Final Order 1

Order Details: Copy of Judgment
Pdf Text: 1 Judg in L.C.Suit No.2830 of 2019
MHCC010102322019
Presented on : 10-10-2019
Registered on : 04-11-2019
Decided on : 06-05-2023
Duration : 3 Ys, 6 Ms, 27 Ds
IN THE BOMBAY CITY CIVIL C0URT AT BOMBAY
L.C.SUIT NO.2830 OF 2019
Mr. Chandru Athimulan Fakir
Age:28 Years, Occ:Nil, R/at.Kaula
Bunder Zhopadpatti, New Tank
Bander Road, Mumbai:400 010. .. Plaintiff
V/s.
1 The M.C.G.M.,
G/South Ward,
Mumbai:400 013.
2) Administrative Officer,
“E” Ward(BMC), Shaikh
Hafizuddin Marg, Byculla,
Mumbai:400 027. .. Defendant
Appearance:
Adv. Anand Dubey for plaintiff.
Adv. Smt. Vyavahare with Adv.Smt. Rawade for defendants/MCGM.
CORAM : HER HONOUR ADHOC JUDGE
SMT. A.H. KASHIKAR
CITY CIVIL COURT, GR. BOMBAY
(C.R. NO.05).
DATE : 06/05/2023.
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2 Judg in L.C.Suit No.2830 of 2019
JUDGMENT
1 This is a suit for declaration.
2 The suit claim of plaintiff can be narrated in nutshell as
under:
The plaintiff’s name is Chandru Athimulan Fakir and he has
changed his name from name Chandrakant Athimulan Fakir vide
Maharashtra Gazette Notification No RNINo.MAHBH/2009/31874
dt.21/06/2018 to 27/06/2018. Plaintiff is entitled for the compensate
job in the place of his father at ‘E’ Ward of BMC, Mumbai. He
submitted all relevant papers to defendant No.2 which were required
for the job as demanded by the defendant No.2. Plaintiff is holding
birth certificate, ADHAAR Card, PAN Card etc. in his name having name
Chandru Athimulan Fakir. However, in the transfer certificate issued by
Government of Tamilnadu bearing Sr.No.386/07, it is wrongly written
as A Chandrakanth, Plaintiff tried to convince the office of defendant
No.1 and 2 that Chandru Athimulan Fakir and A Chandrakanth or
Chandrakant Athimulan Fakir is one and the same person. However,
they are not considering this fact. Defendant on dt.9/7/2019 had
passed order directing him to bring order from the concerned Court that
Chandrakant Athimulan Fakir and Chandru Athimulan Fakir is one and
the same person.
3 Plaintiff has reasonable apprehension that defendant will
not give him entitlement of compensate job and due procedure of law
will not be followed. Therefore, he is constrained to file this suit for
declaration that Chandrakant Athimulan Fakir and Chandru Athimulan
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Fakir is one and the same person.
4 Defendants appeared and filed written statement below
Ex.10. The crux of the written statement is narrated as below.
Plaintiff’s father i.e. Adimulan Fakira was in the
employment of SWM Department since dt.13/12/1984 and retired from
service on dt.1/11/2018. Plaintiff Chandrakant Athimulan Fakir
applied for employment in SWM Department as PT case of his father on
dt.10/7/2018 u/no.ACE/4415/SWM dt.10/7/2018 alongwith his
father's application u/no.ACE/4414/SWM dt.10/7/2018 Alongwith
documents. It is observed that name of plaintiff’s father in Provident
Fund Receipt, BMC I Card, PAN Card etc is different. Also the name of
plaintiff on his PAN Card, ADHAAR Card, School Leaving Certificate is
different. Hence, defendants had informed plaintiff’s father Adimulan
Fakira by letter dt.16/2/2019 about said difference and directed him to
submit authentic document. Legal department also gave opinion that
there is difference in the name of exemployee Shri.Adimulan Fakira as
well as in the name of present applicant. Hence, opined that applicant
should take appropriate order from the Court in respect of difference in
the name. Accordingly, letter was issued to the plaintiff dt.20/7/2019
directing him to get order from the competent Court.
