Supreme Court Guidelines for Speedy Disposal of Execution Of Decree

Supreme Court Guidelines for Speedy Disposal of Execution of Decree

 All Courts dealing with Suits and Execution Proceedings shall

Mandatorily follow the below-mentioned directions:

1. In suits relating to delivery of possession, the court

must examine the parties to the suit under Order X in

relation to third  party interest and further exercise the power under

Order XI Rule 14 asking parties to disclose and produce

documents, upon oath, which are in possession of the parties

including declaration pertaining to third party interest in

such properties.

3. In appropriate cases, where the possession is not in

dispute and not a question of fact for adjudication before the

Court, the Court may appoint Commissioner to assess the

accurate description and status of the property.

4. After examination of parties under Order X or

production of documents under Order XI or receipt of

commission report, the Court must add all necessary or

proper parties to the suit, so as to avoid multiplicity of

proceedings and also make such joinder of cause of action in

the same suit.

5. Under Order XL Rule 1 of CPC, a Court Receiver can be

appointed to monitor the status of the property in question

as custodia legis for proper adjudication of the matter.

6. The Court must, before passing the decree,

pertaining to

7. delivery of possession of a property ensure that the

decree is unambiguous so as to not only contain clear

description of the property but also having regard to the

status of the property.

8. In a money suit, the Court must invariably resort to

Order XXI Rule 11, ensuring immediate execution of decree

for payment of money on oral application.

9. In a suit for payment of money, before settlement of

issues, the defendant may be required to disclose his assets

on oath, to the extent that he is being made liable in a suit.

The Court may further, at any stage, in appropriate cases

during the pendency of suit, using powers under Section 151

CPC, demand security to ensure satisfaction of any decree.

10. The Court exercising jurisdiction under Section 47 or

under Order XXI of CPC, must not issue notice on an

application of third-party claiming rights in a mechanical

manner. Further, the Court should refrain from entertaining

any such application(s) that has already been considered by

the Court while adjudicating the suit or which raises any

such issue which otherwise could have been raised and

determined during adjudication of suit if due diligence was

exercised by the applicant.

11. The Court should allow taking of evidence during the

execution proceedings only in exceptional and rare cases

where the question of fact could not be decided by resorting

to any other expeditious method like appointment of

Commissioner or calling for electronic materials including

photographs or video with affidavits.

12. The Court must in appropriate cases where it finds the

objection or resistance or claim to be frivolous or mala fide,

resort to Sub-rule (2) of Rule 98 of Order XXI as well as grant

compensatory costs in accordance with Section 35A.

13. Under section 60 of CPC the term “…in name of the

judgment- debtor or by another person in trust for him or on

his behalf” should be read liberally to incorporate any other

person from whom he may have the ability to derive share,

profit or property.

14. The Executing Court must dispose of the Execution

Proceedings within six months from the date of filing, which

may be extended only by recording reasons in writing for

such delay.

15. The Executing Court may on satisfaction of the fact that

it is not possible to execute the decree without police

assistance, direct the concerned Police Station to provide

police assistance to such officials who are working towards

execution of the decree. Further, in case an offence against

the public servant while discharging his duties is brought to

the knowledge of the Court, the same must be dealt

stringently in accordance with law.

16. The Judicial Academies must prepare manuals and

ensure continuous training through appropriate mediums to

the Court personnel/staff executing the warrants, carrying

out attachment and sale and any other official duties for

executing orders issued by the Executing Courts.

43. We further direct all the High Courts to reconsider and

update all the Rules relating to Execution of Decrees, made under

exercise of its powers under Article 227 of the Constitution of

India and Section 122 of CPC, within one year of the date of this

Order. The High Courts must ensure that the Rules are in

consonance with CPC and the above directions, with an

endeavour to expedite the process of execution with the use of

Information Technology tools. Until such time these Rules are

brought into existence, the above directions shall remain

enforceable.

SC Issues Guidelines for Cheque Bounce Cases - Asks Govt To Amend Laws

The SC said that over the years, Courts have been inundated with Cheque Bounce Complaints which could not be decided within a reasonable period and “this gargantuan pendency of complaints … has had an adverse effect in disposal of other criminal cases.”

