Final Order 2

Order Details: Copy of Judgment
Pdf Text: 1 Judgment in L.C.Suit No. 2451-2019
MHCC010090882019
Received on : 31/08/2019
Registered on : 11/09/2019
Decided on : 09/11/2021
Duration : Y-2, M-1, D-29.
Exhibit :
IN THE CITY CIVIL COURT FOR GREATER BOMBAY
AT BOMBAY
L.C. SUIT NO. 2451 OF 2019
Karuppayya Mani Rammayya ]
Aged 39 years, Indian Inhabitant ]
residing at Room No. 9/2 Nagewadi ]
P.L. Lokhande Marg, Chembur, ]
Mumbai- 400 089. ] ... Plaintiff.
Versus
1) The Municipal Corporation of ]
Greater Mumbai,a body corporate ]
incorporated under the provisions ]
of Bombay Municipal Corporation ]
Act, 1888 as amended, having office ]
at Mahapalika building, Mahapalika ]
Marg, Fort, Mumbai- 400 001. ]
2) The Dy. Superintendent, ]
Udyan Vibhag (Zone-1), Bombay ]
Municipal Corporation, having office ]
at E-Division office, 3rd floor, room ]
No.34, 10, Shaikh Hafizuddin Marg ]
Sakhali Street, Byculla, ]
Mumbai- 400 008. ] ... Defendants.
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2 Judgment in L.C.Suit No. 2451-2019
Coram : SHRI. K.P. KSHIRSAGAR.
Judge & Addl. Sessions Judge
(Court Room No.05)
Date : 9th NOVEMBER, 2021.
Appearance:
Shri. S. S. Lanke; Ld Advocate for plaintiff.
Smt. Vidya Vyavahare; Ld Advocate for defendant.
Claim: For declaration and
mandatory injunction.
J U D G M E N T
1. This is a suit for declaration and mandatory injunction.
Plaintiff’s case in brief is as under:-
Name of plaintiff is Karuppayya Mani Rammayya. His
name is correctly recorded in Aadhar card, PAN card, and ration card.
His mother Smt. Shantabai Mani Rammayya was working as sweeper
in the office of defendants and she retired on 28/2/2018. After the
retirement of his mother plaintiff applied to the defendants on
3/7/2018 for providing him employment on compassionate ground
in place of his retired mother. Sisters, brother, mother of plaintiff and
also his sister in law given declaration that they have no objection for
providing employment to the plaintiff on compassionate ground in
place of his retired mother. However, when the plaintiff obtained his
school leaving certificate from Municipal Primary Tamil School,
Dharavi, he found that the school committed error in recording his
name and recorded his name as “M. Karuppaiah S/o K.Mani” instead
of Karuppayya Mani Rammayya. Plaintiff vide declaration and
government gazette published in March 2019 got rectified his name.
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3 Judgment in L.C.Suit No. 2451-2019
2. Inspite of same and submission of no objection of
plaintiff’s mother, brother and sisters defendants vide letter dtd.
6/7/2019 informed the plaintiff that due to discrepancy in his name
in the documents he should obtain order/decree from the competent
civil court.
3. M. Karuppaiah S/o K.Mani and Karuppayya Mani
Rammayya is one and the same person and correct spelling of name
of plaintiff is Karuppayya Mani Rammayya. Therefore, plaintiff filed
the present suit for declaration that M. Karuppaiah S/o K.Mani and
Karuppayya Mani Rammayya is one and the same person and for
mandatory injunction directing defendants to absorb plaintiff in their
services as a sweeper in place of his mother on compassionate
ground.
4. Defendants resisted the claim of plaintiff by filing
written statement vide Ex.2. Defendants did not dispute the fact that
Shantabai Mani Rammayya was serving as sweeper in their office and
she retired. Defendants did not dispute the fact that Shri. Karuppayya
Mani Rammayya submitted application to the defendants for
providing him employment as a sweeper in place of his retired
mother on compassionate ground. It is the defence of the defendants
that plaintiff applied for employment in BMC on preferential
treatment basis as per policy of BMC in place of his retired mother as
plaintiff had no other means of income. As per BMC policy
Karuppayya Mani Rammayya is eligible for the post of sweeper.
However, office of Divisional Labour and Welfare officer observed
discrepancy/difference in his name in school leaving certificate and
other documents like Aadhar card, PAN card, ration card.