5 Since the plaintiff’s name is different in the documents
produced by him, his claim for compensate job has yet not been
considered. Defendants are not in fault in doing this. Plaintiff failed to
give statutory notice U/s.527 of MMC Act to defendants prior to filing
of the suit. Hence, suit having not merit needs to be dismissed with
costs.
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6 From the facts and circumstances of the case, and material
placed on record, following issues arose for my determination and I
have given my findings thereon with reasons as below.
Sr.
No.
ISSUES FINDINGS.
1 Whether the plaintiff proves that
Chandrakant Athimulan Fakir
and Chandru Athimulan Fakir is
one and the same persons?
Yes.
2 Whether plaintiff is entitled for
relief of declaration as prayed?
Yes.
3 Whether suit is maintainable? Yes.
4 What order and decree? Suit is decreed as per
final orders.
REASONS
7 In order to establish the suit claim, plaintiff has examined
himself on affidavit of evidence below Ex.8. He has tendered following
documents:
1) True copy of Ration Card Ex.11
2) True copyof Maharashtra Gazette Notification
No.RNINo.MAHBH/2009/31874 dt.21/06/2018 to
27/06/2018 Ex.12,
3) True coy of Birth Certificate Ex.13,
4) True copy of ADHAAR Card Ex.14,
5) True copy of PAN Card Ex.15,
6) True copy of Transfer Certificate Ex.16
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8 Defendant has tendered evidence of its authorized officer
Shri.Gulabsing Jehara Gavit, Administrative Officer (SWM) in E Ward
below Ex.18. Defendant has produced following documents;
1) Copy of service record Ex.21
2) Copyof application dt.10/6/2018 alongwith documents
Ex.22,
3) Copy of letter dt.16/2/2019 Ex.23,
4) Copy of letter dt.24/6/2019 Ex.24,
5) Copy of opinion dt.09/07/2019 Ex.25,
6) Copy of letter dt.20/07/2019 Ex.26,
9 Adv. for plaintiff has argued that plaintiff is seeking relief
of declaration as he is in urgent need of job on compensate ground as
he is jobless for so many years. His family is fully dependent on him
and in case of change of name, he himself is not at fault. Advocate for
plaintiff, therefore, submitted that they have placed material documents
on record showing real name of the plaintiff which proves the fact that
Chandrakant Athimulan Fakir and Chandru Athimulan Fakir is one and
the same person. Hence, suit may be decreed.
10 Defendant’s advocate advanced argument that they have
raised objection because of difference in the name in the documents
produced by the plaintiff as well as documents produced by his father.
Orally it has been argued that orders of Court will be followed in the
interest of justice.
11 At this background, I have analysed evidences led by the
parties in order to get findings on the issues framed below Ex.7.
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AS TO ISSUE NO.1.
12 As stated above, plaintiff has come with the case that
Chandrakant Athimulan Fakir and Chandru Athimulan Fakir is one and
the same person. To support this pleadings, plaintiff has reuttered all
the facts pleaded in the plaint, in the affidavit evidence filed below
Ex.8. Alongwith affidavit of evidence, plaintiff produced true copy of
Ration Card Ex.11, copy of Maharashtra Gazette Notification Ex.12,
birth certificate below Ex.13, Copy of ADHAAR Card Ex.14, Copy of
PAN Card Ex.15, copy of transfer certificate Ex.16. In the Ration Card,
name of plaintiff is Chandru A. Fakir. Maharashtra Gazette shows that
from the name Chandrakant Athimulan Fakir, plaintiff has changed the
name to Chandru Athimulan Fakir since from the year 2018. Birth
certificate below Es.13 also shows the name as Chandru A. Fakir.
ADHAAR Card, PAN Card also shows the name of plaintiff as Chandru
A. Fakir. However, only in the transfer certificate, name of plaintiff is
shown as A. Chandrakant. All these documents are sufficient to show
that the name of plaintiff after change is Chandru A. Fakir. Defendant
has produced copy of service record of plaintiff’s father showing his
name as Adimulan Fakira. Application tendered by plaintiff is filed
below Ex.22 shows name Chandru A. Fakir. Obviously, there is change
in the name of plaintiff and name of plaintiff’s father in his service
record and therefore, defendant has rightly issued letter to plaintiff’s
father Adimulan Fakir to produce the documents showing correctness of
the applicant i.e. plaintiff. Reminder has also been given by the
defendant to plaintiff’s father and then Administrative Officer has
formed opinion vide Ex.25 to seek legal advice from the legal
department and the legal department vide Ex.26 has opined and
directed the father of the plaintiff to seek declaration from the
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competent Court.
