Final Order 1

Order Details: Copy of Judgment
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MHCC010008892020
Lodged on : 21.01.2020
Registered on : 17.02.2021
Decided on : 01.07.2023
Duration : 03Y 05M 10D
EXHIBIT-13
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
SUIT NO. 532 OF 2021
SMT.SAVITA LAXMIDAS BHADRICHA]
Age 70 years, Indian Inhabitant, ]
W/f. Late Laxmidas Velji Bhadricha ]
Having its residential address a ]
Shripati Apartment, Room No.14, ]
4th Floor, Chandawadi, Opp. BMC ]
Ward Office, Mumbai- 400 002. ].. Plaintiff.
V/s.
1. MUNICIPAL CORPORATION OF ]
GREATER MUMBAI, (MCGM), ]
Having its office at “C”Ward, 76, ]
Shrikant Palkar Marg, ]
Off Chandanwadi, Mumbai–400 002. ]
2. SENIOR P. I. ]
L. T. Marg Police Station, ]
Mumbai. ]..Defendants.
Advocate Mr. Y. S. Singh for the plaintiff.
Advocate Mrs. Chandramore for BMC/defendant No.1.
Advocate Mr. Kapse for State/defendant Nos.2.
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CORAM : HIS HONOUR JUDGE
SHRI VAIBHAV V. PATIL
(C.R.No.09).
DATE : 1ST JULY 2023.
JUDGMENT
Present suit is instituted for the relief of death declaration
that Mr. Laxmidas Velji Bhadricha is presumed to be Civil dead as he
has not been heard of for more than 7 years and for giving directions to
the defendants for issuance of death certificate.
2. It is the case of plaintiff that she was wife of Mr. Laxmidas
Velji Bhadricha, who has been missing and disappeared since
14.01.1993 from Marine Lines, Mumbai in the incident of Mumbai riots.
After the search, the nephew of the plaintiff filed missing complaint of
Mr. Laxmidas Velji Bhadricha with the Senior Police Inspector, Crime
Branch, Mumbai. Accordingly, Missing Certificate was issued by the
Crime Branch dated 18.01.1993. The news in respect of missing of Mr.
Laxmidas Velji Bhadricha also published on 21.01.1993 in the daily
newspaper “Mumbai Samachar” Gujarati edition.
3. It is further case of the plaintiff that on 11.03.1993, after
two months from the missing of Mr. Laxmidas Velji Bhadricha, the
plaintiff and her mother made an application to the Commissioner of
Police, Mumbai in respect of the help from the Chief Minister Fund. The
missing complaint had been published in the newspaper as well as on
Television. The Application dated 11.03.1993 filed before the
Commissioner of Police, Mumbai be treated a Notice under section 80 of
the C.P.C. The plaintiff claimed that she has been deprived of various
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benefits which could be given to her on getting death certificate of her
husband. Therefore, the declaration sought is essentially in the nature
of establishing the legal character of the plaintiff so as to enable her to
obtain benefits under various schemes.
4. It is further case of the plaintiff that the entire cause of
action has arisen in Mumbai. Therefore, this Court has jurisdiction to
entertain, try and dispose of this Suit. The plaintiff has not filed any
other suit or proceedings before this Court or any other Court arising
out of subject matter of the suit. The present suit is not barred by law of
limitation. Hence, the plaintiff has prayed for decree of the suit.
5. The defendants have not filed its written statement. Hence,
suit proceeded without written statement of the defendants.
6. I have heard learned advocate for the plaintiff and the
learned advocate for defendant No.1/BMC.
7. Considering the plaint, documents produced on record and
oral evidence of the Plaintiff and submissions of both learned advocates,
following points arise for my determination and I have recorded my
findings to each of them for the reasons stated below.
Sr.
No.
POINTS FINDINGS
1 Whether the plaintiff is entitled to a decree for
declaration that Mr. Laxmidas Velji Bhadricha
is presumed to be dead as per Section 108 of
the Indian Evidence Act 1972 ?
In the
Affirmative
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2 Whether plaintiff proves that she is entitled for
a Death Certificate in the name of Mr.
Laxmidas Velji Bhadricha ?
In the
Affirmative
3 What Order and decree ? As per Final Order
R E A S O N S
AS TO POINT NOS.1 TO 3 :
8. As all three points are related with each other, they are
discussed together to avoid repetition.
9. The plaintiff has filed her Affidavit of Evidence at Exhibit-6
and deposed on oath and she has reiterated all the contentions in her
plaint in the Affidavit Evidence. She was cross-examined by the
advocate of defendant No.1. In cross examination she has deposed that
her husband is missing since 1992. They tried to search him and find
him everywhere and also lodged police complaint, but he could not be
found. She admitted that she had not filed application to Corporation
for issuing death certificate of her husband. She had not issued notice
to the Corporation prior to filing the suit. The advocate for defendant
No.2 absent when called out. Hence, no cross-examination order was
passed.
