1 2025:CGHC:61711 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR SA No. 768 of 2019 Rambai Chandrakar Wd/o. Late Manharanlal, Aged About 80 Years R/o. Purana Ravanbhara, Mahasamund, Police Station And Tahsil Mahasamund, District Mahasamund Chhattisgarh( Plaintiff) ... Appellant versus 1 - Deputy Registrar Birth And Death Department Municipal Council, Mahasamund, Tahsil And District Mahasamund Chhattisgarh (Defendant) 2 - Chandrahas Chandrakar, S/o Late Maharan Lal Chandrakar, Aged About 59 Years R/o S-32 Extension Of Sector-1 Avanti Vihar Colony, Telibandha, Raipur, Tahsil And District Raipur Chhattisgarh (Defendant) ... Respondents (Cause title taken from Case Information System) For Appellant : Ms. Shivangi Agrawal, Advocate Hon'ble Shri Justice Ravindra Kumar Agrawal Order on Board 17/12/2025 1. Present is the second appeal under Section 100 of the Code of Civil Procedure, 1908 filed by the plaintiff against the impugned judgment and decree dated 16-08-2019, passed by learned First Additional District Judge, Mahasamund in Civil Appeal No. H-058/2019, whereby the first appeal filed by the plaintiff is dismissed and the VED PRAKASH DEWANGAN Digitally signed by VED PRAKASH DEWANGAN Date: 2026.02.02 19:26:49 +0530 2 judgment and decree dated 28-01-2019, passed by learned 2nd Civil Judge Class-2, Mahasamund, in Civil Suit No. 56-A/2018 has been affirmed. 2. The plaintiff had filed a civil suit for declaration that the date of birth of the defendant No. 2, Chandrahas Chandrakar is 11-07-1959 and also for permanent injunction to declare any other date of birth except the correct date of birth as 11-07-1959. The plaintiff had pleaded in her plaint that, she had married with Manharan Lal Chandrakar and out of their wedlock, five children have been born including the defendant No. 2. The defendant No. 2 was born on 11-07-1959, and thereafter her other children were born. In the month of August 2018, when the dispute arose in the family with respect to the family properties, which travelled up to community meeting and the issue raised in the community meeting with the legitimacy of the defendant No. 2, as the plaintiff had married in the year 1957 and she could not deliver child in the year 1957 itself, and then the plaintiff came to know that the defendant No. 2 had disclosed his date of birth as 03-01-1957 in various places and she considered it to be her defamation, which is stigmatic on her character and therefore, the present suit has been filed. The defendant No. 1 has filed his written statement, in which he disclosed that the civil suit pertains to correction of date of birth of defendant No. 2 and being the government employee, he is having no personal knowledge of the fact as the Municipal Council, Mahasamund came into existence in the year 1968. 3. The defendant No. 2 has also filed his written statement and admitted the claim of the plaintiff. He stated in his written statement that, at the 3 time of admission in the school, his date of birth was recorded by a servant of the house and he on his own got it recorded as 03-01-1957. The date of birth disclosed by his mother may be his correct date of birth. 4. Based on the pleadings of the parties, the learned trial Court has framed the following issues:- “1- D;k izfroknh Ø- 02 dh okLrfod tUe frFkh 11-07-1959 gS \ }2- lgk;rk ,oa okn O;;\” 5. In support of her claim, the plaintiff has examined herself as PW-1 and Smt. Purnima Bai Chandrakar as PW-2, and relied upon the document (exhibit P/1), which is the pedigree of the plaintiff, Exhibit P/2 is the mutation register, Exhibit P/3 is the higher secondary mark- sheet of board examination of the daughter of the plaintiff, Exhibit P/4 is the higher secondary mark-sheet of son of the plaintiff and Exhibit P/5 is the higher secondary mark-sheet of another son of the plaintiff. The defendants have not laid any evidence. 6. After evaluating the evidence available on record produced by the parties, the learned trial Court comes to the conclusion that, the plaintiff has failed to prove that the date of birth of the defendant No.2 is 11-07-1959 and consequently, dismissed the suit. The judgment and decree passed by learned trial Court was challenged by the plaintiff before the learned First Appellate Court and the first appeal filed by the appellant has also been dismissed vide its judgment and 4 decree dated 16-08-2019 upholding the findings recorded by the learned trial Court, hence the second appeal. 