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4 Judgment in L.C.Suit No. 2451-2019
5. The plaintiff had submitted copy of government gazette
in respect of change of name and affidavit-cum-declaration. It is
necessary to give proper legal and correct documents to show that
applicant is proper and legal heir of employee of the corporation. In
view of the opinion from the legal department and difference in the
name of the plaintiff in the documents defendants vide their letter
dated 6/7/2019 informed the plaintiff to produce order/decree of the
competent court pertaining to difference in his name. 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.
6. From the pleading of the parties, Ld Predecessor of this
court cast issues vide Ex.3. Court has reproduced those issues below
along with its decision thereon for the reasons stated thereunder:-
Sr.
No. Issues Decision
1. Does plaintiff prove that M.Karuppaiah S/o
K. Mani and Karuppayya Mani Rammayya are
one and same person?
Proved
2. Is plaintiff is entitled to relief of declaration,
as prayed?
Yes
3. Is plaintiff entitled to relief of mandatory
injunction as prayed?
No
4. What order and decree? As per final order.
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5 Judgment in L.C.Suit No. 2451-2019
R E A S O N S
7. In order to prove his claim plaintiff examined himself by
filing his affidavit of evidence vide Ex.4. The plaintiff also relied
upon various documents like original letter Ex.6, heir-ship certificate
Art.1, copy of declaration Ex.7, copy of application Ex.8, school
leaving certificate Ex.9, original PAN card Ex.10, original Aadhar
card Ex.11, copy of declaration Art.2, copy of declaration Ex.12,
ration card Ex.13, copy of declaration Ex.14, copy of affidavit of
Shantabai Mani Rammayya Ex.15, copy of no objection certificate
Ex.16, copy of Maharashtra State Gazette Art.3, copy of no objection
affidavit Ex.17, copy of indemnity bond Art.4 and original letter of
the defendants dtd.6/7/2019 Ex.18.
8. On the other hand in order to substantiate its defence
defendants examined Mr. Santosh Bhimji Sable by filing his affidavit
of evidence, Ex.20. The defendants also relied upon the documents
filed alongwith list of documents Ex.21.
9. Heard Ld Advocate for plaintiff and defendants. Ld
Advocate for plaintiff vehemently argued that the correct name of
plaintiff is Karuppayya Mani Rammayya and plaintiff’s school while
recording name of plaintiff committed error by recording plaintiff’s
name as M.Karuppaiah S/o K.Mani instead of Kruppayya Mani
Rammayya. So there is mistake in the plaintiff’s name in his school
leaving certificate. Plaintiff’s name is correctly recorded in the
documents like Aadhar card, PAN card and ration card. The
defendants informed plaintiff to obtain the declaration as sought in
the present suit. It means that defendants denied the fact that the
correct name of plaintiff is Karuppayya Mani Rammayya and
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6 Judgment in L.C.Suit No. 2451-2019
M.Karuppaiah S/o K.Mani and Karuppayya Mani Rammayya is one
and the same person i.e. plaintiff. The documents produced and
proved by plaintiff corroborates the claim of plaintiff. As the
defendants themselves informed plaintiff to obtain decree of the
competent court, defendants 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.
10. On the other hand Ld Advocate for defendants argued
that plaintiff applied to the defendants for giving him employment
on preferential treatment basis and while scrutinizing documents
submitted along with the application it was found that there was
difference in the name of plaintiff in the school leaving certificate
and the other documents like Aadhar card, PAN card and ration card.
Due to above discrepancy only defendants informed plaintiff to
obtain the decree of the competent court so that proper person
should get the employment.
As to Issue No.1:-
11. In respect of fact in this issue plaintiff vide his affidavit
in lieu of examination in chief Ex.4 deposed in accordance with the
his claim. Karuppayya- PW1 i.e. plaintiff categorically deposed that
his correct name is Karuppayya Mani Rammayya and in the school
leaving certificate his name is wrongly recorded as Karuppaiah
instead of Karuppayya. Karuppayya and Karuppaiah is one and the
same person. The above testimony of plaintiff has gone
unchallenged. The testimony of the plaintiff is also corroborated by
the documents i.e. original PAN card Ex.10, original Aadhar card
Ex.11, ration card Ex.13, copy of Maharashtra State Gazette Art.3,
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7 Judgment in L.C.Suit No. 2451-2019
copy of indemnity bond Art.4. Moreover, the above testimony of
plaintiff has remained uncontroverted. It is also not defence of the
defendants that Karuppayya Mani Rammayya is not correct name of
plaintiff and Karuppayya Mani Rammayya and M.Karuppaiah S/o
K.Mani are different persons. Moreover, date of birth of plaintiff as
per PAN card Ex.10 and school leaving certificate Ex.9 is 3/8/1980 .