To ensure speedy disposal of more than 35 lakh Cheque Bounce Cases pending in Various Courts, the Supreme Court on Friday gave a number of directions, including asking the Government to amend the laws to allow clubbing of multiple trials in cases filed for a same transaction against anyone.

To avoid multiplicity of proceedings and to reduce the burden on the Docket of the Criminal Courts, a 5-Judge Constitution Bench led by Chief Justice S.A. Bobde recommended that “Suitable Amendments” be made in the Negotiable Instruments Act for provision of one trial against a person for multiple offences under Section 138 committed within a period of 12 months.

Of the 2.31 crore pending criminal cases, 35.16 lakh relate to dishonoured cheques. The reason for the backlog of cases, according to amici curiae, is that while there is a steady increase in complaints every year, the rate of disposal does not match the rate of institution of complaints.

The SC said that over the years, courts have been inundated with cheque bounce complaints which could not be decided within a reasonable period and “this gargantuan pendency of complaints … has had an adverse effect in disposal of other criminal cases.”

Stating that undue delay in service of summons is the main cause for the disproportionate accumulation of complaints under Section 138 before the courts, the judges requested the high courts to issue practice directions to the trial courts to treat service of summons in one complaint pertaining to a transaction as deemed service for all complaints filed before the same court relating to dishonour of cheques issued as part of the transaction.

It directed that the HCs may issue practice directions to the magistrates to record cogent and sufficient reasons before converting summary trial to summons trial in exercise of power under the second proviso to Section 143 of the Act. Even the examination of witnesses should be permitted on affidavit and only in exceptional cases, the magistrate may examine the witnesses personally, it said.

On March 5 last year, the top court had registered a suo motu case and decided to evolve a concerted and coordinated mechanism for speedy disposal of such cases. It had appointed senior advocate Siddharth Luthra and advocate K Parameshwar as amici curiae.

The SC had sought the Centre’s view on creating additional courts to deal with cheque bounce cases. However, the Centre, through the Department of Financial Services (DFS), had dismissed the suggestion. Instead of setting up additional special courts, the DFS had suggested measures like capping the maximum number of hearings.

Can A Court Issue A Non-Bailable Warrant If A Summons Were Issued On WhatsApp

 

Can a court issue a non-bailable warrant against the accused in a criminal case if a summons were issued to him on Whatsapp?

 The Crl.M.C is filed aggrieved by the non-bailable warrant issued against the petitioner. The specific case put forth by the petitioner is that the summons, alleged to have been sent through WhatsApp to his mobile phone, had never reached him, as he has not downloaded the WhatsApp application on his phone.

4. The above provisions do not provide for service of summons

through WhatsApp. No doubt, the revolutionary changes in the field of communication calls for a more pragmatic approach regarding the mode and manner of service of summons.

6. In the case at hand, the summons is stated to have been

issued through WhatsApp, which is not an accepted mode of service.

As such, the court should not have issued non-bailable warrant against the petitioner on the assumption that he had failed to appear after receiving the summons.

IN THE HIGH COURT OF KERALA AT ERNAKULAM

ANOOP JACOB Vs STATE OF KERALA

Crl.M.C.No.1658 of 2021

Dated this the 9th day of April, 2021

PRESENT

 MR.JUSTICE V.G.ARUN

The petitioner is the 1st accused in C.C.No.134 of 2021 on the

files of the Additional Chief Judicial Magistrate (Special Court for Cases

related to MPs/MLAs), Ernakulam. The offences alleged are under

Sections 143, 147, 149, 269, 271 and 188 of IPC, Section 118(e) of the

Kerala Police Act and Sections 4(2)(a), 4(2)(e) and 5 of the Kerala

Epidemic Disease Ordinance, 2020. The Crl.M.C is filed aggrieved by

the non-bailable warrant issued against the petitioner. The specific

case put forth by the petitioner is that the summons, alleged to have

been sent through WhatsApp to his mobile phone, had never reached

him, as he has not downloaded the WhatsApp application on his

phone.

2. In view of the contentions, it may be apposite to have a look at

Section 62 of Cr.P.C, dealing with mode of service of summons;

“62. Summons how served.

(1) Every summons shall be served by a police officer, or

subject to such rules as the State Government may make in this

behalf, by an officer of the Court issuing it or other public

servant.