10. In support of the suit claim, the plaintiff has produced on
record list of documents vide Exh.7. The plaintiff has produced original
copy of the Application dated 11.03.1993 filed before the Commissioner
of Police, Mumbai regarding missing of Mr. Laxmidas Velji Bhadricha in
the incident of Mumbai riots (Exh.8). The plaintiff has produced on
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record original copy of death certificate of the plaintiff’s mother dated
25.08.2019 (Exh.9), original copy of letter dated 24.10.2019 addressed
to Indian Navy at Naval Dockyard at Mumbai for Family Pension of her
husband (Exh.10) and original copy of letter dated 02.12.2019 issued
by Admiral Superintendent for her family pension (Exh.11). The
learned advocate for the plaintiff has filed evidence closed pursis
(Exh.12).
11. The learned advocate for defendant No.1 submitted that
the suit is barred by law of limitation. She further submitted that the
husband of the plaintiff went missing since 14.01.1993. Therefore, she
ought to have instituted the suit within three years from 14.01.2000 i.e.
from the date of cause of action, to which she failed. Hence, suit is
barred by law of limitation. In reply, the learned advocate for the
plaintiff submitted that the plaintiff did not hear anything about her
husband since 1993 and the cause of action for institution of the suit is
recurring one and until the plaintiff realized that her husband cannot be
traced, she cannot be compelled to institute the suit for declaring him
dead. Therefore, the suit is within limitation.
12. Here reference needs to be made to section 108 of the
Indian Evidence Act which runs as under;
Section 108: Burden of proving that person is alive
who has not been heard of for seven years - Provided
that when the question is whether a man is alive or
dead, and it is proved that he 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 to the person who affirms it.
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13. In the present case, it is evident that the husband of the
plaintiff went missing since 14.01.1993. The plaintiff has deposed on
oath that she took all the efforts to find him and also lodged missing
complaint with police, but police also could not trace him. Despite of
their efforts, they could not find the missing person. The plaintiff also
issued public notice in newspaper. Thus, it is proved from the evidence
produced on record by the plaintiff that her husband was missing since
14.01.1993 and despite all the efforts to find him, he could not be
found. Therefore, presumption under section 108 of the Indian
Evidence Act comes into play. Section 108 of the Indian Evidence Act
enables the Court under the circumstances stated therein to draw the
statutory presumption that a man is not alive unless the contrary is
proved by the opposite party. In the present case, nobody has come
forward to state that the missing person is alive. Even the defendants
have not raised contention that the missing person is alive. Therefore, in
such circumstances, presumption under section 108 of the Indian
Evidence Act can be raised in this case.
14. In the circumstances above in view of above documents
and the oral evidence, plaintiff has proved that her husband went
missing since 14.01.1993. The defendants have not disputed the said
fact that he is still missing and his whereabouts are not traced.
15. So far as the contention of the learned advocate for the
defendants regarding the bar of limitation is concerned, it is pertinent
to note that the cause of action for filing the present suit arose after
lapse of seven years from the date of missing person i.e. from
14.01.1993. As per contention of the learned advocate for the
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defendant No.1, the plaintiff has not filed suit within limitation.
However, cause of action for filing the present suit is recurring one and
there is continuous cause of action and therefore, it cannot be said the
suit is barred by law of limitation. Therefore, submission made by the
learned advocate for the defendant No.2 in this regard cannot be
accepted. Thus, it is crystal clear that the suit is very well within
limitation.
16. In view of all above discussion, I have come to the
conclusion that Mr. Laxmidas Velji Bhadricha is found to be missing
since 14.01.1993 i.e. for more than period of seven years. As stated
above, the legal presumption is attracted under section 108 of the
Evidence Act that he is dead. I therefore, hold that the plaintiff is
entitled for declaration to that effect.
17. The State is under statutory obligation to maintain the
record of birth and death of citizens. Therefore, in view of above
discussions, the plaintiff is entitled for death certificate of her husband
to be issued by the defendant No.1.
18. In the circumstances above, I have come to the conclusion
that plaintiff is entitled to the declaration as prayed for. Accordingly, I
answer point Nos. 1 and 2 in the affirmative and in answer to point
No. 3, I proceed to pass following order.
ORDER
1. The suit is hereby decreed.
2. It is hereby declared that the husband of plaintiff i.e.
Mr. Laxmidas Velji Bhadricha is not being heard of for
more than last seven years and he is Civil Dead.
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3. The defendants are directed to register the death of
husband of plaintiff i.e. Mr. Laxmidas Velji Bhadricha
and issue death certificate accordingly.
4. No order as to costs of the suit.
5. Decree be drawn accordingly.
6. The original documents, if any be returned to the
plaintiff after the appeal period is over.
7. The suit stands disposed of accordingly.
(VAIBHAV V. PATIL)
Judge,
City Civil Court,
Date: 01.07.2023 Gr.Mumbai.
Dictated on : 01.07.2023
Typed on : 01.07.2023
Signed on : 01.07.2023
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
01/07/2023 At 05.00 P.M. MRS. SUPRIYA S.PAWAR
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (With Court Room
Number)
HHJ MR. VAIBHAV V. PATIL
(C.R.NO.09)
Date of pronouncement of Judgment/
Order
01/07/2023
Judgment/Order signed by P.O. on 01/07/2023
Judgment/Order uploaded on 01/07/2023
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