SHAMSHER SINGH Vs. STATE

JUDGEMENT

(1.) THIS civil First Miscellaneous Appeal owes its origin to a civil suit preferred by the Appellant/Plaintiff in the court of 1st Additional District Judge Jammu, wherein he prayed for a mandatory injunction commanding the respondents/defendants to make correction of the Date of Birth of the appellant/plaintiff in his service book that his date of birth is 9.9.1941 and not as 9.3.1936, as recorded in his service book, and also prohibiting the defendants from retiring the plaintiff on the date of superannuation which is based upon the date of entry recorded in his service record as 9.3.1936.

(2.) WITH the aforesaid suit, an application for issuance of an interim injunction was preferred in the trial court and upon that application, on trial the impugned order dated 22.3.1994 was passed by the trial court, holding that the plaintiff/appellant has neither a prima face case nor has the balance of convenience in his favour and also that he will not suffer, by refusal of the interim injunction, any injury that cannot be compensated. His application for grant of interim relief in allowing him to continue in service till the suit was disposed of on merits, was accordingly rejected.

(3.) IT is against the said order dt.22.3.1994 that the present appeal has filed, contending therein that the trial court has not considered the affidavits of the responsible persons, like Chowkidar and Lumberdar of the village, showing that the date of birth of the appellant was 9.9.1941 and also the Horoscope which provides credence to such evidence was not taken into consideration while passing the impugned order by the trial court. The evidence led by the appellant before the trial court was in the form of affidavits/documents and that could be taken into evidence in the regular course of the trial and the appellant has a excellent prima facie case to show that his date of birth is actually 9.9.1941 and not as 9.3.1936, as recorded in his service book. An enquiry was ordered to be conducted by the respondents in absence of the appellant and the appellant was not associated in the said enquiry and no opportunity was given to him to produce the evidence and witness, if any, hence the enquiry report is without any credence.