(2) The summons shall, if practicable, be served personally

on the person summoned, by delivering or tendering to him one

of the duplicates of the summons.

(3) Every person on whom a summons is so served shall, if

so required by the serving officer, sign a receipt therefor on the

back of the other duplicate.”

3. Going by Section 65 of Cr.P.C, if service could not be effected

as provided under Section 62, the serving officer shall affix one of the

duplicates of the summons to the conspicuous part of the house or

homestead in which the person summoned ordinarily resides.

Thereafter, the court should make such enquiries as it thinks fit and

either declare the summons to have been duly served or order fresh

service in such manner as it considers proper. As per Rule 7 of the

Criminal Rules of Practice, Kerala, summons issued to the accused and

witnesses shall ordinarily be signed by the Chief Ministerial Officer of

the Court and the words “By order of the Court” shall invariably be

prefixed to the signature of the Ministerial Officer.

4. The above provisions do not provide for service of summons

through WhatsApp. No doubt, the revolutionary changes in the field of communication calls for a more pragmatic approach regarding the mode and manner of service of summons. In this regard, it may be

pertinent to note the insertion of Section 144 in the Negotiable

Instruments Act (for short, 'the Act') for the purpose of overcoming the

delay in serving summons on the accused in complaints under Section

138 of the Act. Section 144, providing for service of summons by

speed post or by approved courier service, was inserted by Act 55 of

2002. In Indian Banks Assn. v. Union of India [(2014) 5 SCC 590],

the Honourable Supreme Court alerted the Magistrates about the need to adopt a pragmatic and realistic approach while issuing process and

had directed to issue summons by post as well as by email. Later, in

Meters & Instruments (P) Ltd. v. Kanchan Mehta [(2018) 1 SCC

560], the Apex Court observed that in complaints under Section 138, it may be desirable for the complainant to give his bank account number and if possible, the email ID of the accused. Recently, in Makwana Mangaldas Tulsidas V. State of Gujarat [(2020) 4 SCC 695], it has

been held that the Banks are bound to provide the requisite details by

developing an information sharing mechanism, where the Banks can

share all the requisite available details of the accused, who is the

account holder, with the complainant and the Police for the purpose of

execution of process.

6. In the case at hand, the summons is stated to have been

issued through WhatsApp, which is not an accepted mode of service.

As such, the court should not have issued non-bailable warrant against the petitioner on the assumption that he had failed to appear after receiving the summons.

In the result, the Crl.M.C is disposed of permitting the petitioner

to appear before the Additional Chief Judicial Magistrate's Court

(Special Court for Cases related to MPs/MLAs), Ernakulam in

C.C.No.134 of 2021 and to move an application for bail. In such event, the bail application shall be considered on the same day, deeming the petitioner to have appeared on summons. In order to provide an opportunity for the petitioner to appear before the court below and seek bail, the non-bailable warrant issued against him shall be kept in abeyance for a period of four weeks.

Whether Trial Court Can Stay Execution of Decree Till Disposal of Appeal

 

Whether trial court can stay execution of decree till disposal of appeal?

 As per Ext.P11, the court below stayed the execution petition till the disposal of the appeal. The application was filed under Order 21 Rule 26 CPC. It is settled law that Order 21 Rule 26 CPC is applicable only to transfer decree. The proper provision is Order 41 Rule 5(2). It is clear that the power of the execution court to stay the execution is only upto to the stage of filing the appeal. In this case, the appeal was already OP(C).No.52 OF 2020 filed. Since the appeal was already filed, the court below had no jurisdiction to stay the execution petition in the absence of any order from the appellate court. In view of the above, Ext.P11 cannot be also sustained.

Kerala High Court

Syamala vs Thapodhanan on 22 January, 2020

Coram:  MR. JUSTICE B.SUDHEENDRA KUMAR

In this original petition, Exts.P8 and P11 are under challenge.

2. Heard.

3. The petitioner is the decree holder, who filed E.A.No.173 of 2018 in E.P.No.55 of 2018 in O.S.No.543 of 2010 praying for issuing a direction to the Station House Officer concerned to protect the possession of the petitioner over the decree schedule property and also for taking prosecution for the violation of the decree.

