Final Order 14

Order Details: COPY OF JUDGMENT
Pdf Text: Civ Suit 995/2023 Sunita Bala Vs. Municipal Corporation of Delhi pg no. 1/8
IN THE COURT OF DR. SAEMA JAIN
JSCC-ASCJ-GUARDIAN JUDGE, EAST,
KARKARDOOMA COURTS, DELHI
CNR No. DLET030018742023
Civ Suit No. 995/2023
Smt. Sunita Bala
W/o Sh. Rajesh Joshia,
R/o: 30A, Gali No. 9,
South Anarkali Extn., Delhi
......Plaintiff
Versus
Municipal Corporation of Delhi
Through Its Commissioner
Dr. S.P.M. Civic Centre,
Minto Road, SKD Basti,
Press Enclave, Ajmeri Gate,
New Delhi-110002
......Defendant
Date of filing : 19.12.2023
Date of Institution : 20.12.2023
Date of judgment : 04.08.2025
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Civ Suit 995/2023 Sunita Bala Vs. Municipal Corporation of Delhi pg no. 2/8
JUDGMENT
1. The suit is seen to have been filed seeking the relief of
declaration to the effect that Sh. Rajesh Joshia, husband of
the plaintiff be declared dead having been missing for
more than 07 years. It has been further sought as a
consequence that directions be issued to the defendant to
issue death certificate of Sh. Rajesh Joshia, S/o Late Sh.
Gugan Singh as well.
2.
Pithily put, the case of the plaintiff is that she got married
to Sh. Rajesh Joshia on 08.05.1998 and thereafter, was
residing with him. Out of the said wedlock, two male
children were born. It is averred that husband of the
plaintiff Sh. Rajesh Joshia was under neurology treatment
from Ram Manohar Lohia Hospital. Plaintiff has stated
that her husband Sh. Rajesh Joshia left the house on
10.06.2002 without saying anything and did not come
back. To trace her husband, Sh. Rajesh Joshia, plaintiff and
her father-in-law made enquiries from her relatives and
friends, but to no avail. Thereafter, a complaint regarding
missing of Sh. Rajesh Joshia was lodged at PS Preet Vihar
vide DD No. 17A on 13.06.2002 by father-in-law of
plaintiff (PS Preet Vihar has now been shifted to PS Jagat
Puri). Since husband of the plaintiff, Sh. Rajesh Joshia
could not be traced out despite several efforts, concerned
officials of police declared him untraceable and filed
untrace report on 08.04.2019. In such circumstances,
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Civ Suit 995/2023 Sunita Bala Vs. Municipal Corporation of Delhi pg no. 3/8
plaintiff approached the office of Executive Magistrate and
defendant MCD for issuance of death certificate of her
husband as he has been missing for more than seven years.
Even publication regarding missing of Sh. Rajesh Joshia
was made in newspapers namely Rashtriya Sahara and The
Statesman on 22.02.2024, but till date, his whereabouts are
unknown and he has not been heard of since then. Hence,
the present suit. The plaintiff has prayed for the followings
reliefs:
a) Decree of declaration of Sh. Rajesh Joshia, S/o Late Sh.
Gugan Singh, as being dead.
b) Decree of mandatory injunction in favour of the plaintiff
and against the defendant thereby directing the defendant,
its associates, representatives, assignees, agents, legal
heirs, successors etc. to issue death certificate of Sh.
Rajesh Joshia, S/o Late Sh. Gugan Singh.
c) Cost of the suit in favour of the plaintiff and against the
defendant.
3. Summons of the suit were served and publication qua the
present suit was also made in newspapers. It was stated in
the WS filed by the defendant / MCD that the present suit
is not maintainable as it has not been served U/s 477/478
of DMC Act prior to filing of the present suit. Other claims
of the plaintiff were also denied by the defendant / MCD.
No other person came up before the Court to contest the
suit either.
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4. Upon pleadings being complete, vide order dated
11.12.2024, following issues were framed:
i) Whether the plaintiff is entitled to a decree of
declaration of civil death to the effect that her husband Sh.
Rajesh Joshia has been missing since more than 07 years?
OPP.
ii) Whether the plaintiff is entitled to a decree of
mandatory injunction thereby directing the defendant to
issue death certificate? OPP.
iii) Relief.
5. In order to prove her case, the plaintiff examined herself as
PW1 and tendered her evidence by way of affidavit Ex.
PW1/A. She deposed on the lines of the averments made in
the plaint. She relied upon the following documents:
i) Copy of Aadhar Card of PW1 : Ex. PW1/1 (OSR)
ii) Copy of Voter ID Card of
husband of PW1 : Mark A
iii) Copy of Aadhar Card of
younger son of PW1 : Mark B
iv) Copy of Aadhar Card of
elder son of PW1 : Mark C
v) Copy of public notice / pamphlet
(Ishtihar-e-shor-e-goga) dated
16.06.2002 : Ex. PW1/5 (OSR)
vi) Copy of complaint bearing no.