Thus, as per both the above documents date of birth of Karuppayya
Mani Rammayya and M.Karuppaiah S/o K.Mani is same. The above
fact also substantiate the contention of the plaintiff. Therefore, there
is nothing on record so as to disbelieve the testimony of plaintiff.
12. 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 Karuppayya
Mani Rammayya and Karuppayya Mani Rammayya and
M.Karuppaiah S/o K.Mani is one and the same person i.e. plaintiff.
Therefore, issue No.1 is answered as proved.
As to Issue No.2:-
13. In view of affirmative finding as to issue No.1 plaintiff
proved the fact that his correct name is Karuppayya Mani Rammayya
and Karuppayya Mani Rammayya and M.Karuppaiah S/o K.Mani is
the one and the same person. The defendants admitted the fact that
by letter dated 6/7/2019 Ex.18 it had informed to the plaintiff to
obtain order/decree from the competent court. Defendants vide
above letter had informed that the affidavit-cum-declaration and the
government gazette submitted by the plaintiff cannot be considered
for the removal of the discrepancies in the name of plaintiff. It
means that defendants denied the fact that correct name of the
plaintiff is Karuppayya Mani Rammayya and Karuppayya Mani
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8 Judgment in L.C.Suit No. 2451-2019
Rammayya and M.Karuppaiah S/o K.Mani is the one and the same
person i.e. plaintiff. Thus, it is clear that the defendants denied the
legal character of the plaintiff to which he is entitled. Moreover, from
the matter on record it is clear that defendants themselves informed
the plaintiff to obtain the decree of competent civil court pertaining
to the discrepancies in his name. As such it is clear that defendants
were having knowledge of the claim made by the plaintiff in the
present suit prior to filing of the present suit and defendants
themselves compelled the plaintiff to prefer the present suit.
Therefore, there appear no substance in the objection of defendants
that for want of notice u/s.527 of Mumbai Municipal Corporation
Act the suit is not maintainable.
14. 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 Karuppayya Mani Rammayya and Karuppayya
Mani Rammayya and M.Karuppaiah S/o K.Mani is the one and the
same person. Hence, issue No.2 is answered in affirmative.
As to Issue No.3:-
15. In the present matter plaintiff also prayed for the decree of
mandatory injunction directing the defendants to absorb the plaintiff
in their services as sweeper in place of his mother on compassionate
ground. Employment on compassionate ground or preferential
treatment is not a vested legal right and it is in the form of
concession. Therefore, plaintiff is not having a vested right of
employment on compassionate ground in place of his mother. As
such there exists no obligation on the part of defendants to absorb
the plaintiff in their services as a sweeper on compassionate ground.
As such there is no question to enforce said obligation by mandatory
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9 Judgment in L.C.Suit No. 2451-2019
injunction.
16. Considering above discussion and matter on record court hold
that, plaintiff is not entitled to the relief of mandatory injunction as
prayed. Therefore, issue no. 03 is answered in negative.
As to Issue no. 04.
17. In view of affirmative findings as to issue No.01 and 02 and
negative finding of issue no. 03, the suit deserves to be partly
decreed with proportionate costs. Therefore, in answer to issue No.4
court proceeds to pass following order:-
ORDER
1. Suit is partly decreed with proportionate costs.
2. It is hereby declared that correct name of plaintiff is
Karuppayya Mani Rammayya and Karuppayya Mani
Rammayya and M. Karuppaiah S/o. K. Mani is one and same
person.
3. Decree be drawn up accordingly.
(K.P. Kshirsagar)
Judge,
Date : 09/11/2021. City Civil Court,
Mumbai.
Dictated & directly typed on : 9/11/2021.
Checked by HHJ on : 09/11/2021.
Signed by HHJ on : 09/11/2021.
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10 Judgment in L.C.Suit No. 2451-2019
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
15/11/2021 Mrs. S.A. Shekade.
Name of the Judge (With Court room
no.)
SHRI K.P. Kshirsagar (Court Room
No.05)
Date of Pronouncement of
JUDGMENT/ORDER
9/11/2021
JUDGMENT/ORDER signed by P.O.
on
9/11/2021
JUDGMENT/ORDER uploaded on 15/11/2021
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