4. The court below passed Ext.P8 order, dismissing the application stating that if the order is violated, the petitioner can approach the court by filing OP(C).No.52 OF 2020 proper application. It appears that the court below did not consider as to whether the decree was already violated and as to whether the police assistance sought for by the decree holder had to be granted or not, in accordance with law. Since the court below did not consider the said aspects, Ext.P8 is not sustainable.

5. As per Ext.P11, the court below stayed the execution petition till the disposal of the appeal. The application was filed under Order 21 Rule 26 CPC. It is settled law that Order 21 Rule 26 CPC is applicable only to transfer decree. The proper provision is Order 41 Rule 5(2). It is clear that the power of the execution court to stay the execution is only upto to the stage of filing the appeal. In this case, the appeal was already OP(C).No.52 OF 2020 filed. Since the appeal was already filed, the court below had no jurisdiction to stay the execution petition in the absence of any order from the appellate court. In view of the above, Ext.P11 cannot be also sustained.

In the result, this Original Petition stands allowed, setting aside Exts.P8 and P11 and the court below is directed to pass orders afresh on E.A.No.173/2018, affording reasonable opportunity of hearing to both sides, in accordance with law, as expeditiously as possible and at any rate within one month from the date of receipt/production of a copy of this judgment.

Whether Judgment Delivered By The Court Without Hearing Another Side Is Binding As Precedent?

 

Friday, 16 April 2021

Whether Judgment delivered by the court without hearing another side / exparte is binding as precedent?

Also, in Municipal Corpn. of Delhi v. Gurnam Kaur,

(1989) 1 SCC 101 at 110, this Court stated:

“11. Pronouncements of law, which are not

part of the ratio decidendi are classed as

obiter dicta and are not authoritative. With all

respect to the learned Judge who passed the

order in Jamna Das case [Writ Petitions Nos.

981-82 of 1984] and to the learned Judge who

agreed with him, we cannot concede that this

Court is bound to follow it. It was delivered

without argument, without reference to the

relevant provisions of the Act conferring

express power on the Municipal Corporation

to direct removal of encroachments from any

public place like pavements or public streets,

and without any citation of authority.

Accordingly, we do not propose to uphold the

decision of the High Court because, it seems

to us that it is wrong in principle and cannot be

justified by the terms of the relevant

provisions. A decision should be treated as

given per incuriam when it is given in

ignorance of the terms of a statute or of a rule

having the force of a statute. So far as the

order shows, no argument was addressed to

the court on the question whether or not any

direction could properly be made compelling

the Municipal Corporation to construct a stall

at the pitching site of a pavement squatter.”

(Emphasis Supplied)

It is clear, therefore, that where a matter is not argued at

all by the respondent, and the judgment is one of

reversal, it would be hazardous to state that the law can

be declared on an ex parte appraisal of the facts and the

law, as demonstrated before the Court by the appellant’s

counsel alone. That apart, where there is a detailed

judgment of the High Court dealing with several

authorities, and it is reversed in a cryptic fashion without

dealing with any of them, the per incuriam doctrine kicks

in, and the judgment loses binding force, because of the

manner in which it deals with the proposition of law in

question. Also, the ratio decidendi of a judgment is the

principle of law adopted having regard to the line of

reasoning of the Judge which alone binds in future cases.

Such principle can only be laid down after a discussion of

the relevant provisions and the case law on the subject. If

only one side is heard and a judgment is reversed,

without any line of reasoning, and certain conclusions

alone are arrived at, without any reference to any case

law, it would be difficult to hold that such a judgment

would be binding upon us and that we would have to

follow it. In the circumstances, we are of the opinion that

the judgment in Yasangi Venkateswara Rao (supra)

cannot deter us in our task of laying down the law on the

subject. 

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL ORIGINAL JURISDICTION

WRIT PETITION (CIVIL) NO. 134 OF 2013

JAYANT VERMA Vs  UNION OF INDIA 

Author: R.F. NARIMAN, J.

Dated: February 16, 2018.

