removal of the discrepancies in surname of
plaintiff. It means that defendant denied the fact that correct name
of the plaintiff is Mangesh Manohar Nagale and Mangesh Manohar
Nangale and Mangesh Manohar Nagale is the one and the same
person i.e. plaintiff. Thus, it is clear that the defendant denied the
legal character of the plaintiff to which he is entitled. Moreover, from
the matter on record it is clear that defendant itself informed the
plaintiff to obtain the decree of competent civil court pertaining to
the relief as sought in the present suit. As such it is clear that
defendant was having knowledge of the claim made by the plaintiff
in the present suit prior to filing of the present suit and defendant
itself compelled the plaintiff to prefer the present suit. Therefore,
there appear no substance in the objection of defendant that for
want of notice u/s.527 of Mumbai Municipal Corporation Act the
suit is not maintainable.
13. Considering the above discussion and matter on record
this court hold that plaintiff is entitled for the relief of declaration
that his correct name is Mangesh Manohar Nagale and Mangesh
Manohar Nangale and Mangesh Manohar Nagale is the one and the
same person. Hence, issue No.2 is answered in affirmative.
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As to Issue No.3:-
14. In view of findings as to issue No.1 and 2 the suit
deserves to be decreed with costs. Therefore, in answer to issue No.3
court proceeds to pass following order:-
ORDER
1. Suit is decreed with costs.
2. It is hereby declared that correct name of plaintiff is Mr.
Mangesh Manohar Nagale. It is further declared that Mr.
Mangesh Manohar Nagale and Mr. Mangesh Manohar Nangale
is one and the same person.
3. Decree be drawn up accordingly.
(K.P. Kshirsagar)
Ad-Hoc Judge,
Date : 24/09/2021. City Civil Court, Mumbai.
Dictated on : 24/09/2021.
Checked by HHJ on : 27/09/2021.
Signed by HHJ on : 28/09/2021.
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
UPLOAD DATE AND TIME : 28/09/2021 at 01.30 p.m.
NAME OF STENOGRAPHER : Mrs. Shobha Shekhade
Name of the Judge (With Court
Room No.)
HHJ Shri. K.P. KSHIRSAGAR
C.R. No. 05
Date of Pronouncement of
JUDGMENT/ORDER
24/09/2021.
JUDGMENT/ORDER signed by
P.O. on
27/09/2021.
JUDGMENT/ORDER uploaded on 28/09/2021.
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