7. The counsel for the appellant would submit that, in the case the defendant No. 1 has shown his ignorance about the correct date of birth of the plaintiff, as he is the government employee and the Municipal Council, Mahasamund came into existence in the year 1968. The defendant No. 2 has admitted the claim of the plaintiff and has not laid any evidence contrary to the evidence of the plaintiff. Therefore, there is absolutely no any rebuttal of either pleading or evidence of the plaintiff and the decree should have been passed in favour of the plaintiff declaring the date of birth of the defendant No. 2 as 11-07-1959. She would further submit that, when the plaintiff considered it proper to file a suit when the dispute arose in the family, which travelled up to the community and the allegation of her chastity would be a stigma upon her, she filed the suit. The plaintiff being the mother of the defendant No. 2 would be the best person to disclose the date of birth of her child. However, the learned trial Court, ignoring the material evidence produced by the plaintiff, dismissed the suit holding that, the date of birth of the defendant No. 2 has not been proved by producing any documentary evidence. Therefore, the appeal involves substantial question of law for its determination, as to whether the finding recorded by the learned trial Court as well as First Appellate Court is perverse to the facts of the case. 8. I have heard learned counsel for the appellant and perused the record of the trial Court. 5 9. The present suit has been filed on 10-12-2018 by the plaintiff for declaring the date of birth of the defendant No. 2 as 11-07-1959. The defendant No. 2 himself has not claimed correction of his date of birth or declaring his earlier date of birth as wrong date of birth. The plaintiff has filed the suit showing the cause of action arose in the year 2018, when in the community meeting the dispute arose with respect to the date of birth of the defendant No. 2. She was completely silent with respect to date of birth of the defendant No. 2 prior to 02-10-2018, which is the date on which the cause of action first arose as has been pleaded in the plaint. In the meantime, the defendant No. 2 had joined his service and almost at the age of his superannuation. However, none of the parties have challenged the date of birth of the defendant No. 2. 10. The plaintiff has stated in her evidence that, the defendant No. 2 was born on 11-07-1959 at Kasturba Gandhi Trust, Belsonda and she submitted a certificate to that respect. However, she has not relied upon the said certificate nor tried to examine the record of the said Kasturba Gandhi Trust, Belsonda and to get examined any person from there to prove that the defendant No. 2 was born on 11-07-1959 at Kasturba Gandhi Trust, Belsonda. From her evidence, she submitted the mark-sheets of her three children, in which the date of birth of her children were recorded as 25-02-1963, 23-02-1965 and 19-06-1967. However, from these three documents, it does not reflect that the defendant No. 2 was born on 11-07-1959. The evidence produced by the plaintiff is her self-serving statement that, the defendant No. 2 was born on 11-07-1959 and the best evidence which might be available to her i.e. the counterfoil produced by her 6 from Kasturba Gandhi Trust, Belsonda has not been proved, in accordance with law. After such a long time, one cannot say the exact date of birth of the defendant No. 2 without having any documentary evidence, particularly when the defendant No. 2 herself and the party considered for about six decades that the correct date of birth of the defendant No. 2 is 03-01-1957. 11. It is not the case of the plaintiff that, from 03-01-1957 up to 02-10-2018, the plaintiff as well as the defendant No.2 had claimed for correction of his date of birth. Therefore, the learned trial Court as well as First Appellate Court dismissed the suit of the plaintiff for want of sufficient evidence with respect to date of birth of the defendant No. 2, for which the plaintiff is claiming. 