Citation: 2018(4) SCC 743

Landmark Supreme Court Judgment on Framing of Issues

 

Sunday, 28 March 2021

Landmark Supreme Court Judgment on framing of issues

 The stage of framing the issues is an important one inasmuch as on that day the scope of the trial is determined by laying the path on which the trial shall proceed excluding diversions and departures therefrom. The date fixed for settlement of issues is, therefore, a date fixed for hearing. The real dispute between the parties is determined, the area of conflict is narrowed and the concave mirror held by the court reflecting the pleadings of the parties pinpoints into issues the disputes on which the two sides differ. The correct decision of civil lis largely depends on correct framing of issues, correctly determining the real points in controversy which need to be decided. The scheme of Order XIV of the Code of Civil Procedure dealing with settlement of issues shows that an issue arises when a material proposition of fact or law is affirmed by one party and denied by the other. Each material proposition affirmed by one party and denied by other should form the subject of a distinct issue. An obligation is cast on the court to read the plaint/petition and the written statement/counter, if any, and then determine with the assistance of the learned counsel for the parties, the material propositions of fact or of law on which the parties are at variance. The issues shall be framed and recorded on which the decision of the case shall depend. The parties and their counsel are bound to assist the court in the process of framing of issues. Duty of the counsel does not belittle the primary obligation cast on the court. It is for the Presiding Judge to exert himself so as to frame sufficiently expressive issues. An omission to frame proper issues may be a ground for remanding the case for retrial subject to prejudice having been shown to have resulted by the omission. The petition may be disposed of at the first hearing if it appears that the parties are not at issue on any material question of law or of fact and the court may at once pronounce the judgment. If the parties are at issue on some questions of law or of fact, the suit or petition shall be fixed for trial calling upon the parties to adduce evidence on issues of fact. The evidence shall be confined to issues and the pleadings. No evidence on controversies not covered by issues and the pleadings, shall normally be admitted, for each party leads evidence in support of issues the burden of proving which lies on him. The object of an issue is to tie down the evidence and arguments and decision to a particular question so that there may be no doubt on what the dispute is. The judgment, then proceeding issue-wise would be able to tell precisely how the dispute was decided.

20. In the case at hand, each one of the corrupt practices alleged by the petitioner and denied by the defendant, should have formed the subject matter of a distinct issue sufficiently expressive of the material proposition of fact and of law arising from the pleadings. Failure to do so has resulted in an utter confusion prevailing throughout the trial and also in the judgment of the High Court as was demonstrated by the learned counsel for the appellant during the hearing of the appeal attacking the findings arrived at by High Court. On some of the points in dispute the High Court has observed that no proof of the said fact (alleged in the petition) was necessary so far as the petitioner is concerned because there was no specific denial of the allegations made or as there was no answer by the defendant to the allegations of the petitioner on points of substance. The contradiction with which the trial and the judgment suffer is writ large. If a material proposition of fact or law alleged in the petition was not denied or was not specifically denied in the written statement within the meaning of Rule 5 of Order 8 of C.P.C. and such tenor of the written statement had persuaded the learned designated Election Judge in forming an opinion (belatedly while writing the judgment) that there was an admission by necessary implication for want of denial or specific denial then there was no need of framing an issue and there was no need for recording of evidence on those issues. Valuable time of the court would have been saved from being wasted in recording evidence on such averments in pleadings as were not in issue for want of traverse, if it was so!

Supreme Court of India

Makhan Lal Bangal vs Manas Bhunia & Ors. on 3 January, 2001

Bench: R.C.Lahoti, S.V.Patil

Equivalent citations: AIR 2001 SC 490, JT 2001 (1) SC 252, 2001 (1) SCALE 11.

Whether Registrar of Birth can correct the Applicant's Surname and Date of Birth in his Birth Certificate

 

Tuesday, 30 March 2021

Whether registrar of birth can correct the applicant's surname and date of birth in his birth certificate?

The petitioner is facing

problem for getting Green Card from the USA Authorities because of the discrepancies in the date of birth and surname appearing in the said register and the other records pointed out above.

7) Rule 11(1) of the said Rules is reproduced below :

“11(1) If it is reported to the Registrar that a clerical

or formal error has been made in the register or if such

error is otherwise noticed by him and if the register is in

the possession, the Registrar shall enquire into the matter

and he is satisfied that any such error has been made, he

shall correct the error (by correcting or cancelling the

entry) as provided in Section 15 and shall send an extract

of the entry showing the error and how it has been

corrected will be communicated to the Deputy Chief

Registrar of Births and Deaths, Maharashtra State, Pune.”