DD 17A dated 13.06.2002 : Ex. PW1/6 (OSR)
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vii) Copy of untrace report dated
08.04.2019 : Ex. PW1/7 (OSR)
viii) Copy of medical / OPD records
of husband of PW1 : Ex. PW1/8 (OSR)
(Colly. 23 pages)
ix) Original copy of newspaper i.e.
The Stateman (English) dated
22.02.2024 : Ex. PW1/9
x) Original copy of newspaper i.e.
Rashtriya Sahara (Hindi) dated
22.02.2024 : Ex. PW1/10
6. PE was closed vide order dated 10.06.2025. Further, on the
oral submission of Ld. Counsel for the defendant / MCD,
DE was closed vide order dated 01.08.2025.
7. Final arguments heard by Ld. Counsels on behalf of both
the sides.
8. Case file perused. Submissions considered.
9. The grant of decree of declaration of civil death of a
person is founded on the presumption envisaged in Section
108 of the Indian Evidence Act, 1972. The said provision
propounds that if a person has not been heard of for seven
years by those who would naturally have heard of him if
he had been alive, the burden of proving that he is alive is
shifted upon the person who affirms it. The presumption
raised under Section 108 is a limited presumption confined
only to presuming the factum of death of the person whose
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life or death is in issue. In
Narbada v. Ram Dayal AIR
1968 Raj. 48, it was held that under Section 108 of the
Indian Evidence Act, presumption about the death of a
person is to be drawn when the dispute is brought to the
Court and death can be presumed on the date on which the
suit was filed and it cannot be given a further retrospective
effect.
10.It is averred in the plaint that Sh. Rajesh Joshia has been
missing since 10.06.2022. The same is evident from the
missing complaint made to the PS Preet Vihar vide DD
No. 17A dated 13.06.2002 (Ex. PW1/6 (OSR)) and the
action taken thereon / untrace report obtained from the PS
Preet Vihar (Ex. PW1/7 (OSR)). It is also seen from the
documents on record, that neither the police officials nor
the plaintiff have been able to gather any clue about the
whereabouts of the missing person since 10.06.2022.
There is nothing on record to discredit the version of the
plaintiff, whose testimony remained unrebutted and
uncontroverted. LR report from the office of the Executive
Magistrate concerned is also on record fortifying the
claims of the plaintiff qua the missing person. Publication
was also made in the newspapers and despite the same,
none has appeared before the Court to put forth any rival
claim either. In the natural course of events, it can be
reasonably expected that the wife / children of a person
would hear from her husband / their father. In these
circumstances, a presumption as to the civil death of Sh.
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Rajesh Joshia is indeed liable to be raised. The defendant
has not been able to rebut the presumption.
11.Considering the totality of circumstances therefore, this
Court is of the view that the plaintiff has been successful in
proving her case qua Issue No.1 in her favour and she is
held entitled to a declaration that Sh. Rajesh Joshia be
declared as presumed dead. Such declaration of civil death
of Sh. Rajesh Joshia shall be effective from the date of
filing of the suit in light of judgment of
Narbada v. Ram
Dayal (supra).
12.As far as Issues No. 2 is concerned, it is seen that in
written statement filed by defendant / MCD, it has been
claimed that the present suit is barred under Sections
477/478 of DMC Act for want of statutory notice. The said
claim however is seen not to be legally tenable. The basic
object of Sections 477/478 of DMC Act is to prevent
matters from coming to court without due process but once
the matter has reached the court and is contested, the suit
ought not be dismissed on technical grounds.
(Col. A. B.
Singh (through LRs) v. Shri Chunnilal Sawhney and
Others, 2011 SCC OnLine Del 4289). Considering the
same, once defendant / MCD has contested the present
suit, it cannot take recourse to Section 477 and 478 of
DMC Act.
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13.Apart from the above, it is noted that nothing has been
brought on record by defendant / MCD to establish that
death certificate cannot be granted and as such therefore,
Issues No. 2 is also decided in favour of the plaintiff.
RELIEF
14.In view of the discussion as aforesaid,
1. The suit of the plaintiff is decreed and Sh. Rajesh
Joshia, S/o Late Sh. Gugan Singh is declared as dead from
the date of filing of the present suit i.e. 19.12.2023.
2. Defendant / MCD is directed to forthwith issue death
certificate in respect of Sh. Rajesh Joshia, S/o Late Sh.
Gugan Singh and his date of death shall be taken to be the
date of filing of the present suit i.e. 19.12.2023
Decree-sheet be prepared accordingly.
Announced in open court on this 04th August, 2025, this
judgment consists of 08 pages.
(Dr. Saema Jain)
JSCC-cum-ASCJ-cum-Guardian Judge
East/KKD Courts/Delhi
04.08.2025
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