12. With respect to the other submissions that, the evidence of the plaintiff remains unrebutted by the defendants, and the decree should have been passed by the learned trial Court based on the unrebutted evidence, it also would not attract this Court to admit the second appeal. Considering the provisions of Order 8, Rule 10 of the CPC that, the provisions are directory in nature and not mandatory, as has been held by the Hon’ble Supreme Court in the matter of “Asma Lateef and Another v. Shabbir Ahmad and others” 2024 (4) SCC 696. Para 26, 27 and 28 of the said judgment are relevant, which are reproduced hereinbelow:- “26. We have no hesitation to hold that Rule 10 is permissive in nature, enabling the trial court to exercise, in a given case, either of the two alternatives open to it. Notwithstanding the 7 alternative of proceeding to pronounce a judgment, the court still -2- C.M.P. No. 1057 of 2022 has an option not to pronounce judgment and to make such order in relation to the suit it considers fit. The verb "shall" in Rule 10 (although substituted for the verb "may" by the Amendment Act, 1976) does not elevate the first alternative to the status of a mandatory provision, so much so that in every case where a party from whom a written statement is invited fails to file it, the court must pronounce the judgment against him. If that were the purport, the second alternative to which "shall" equally applies would be rendered otiose. 27. At this stage, we consider it apposite to take a quick look at Balraj Taneja to examine the scope of Order 8 Rule 10. Therein, this Court ruled that a court is not supposed to pass a mechanical judgment invoking Order 8 Rule 10 CPC merely on the basis of the plaint, upon the failure of a defendant to file a written statement. The relevant paragraphs of the judgment are reproduced below for convenience: (SCC p. 410, para 29) "29. As pointed out earlier, the court has not to act blindly upon the admission of a fact made by the defendant in his written statement nor should the court proceed to 8 pass judgment blindly merely because a written statement has not been filed by the defendant traversing the facts set out by the plaintiff in the plaint filed in the court. In a case, specially where a written statement has not been filed by the defendant, the court should be a little cautious in proceeding under Order 8 Rule 10 CPC. Before passing the judgment against the defendant it must see to it that even if the facts set out in the plaint are treated to have been admitted, a judgment could possibly be passed in favour of the plaintiff without requiring him to prove any fact mentioned in the plaint. It is a matter of the court's satisfaction and, therefore, only on being satisfied that there is no fact which need be proved on account of deemed admission, the court can conveniently pass a judgment against the defendant who has not filed the written statement. But if the plaint itself indicates that there are disputed questions of fact involved in the case regarding which two different versions are set out in the plaint itself, it would not be safe for the court to pass a judgment without requiring the plaintiff to prove the 9 facts so as to settle the factual controversy. Such a case would be covered by the expression "the court may, in its discretion, require any such fact to be proved" used in sub-rule (2) of Rule 5 Order 8, or the expression "may make such order in relation to the suit as it thinks fit" used in Rule 10 Order 8." No doubt this decision was rendered considering that the verb used in the provision is "may", but nothing substantial turns on it. 28. What emerges from a reading of Balraj Taneja [Balraj Taneja v. Sunil Madan, (1999) 8 SCC 396] , with which we wholeheartedly concur, is that only on being satisfied that there is no fact which needs to be proved on account of deemed admission, could the court pass a judgment against the defendant who has not filed the written statement; but if the plaint itself suggests involvement of disputed questions of fact, it would not be safe for the court to pass a judgment without requiring the plaintiff to prove the facts. Balraj Taneja [Balraj Taneja v. Sunil Madan, (1999) 8 SCC 396] also lays down the law that provision of Order 8 Rule 10 CPC is by no means mandatory in the sense that a court has no 10 alternative but to pass a judgment in favour of the plaintiff, if the defendant fails or neglects to file his written statement.” 