After going through it, we find that the clerical or formal error made in the

register can be corrected by the competent Authority upon the satisfaction

that such error is genuinely occurred. There is no time limit prescribed for making such corrections.

8) In paragraph 6 of the affidavit, the stand taken by respondent

nos.2 and 3 is as under :

“6. It is submitted that the petitioner made an

application 27.02.2020 after obtaining the Birth

Certificate 30.12.2019. It is submitted that on the basis

of application and the record available with the

Corporation, the application of the petitioner was

decided on 24.03.2020. It is submitted that while

deciding the application it is mentioned that correction

in the date of birth cannot be made, however correction

in the surname can be made. It is submitted that the

answering respondent on its own would correct the

typing mistake as regards to the surname of the

petitioner. It is submitted that the date of birth cannot

be changed being a relevant fact as per Section 35 of

the Evidence Act.”

In view of the aforesaid stand taken, we do not find any difficulty in carrying

out the correction in the surname of the petitioner in the said register. So far

as correction in the date of birth is concerned, it is an obvious mistake in

entering the date of birth as 23/1/1954, particularly when the petitioner was

born at 1.30 a.m. in the intervening night of 23/1/1954 and 24/1/1954.

Such obvious mistake, in our view, can be corrected.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

NAGPUR BENCH, NAGPUR

WRIT PETITION STAMP No.9805 OF 2020

Smt. Archana w/o. Prakash Tamhane, Vs The State of Maharashtra,

Coram : R.K. Deshpande And

Pushpa V. Ganediwala, JJ.

Date : 28 th October, 2020 .

ORAL JUDGMENT : (Per : R.K. Deshpande, J.)

Hearing was conducted through Video Conferencing and the

learned Counsels agreed that the audio and visual quality was proper.

2) Rule, returnable forthwith. Ms. H.N. Jaipurkar, learned Assistant

Government Pleader waives service of notice for respondent no.1. Shri Amit

Kukday, learned Counsel waives service of notice for respondent nos.2 and 3

and has filed reply on affidavit. Heard finally by consent of learned

Counsels appearing for the parties.

3) On 6/2/2020, the petitioner applied to the respondent no.3 for

correction of date of birth and surname in the birth register (for short, “said

register”) maintained under the Registration of Births and Deaths Act, 1969.

According to the petitioner, her maiden name was Sulochana Laxmanrao

Kotwal, but the surname of her father in the said register is wrongly shown as

Laxman Gajanan `Kotawat’. Similarly, according to her, the date of birth

shown as 23/1/1954 is wrong and it should have been 24/1/1954 – the

reason for such correction being that she was born in the intervening night of

23/1/1954 and 24/1/1954 at 1.30 a.m. This application is rejected by order

dated 24/3/2020 passed by respondent no.3 on the ground that the claim of

the petitioner for change in the date of birth cannot be entertained.

4) The undisputed position is that the date of birth of the petitioner

in the said register is shown as 23/1/1954 and the name of her father is

shown as Laxman Gajanan Kotawat. Relying upon the provisions of Rule

11(1) of the Maharashtra Registration of Births and Deaths Rules, 2000 (for short, “said Rules”), it is urged that there is no prohibition for correcting date

of birth in the register. On 23/10/2020, we passed an order as under :

“Issue notice for final disposal of the matter,

returnable on 28.10.2020.

Mrs. H.N. Jaipurkar, learned AGP for

respondent No. 1 and Shri S.M. Puranik, learned counsel

for respondent Nos. 2 & 3, waive notice.

Relying upon Rule 11(1) of the Maharashtra

Registration of Births and Deaths Rules, 2000,

(hereinafter referred to as Rules of 2000) reproduced at

page 6 in the petition, Shri Mohgaonkar, learned counsel

for the petitioner has urged that the correction in the

date of birth is also possible. He submits that the

petitioner was born at 1.30 in the intervening night of

23rd and 24th January 1954 and, therefore, the date of

birth entered in the register should have been 24th

January 1954 and not 23rd January 1954. He further

submits that in all other records, the date of birth is

shown as 24th January 1954.

The factual position is that the petitioner was

born at 1.30 A.M. in the intervening night of 23rd & 24th

January 1954. It does not seem to be disputed question

of fact. Prima facie, therefore, the date of birth should

have been shown as 24th January 1954.