13 Entire evidence recorded by the plaintiff and defendant
shows reason as to why plaintiff seeks assistance of Court. Record also
shows that defendants have not directly opposed the claim and
contention of the plaintiff. However, their difficulty is genuine that
unless and until they get confirmation that Chandrakant Athimulan
Fakir and Chandru Athimulan Fakir is one and the same person, they
cannot consider the claim application of plaintiff for compensate job.
14 I have gone through the documents produced by the
plaintiff and it is visible that the plaintiff has produced plenty of
documents showing his name as Chandru Athimulan Fakir though in
the earlier documents his name was Chandrakant Athimulan Fakir or A.
Chandrakant. Evidence is self sufficient to show that Chandrakant
Athimulan Fakir and Chandru Athimulan Fakir is one and the same
person.
15 Hence, considering discussion made above, I have arrived
at the conclusion that the plaintiff has successfully proved fact that
Chandrakant Athimulan Fakir and Chandru Athimulan Fakir is one and
the same person. Resultantly, I have answered issue No.1 in the
affirmative as ‘Yes’.
AS TO ISSUE NO.3.
16 Defendant has raised legal objection as to tenability of suit.
It is contended that plaintiff has not given statutory notice to the
defendant before filing of suit as required U/s.527 of MMC Act. Dispute
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is regarding employment of plaintiff. Therefore, this suit is not
maintainable before the Civil Court.
17 However, it is pertinent to note that in the suit itself,
plaintiff has contended that he has filed this suit in urgency and
therefore, notice U/s.527 of MMC Act is not given. The record shows
that defendant has communicated plaintiff’s father about change in
name on dt.20/7/2019 and the suit came to be filed on 10/10/2019.
Due to urgency, notice has not been given. Therefore, I hold that the
suit cannot be dismissed for want of statutory notice .
18 So far as the nature of suit is concerned, it appears from
the pledings that it is a declaratory suit seeking declaration as to status
of a person claiming that person Chandrakant Athimulan Fakir and
Chandru Athimulan Fakir is one and the same person. Plaintiff though
requires this declaration for service purpose, declaration as to the
effect of status of person cannot come within the purview of service
matter and therefore, suit cannot be tried before Industrial or Labour
Court. Since it is a suit for declaration as to the right and status of a
person, Civil Court has jurisdiction to try and entertain the same.
Therefore, I hold that present suit is maintainable before Civil Court.
Hence, in view of aforesaid discussion, I have answered issue No.3 in
the affirmative as ‘Yes’.
AS TO ISSUE NO.2:
19 Plaintiff sought declaration that Chandrakant Athimulan
Fakir and Chandru Athimulan Fakir is one and the same person.
Plaintiff has proved this fact by cogent and convincing evidence. Issue
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No.1 is decided in favour of the plaintiff and therefore, in view of
findings as to issue No.1, I hold that plaintiff is entitled for relief of
declaration as prayed for. Hence, I have answered issue No.2 in the
affirmative as ‘Yes’.
20 In view of affirmative findings as to issue Nos.1 to 3, I hold
that suit deserves to be decreed in the interest of justice. Hence, I
proceed to pass following order.
ORDER
1 Suit is decreed with costs.
2 It is hereby declared that Chandrakant Athimulan Fakir and
Chandru Athimulan Fakir is one and the same person.
3 Decree be drawn up accordingly.
Dt.06/05/2023.
(A.H.KASHIKAR)
ADHOC Judge, City Civil Court,
Gr.Mumbai.
Dictated on :06/05/2023.
Typed on :06/05/2023.
Signed on :10/05/2023.
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
10/05/2023 04.18 p.m. (Santosh B. Sawant )
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (With Court room
No.)
HHJ Smt. A.H. Kashikar
(C.R.No.05)
Date of Pronouncement of
JUDGMENT/ORDER
06/05/2023
JUDGMENT/ORDER signed by P.O.on 10/05/2023
JUDGMENT/ORDER uploaded on 10/05/2023
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