Dr. Mohammed Sabir v. A.P. Mumthaz and T. Asaf Ali

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT CR** ## **THE HONOURABLE MR. JUSTICE SUNIL THOMAS** **FRIDAY, THE 5TH DAY OF JULY 2019 / 14TH ASHADHA, 1941** ## **OP(C).No.1642 of 2019** ## **(AGAINST THE ORDER DATED 11/6/2019 IN UNNUMBERED SUIT OF MUNSIFF COURT, THALASSERY)** ## **PETITIONER:** **DR. MOHAMMED SABIR, AGED 23 YEARS S/O. ASAF ALI AND MUMTHAZ A.P., FORMERLY RESIDED AHNAZ, THIRUVENGAD, THALASSERRY-670 101 AND NOW RESIDING AT PLEASANT CHATEAU, NEAR DISTRICT COURT, THALASSERY-670 101, KANNUR DISTRICT, KERALA INDIA.** ## **BY ADV. SMT.LALIZA.T.Y.** ## **RESPONDENT:** **1 A.P.MUMTHAZ, AGED 52 YEARS D/O KHADEEJA, TEACHER BY PROFESSION, RESIDING AT PLEASANT CHATEAU, NEAR DISTRICT COURT, THALASSERY-670 101, KANNUR DISTRICT, KERALA INDIA. 2 T.ASAF ALI, AGED 62 YEARS S/O LATE CHERIYA MOIDU, RESIDING AT PLEASANT CHATEAU, NEAR DISTRICT COURT, THALASSERY-670101, KANNUR DISTRICT, KERALA INDIA.** **BY ADV. SRI.RASHEED C.NOORANAD** **THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 26.06.2019, THE COURT ON 5/7/2019 PASSED THE FOLLOWING:** O.P.(C) No.1642/2019 2 ## **JUDGMENT** Petitioner herein is aggrieved by the order dated 11/6/2019 of the Munsiff Court, Thalasserry in an unnumbered suit. 2. According to the petitioner herein, he obtained MBBS Degree from a college in the year 2018. His name is shown in the Register maintained before the Registrar of Births and Deaths, Thalassery Municipality as “Mohammed Sabir”. He is also the holder of Indian passport No.T2018598 dated 19/3/2019, wherein his name is shown as “Acharath Parakkat Mohammed Sabir”. He had applied for post graduate medical course of US Medical Licensing Examination. His application was rejected on the ground that the name of the petitioner as shown in the medical degree certificate and the passport does not match. He was called upon to produce a court order clarifying that both the names related to one and the same person. Hence, he filed a suit before the Munsiff Court, Thalassery for a declaration to the effect that “Mohammed Sabir” and “Acharath Parakkat Mohammed Sabir” are one and the same person. The above plaint was returned as unnumbered by the learned Munsiff by order dated 11/6/2019 on the ground that the relief sought in the plaint does not fall under section 34 of the Specific Relief Act. This is under challenge in this O.P.(C) No.1642/2019 3 original petition. 3. Heard the learned counsel for the petitioner and the learned counsel for the contesting respondents. 4. Essentially the relief sought was to declare that both Mohammed Sabir and Acharath Parakkat Mohammed Sabir are one and the same person. According to the petitioner, the name of a person refers to his identity, which constitutes his legal character. According to him, the dispute falls within the ambit of section 34 of the Specific Relief Act. It was contended by the learned counsel for the petitioner that, in the light of explanation in Section 34 of the Act, the petitioner is entitled to a legal character and hence, entitled for the relief sought. The court below was not justified in holding that the suit did not fall within the jurisdiction of section 34 of the Specif Relief Act. According to the learned counsel, a person may be known by different names and it form part of his identity and character and, to contend that the names relate to different persons or conversely that both names do not refer to the same person is a part of his identity and hence, is an essential ingredient of legal character. According to the learned counsel, concept of legal character takes in various aspects including the caste, colour, creed, name and physical O.P.(C) No.1642/2019 4 features. Whenever a dispute arises regarding any of these, it may fall within the scope of a dispute regarding the legal character and aggrieved person is entitled to seek relief. 5. Learned counsel for the petitioner, to buttress her arguments, relied on the decision reported in _**K.P.Ramakrishna Pattar v.K.P.Narayana Pattar and another (AIR 1915 Madras 584)**_ . It was a case wherein the question whether a declaration for subsistence of a personal contract as right to subscribe to a fund was a right to legal character or property arose. Madras High Court held that, a legal character is the same thing as a man's status. A man's status or “legal character” is constituted by the attributes which the law attaches to him in his individual and personal capacity. The distinctive mark or dress, as it were with which the law clothes him, a part of the attributes, which may be said to belong to normal humanity in general. 6. In _**Garabini Kamarin and others v. Surji Narin Sing and others AIR 1924 250)**_ the question whether a suit for the declaration that a decree by a landlord against transferor for rent was fraudulent, was the subject matter. Declaration was sought under section 42 of the Specific Relief Act(now corresponding to section 34 of the O.P.(C) No.1642/2019 5 Specific Relief Act). 7. In _**Muddasani Sarojana v. Muddasani Venkat Narsaish and Ors.(AIR 2007 Andhra Pradesh 50)**_ it was held that, where, however, there is serious dispute as to the existence of title in the plaintiff and the same doubt exists as to the title of the predecessors and transferors, the necessity to seek declaration of title exists. 