13. In the matter of “Balraj Taneja and another v. Sunil Madan and another” 1999 (8) SCC 396, the Hon’ble Supreme Court has held that:- “14. This Rule, namely Rule 10, was also amended by the Code of Civil Procedure (Amendment) Act, 1976 (Act No. 104 of 1976). Prior to its amendment, it was held in a number of decisions that the rule can be invoked only in those situations where the Court has required the defendant to file the Written Statement in terms of Rule 9 of Order 8. A few other High Courts had taken the view that this Rule would be applicable even to those cases where a Written Statement was required to be filed under Order 8 Rule 1 CPC. The conflict of decisions has been set at rest by providing specifically under this rule that where a party from whom a Written Statement is required either under Rule 1 or Rule 9 of Order 8 fails to present the same within the time permitted or fixed by the Court, the Court shall pronounce judgment against him or make such order in relation to the suit as it thinks fit. Rule 10 thus governs both the situations where a Written 11 Statement is required under Rule 1 of Order 8 as also where it has been demanded under Rule 9. In both the situations, if the Written Statement has not been filed by the defendant, it will be open to the Court to pronounce judgment against him or make such order in relation to the suit as it thinks fit. It is to be noticed that if the Written Statement is not filed, the Court is required to pronounce judgment against the defendant. The words "against him" are to be found in Rule 10 of Order 9 which obviously means that the judgment will be pronouced against the defendant. This rule also gives a discretion either to pronounce judgment against the defendant or "make such order in relation to the suit as it thinks fit." These words are of immense significance, inasmuch as they give a discretion to the Court not to pronounce judgment against the defendant and instead pass such order as it may think fit in relation to the suit.” 14. When the trial Court considered to proceed with the trial of the case, she exercised its discretion not to pass decree on any unrebutted evidence and asked the plaintiff to prove her case that, the correct date of birth of the defendant No. 2 is 11-07-1959. 15. From closed scrutiny of the pleadings and evidence produced in the case, it transpires that, the issue with respect to correction of date of 12 birth is a pure question of fact, which has been concurrently decided by learned trial Court as well as First Appellate Court. 16. In the matter of “Vishwanath Agrawal vs. Sarla Vishwanath Agrawal” 2012 (7) SCC 288, the Hon’ble Supreme Court held in paragraph 36 & 37 as under: “36. In Major Singh v. Rattan Singh (1997) 3 SCC 546: AIR 1997 SC 1906) it has been observed that when the courts below had rejected and disbelieved the evidence on unacceptable d grounds, it is the duty of the High Court to consider whether the reasons given by the courts below are sustainable in law while hearing an appeal under Section 100 of the Code of Civil Procedure. 37. In Vidhyadhar v. Manikrao(1999) 3 SCC 573, it has been ruled that the High Court in a second appeal should not disturb the concurrent findings of fact unless it is shown that the findings recorded by the courts below are perverse being based on no evidence or that on the evidence on record no reasonable person could have come to that conclusion. We may note here that solely because another view is possible on the basis of the evidence, the High Court would not be entitled to exercise the jurisdiction under Section 100 of the Code of Civil Procedure. This view of ours 13 has been fortified by the decision of this Court in Abdul Raheem v. Karnataka Electricity Board18. 17. In the matter of “State of Rajasthan and Others vs. Shiv Dayal and Another” 2019 (8) SCC, 637, the Hon’ble Supreme Court held in paragraph 16 & 17 as under: “16. When any concurrent finding of fact is assailed in second appeal, the appellant is entitled to point out that it is bad in law because it was recorded dehors the pleadings or it was based on no evidence or it was based on misreading of material documentary evidence or it was recorded against b any provision of law and lastly, the decision is one which no Judge acting judicially could reasonably have reached. (See observation made by learned Judge, Vivian Bose, J., as his Lordship then was a Judge of the Nagpur High Court in Rajeshwar Vishwanath Mamidwar v. Dashrath Narayan Chilwelkar para 43.) 17. In our opinion, if any one or more ground, as mentioned above, is made out in an appropriate case on the basis of the pleading and evidence, such ground will constitute substantial question of law within the meaning of Section 100 of the Code.” 14 18. From the aforesaid discussions, this Court does not find any question of law, much less substantial question of law involved in the present appeal for its determination, and accordingly the second appeal is dismissed without noticing to other side. 19. Parties to bear their own costs. Sd/- (Ravindra Kumar Agrawal) Judge ved