G BALACHANDRAN Vs. STATE OF TAMIL NADU

JUDGEMENT

(1.) PURSUANT to the notice of motion ordered in this second appeal, the respondent has entered appearance through Counsel and I have heard both the counsel for the appellant and the respondent. The plaintiff is the appellant in this second appeal. He filed the suit for a declaration that he was born on 7. 7. 1957 and for a consequential mandatory injunction for correcting his date of birth as found in the S. S. L. C. Book, which showed the said date of birth as 7. 7. 1956. The suit was dismissed by the trial court, both on merits and on the ground that the suit itself was barred by limitation. But, in the first appeal preferred by the plaintiff in SD. No. 51 of 1989, the lower appellate Court accepted the case of the plaintiff that his date of birth was only 7. 7. 1957 and not 7. 7. 1956, but dismissed the suit on the ground that the suit was barred by limitation. Against the said dismissal, this second appeal has been filed by the plaintiff.

(2.) SO, the only question to be dealt with in the present second appeal is about the abovesaid point of limitation. The relevant Article applicable in the present case would be Art. 113, the residuary Article. There, the period of limitation is three years from the time when the ' ' right to sue accrues. ' ' In the present case, the lower appellate court has found that the abovesaid right to sue has accrued to the plaintiff even in 1976 itself when he came to know that his date of birth was only 7. 7. 1957 and not 7. 7. 1956. The learned Counsel for the appellant submits that the abovesaid reasoning of the lower appellate cour t is totally erroneous since according to Gannon Dunkerley & Company v. Union of India, A. I. R. 1970 S. C. 1433, there is no right to sue until there is an accrual of the right asserted in the suit, and its infringement, or at least a clear and unequivocal threat to infringe that right by the defendant against whom the suit is instituted. The learned Counsel points out that pursuant to ex. A-4 dated 29. 10. 1979, the application made by the plaintiff to the defendant for making the necessary correction, the reply was sent by the defendant under ex. A-5 dated 3. 11. 1979 rejecting the claim of the plaintiff. SO, according to the said counsel, the time would begin to run only from 3. 11. 1979. The learned counsel for the respondent could not make any submission contra in view of the abovesaid Supreme Court decision. Therefore relying on the abovesaid Supreme court decision, this second appeal has to be allowed.