8. In _**Dhani Ram v. Financial Commissioner(Appeals) to the Govt.of Himachal Pradesh and Anr.(AIR 2012 HP 76),**_ it was held that declaration as to the exclusive possession as co-owner was held to be correct and the suit was sustainable. 9. Apart from the above legal proposition, learned counsel for the petitioner further contended that section 34 of the Specific Relief Act, (corresponding to section 42 of the Old Specific Relief Act) was not an exhaustive one. It was contended that the courts have power to grant such a decree independently of the requirements of the section. ## 10. In _**Yemareddi Ramaraghava Reddy v. Konduru Seshu**_ _**Reddy(**_ **1966 Supp SCR 270),** it was held that the provisions under the Specific relief Act was not exhaustive one and any court can even grant decree independently of the requirements of section. This was O.P.(C) No.1642/2019 6 reiterated by the Supreme Court in _**Supreme General Films Exchange Ltd. v. His Highness Maharaja Sir.Brijnath Singhji Deo**_ _**of Maihar (1975 KHC 600)**_ . It was held that section 42 of the (Old) Act gave statutory recognition to a well recognized type of declaratory relief and subject to limitation, but, it cannot be deemed to exhaust every kind of declaratory relief or to circumscribe the jurisdiction of courts to give declarations of right, in appropriate cases falling outside Section 42 of the Act. ## 11. In _**Hungerford Investment Trust Ltd. v. Haridas Mudhra**_ _**and Others(1972 KHC 624)**_ it was held that Specific Relief Act is not an exhaustive enactment. It does not purport to lay down the law relating to the specific relief in all its ramifications. Earlier, the Division Bench of the Madhya Pradesh High Court in _**Ramanaayan and others v. Firm Mangeram Radheshyam Hardoi and another(AIR 1979 MP 61)**_ had held that court's power to grant declaratory decree was not limited to the terms of section 34 of the Specific Relief Act and declaratory decree can well be made by the courts under the general provisions of the CPC as section 9 or Order 7 Rule 7. ## 12. In _**Bhoop Singh v. Tarif Sing ( AIR 1952 Allahabad 392),**_ O.P.(C) No.1642/2019 7 it was held that the term legal character and right as to any property were used in section 42 disjunctively and not conjunctively, so as to entitle the plaintiff to a declaration on the exclusive basis of either the one or the other. The word “legal” before the word “ character” signifies the status in society of the person seeking a declaration. Whether a man is a legitimate son of another, whether he is the adoptive father of another, whether he has legally married a particular woman or whether by virtue of his relationship with a particular family, etc. are instances of questions involving legal character within the meaning of section 42 of the Specific Relief Act. 13. Appreciation of the legal propositions clearly show that a declaration that a person is known by two different names or that two different names refer to the same individual is a relief that falls within section 34 of the Specif Relief Act, since it relates to a question of his legal character. Legal character signifies the status in society of the person seeking declaration. The name of a person is the integral part of the identity of a person and hence a component of his legal status. If that is disputed, the aggrieved is entitled to seek declaration of that right. It is also clear that even if it does not directly fall within the ambit of section 34 of the Specific Relief Act, O.P.(C) No.1642/2019 8 the power of the court is not restricted to the cases that are specifically referred to in the Act and power is conferred on the court to act independently of section 34 of the Act. Having considered the above, the conclusion arrived at by the court below in the impugned order is an erroneous exercise of jurisdiction which is not legally sustainable and is liable to be set aside. Accordingly, the original petition is allowed. The impugned order is set aside and the court below is directed to receive the plaint on file and to proceed in accordance with law, as expeditiously as possible, considering the urgency expressed by the petitioner. **Sd/SUNIL THOMAS JUDGE** dpk O.P.(C) No.1642/2019 9 ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF HIS BIRTH CERTIFICATE DATED 7.3.2019 ISSUED BY THE REGISTRAR OF BIRTH & DEATHS, THALASSERY, MUNICIPALITY TO THE PETITIONER.** - **EXHIBIT P2 NOTARISEID COPYOF THE DEGREE CERTIFICATE VIDE ENROLMENT NO.ABPL 10010113052 ISSUED TO THE PETITIONER BY ALL INDIA INSTITUTE OF MEDICAL SCIENCES, BHOPAL.** **EXHIBIT P3 TRUE COPY OF THE RELEVANT PAGES OF THE PETITIONER'S INDIAN PASSPORT BEARING NO.T2018598 ISSUED AT KOZHIKODE ON 19.3.2019.** - **EXHIBIT P4 OMMUNICATION DATED 7.6.2019 ISSUED BY THE PETITIONER BY UNITED STATE MEDICAL LICENSING EXAMINATION (USMLE).** - **EXHIBIT P5 TRUE COPY OF THE CERTIFICATE DATED 15TH JUNE 2019 ISSUED BY THE TAHSILDAR, THALASSERRY TO THE PETITIONER.** - **EXHIBIT P6 A TRUE COPY OF THE UNNUMBERED PLAINT DATED 10TH JUNE 2019 RETURNED BY THE COURT OF MUNSIFF, THALASSERY** **EXHIBIT P7 CERTIFIED COPY OF THE ORDER DATED 11.6.2019 MADE IN UNNUMBERED SUIT ISSUED BY THE COURT OF MUNSIFF, THALASSERY.**