The question of competency of the

respondent to change entry in the date of birth after

lapse of so many years needs to be considered, unless

there is a rider of the period during which the application

for correction in the date of birth register is prescribed.

Prima facie, it may be permissible for the respondent

under Rule 11(1) of the Rules of 2000 to carry out such

correction.

Shri Puranik, learned counsel seeks time to

take instructions in the matter.

List the matter on 28.10.2020.”

5) In response to the aforesaid order, the respondent nos.2 and 3

have filed an affidavit taking a stand that relevancy is attached to the public

record under Section 35 of the Indian Evidence Act. As per the guidelines

issued by the Government of India, Ministry of Home Affairs on 30/6/2015 as

well as the instructions issued by the Government of Maharashtra, Health

Department on 17/11/2015, the date of birth in the said register cannot be

corrected.

6) The most relevant fact that the petitioner was born at 1.30 a.m. in

the intervening night of 23/1/1954 and 24/1/1954 is not in dispute. In the

School leaving certificate issued by M.P. Deo Smruti Lokanchi Shala, Mahal,

Nagpur in the year 1969, the date of birth of the petitioner is shown as

24/1/1954. The same date is incorporated in the certificate issued by the

Maharashtra State Board of Secondary Education. In the service record of the

petitioner in the UCO Bank, the date of birth is shown as 24/1/1954. The

petitioner took voluntary retirement in the year 2000. The two sons of the

petitioner, namely, Abhijeet and Amitabh after completing their education

from Mumbai University are settled down in USA. The petitioner is facing

problem for getting Green Card from the USA Authorities because of the discrepancies in the date of birth and surname appearing in the said register and the other records pointed out above.

7) Rule 11(1) of the said Rules is reproduced below :

“11(1) If it is reported to the Registrar that a clerical

or formal error has been made in the register or if such

error is otherwise noticed by him and if the register is in

the possession, the Registrar shall enquire into the matter

and he is satisfied that any such error has been made, he

shall correct the error (by correcting or cancelling the

entry) as provided in Section 15 and shall send an extract

of the entry showing the error and how it has been

corrected will be communicated to the Deputy Chief

Registrar of Births and Deaths, Maharashtra State, Pune.”

After going through it, we find that the clerical or formal error made in the

register can be corrected by the competent Authority upon the satisfaction

that such error is genuinely occurred. There is no time limit prescribed for

making such corrections.

8) In paragraph 6 of the affidavit, the stand taken by respondent

nos.2 and 3 is as under :

“6. It is submitted that the petitioner made an

application 27.02.2020 after obtaining the Birth

Certificate 30.12.2019. It is submitted that on the basis

of application and the record available with the

Corporation, the application of the petitioner was

decided on 24.03.2020. It is submitted that while

deciding the application it is mentioned that correction

in the date of birth cannot be made, however correction

in the surname can be made. It is submitted that the

answering respondent on its own would correct the

typing mistake as regards to the surname of the

petitioner. It is submitted that the date of birth cannot

be changed being a relevant fact as per Section 35 of

the Evidence Act.”

In view of the aforesaid stand taken, we do not find any difficulty in carrying

out the correction in the surname of the petitioner in the said register. So far

as correction in the date of birth is concerned, it is an obvious mistake in

entering the date of birth as 23/1/1954, particularly when the petitioner was

born at 1.30 a.m. in the intervening night of 23/1/1954 and 24/1/1954.

Such obvious mistake, in our view, can be corrected.

9) In view of above, this writ petition is allowed and the impugned

order dated 24/3/2020 at Annexure “I” to the petition, passed by respondent

no.3 is quashed and set aside. The respondent nos.2 and 3 are directed to

carry out the correction in the register maintained under the Registration of

Births and Deaths Act, 1969 in the date of birth as well as in the surname of

the petitioner. The date of birth of the petitioner be changed from

23/1/1954 to 24/1/1954 and the surname be corrected as “Kotwal” in place

of “Kotawat”. The petitioner be issued fresh birth certificate incorporating the

correction, within a period of one week from today upon deposit of requisite

charges, if any required.

10) Rule is made absolute in the above terms. No order as to costs.