CHIEF ENGINEER, UPPER KOLAB PROJECT Vs. DHANU KHORA

JUDGEMENT

(1.) This second appeal is in challenge of the judgment and decree dated 16.3.2004 and 3.4.2004, respectively, passed by the learned District Judge, Koraput, Jeypore in T.A. No.7 of 2002 reversing the ex parte judgment and decree dated 8.3.2002 and 27.3.2002 respectively, passed by the learned Civil Judge (Junior Division) Jeypore in T.S. No.21 of 2001.

(2.) In this appeal, the appellant is the defendant before the learned trial court and the respondent is the plaintiff. Learned trial court dismissed the suit ex parte refusing to declare that the plaintiff's correct date of birth is 10.12.48 in order to grant the consequential relief of correction of date of birth in plaintiff's service book. The plaintiff took the stand that on 1.9.1964 he was appointed as a Driver in Balimela Dam Project. At the time of his appointment, his employer did not take any certificate from him for such appointment. In October 2000, when the plaintiff took his service book, he came to know that his date of birth was wrongly noted as 8.3.1944 instead of 10.12.1948. Having come to know this mistake, he applied to the defendant for correction of his date of birth through the Sub-Divisional Officer under whom he was working. The application was forwarded to the Executive Engineer, who without forwarding the application to the Chief Engineer (defendant), rejected the same on the ground that it was not made in accordance with Rule 65 of OGFR Vol.I. Hence the suit.

(3.) The defendant, though received summons in the suit, did not appear before the learned trial court. So, the learned trial court proceeded ex parte. The plaintiff examined himself as the sole witness and proved documents marked Ext.1 to 5. Learned trial court analyzed the evidence and dismissed the suit observing, inter alia, that in the absence of proof of the concerned entry in the School Admission Register, the transfer certificate (Ext.1) cannot be relied on, more so when the authority who issued the same has not been examined as a witness. It is also held by the trial court that plaintiff's stand that his correct date of birth is 10.12.1948 is not acceptable inasmuch as if that were to be accepted then the plaintiff must have entered into the service when he was below 16 years which is not permissible under the Orissa Service Code. The learned trial court further held that plaintiff's suit against the defendant, a public servant, without giving notice under Section 80 of the Civil Procedure Code (C.P.C) is not maintainable.