Final Order 1

Order Details: Copy of Judgment
Pdf Text: 1
Lodged on : 21.01.2020
Registered on : 02.03.2020
Decided on : 10.05.2024
Duration : 04 Y : 03 M : 19 D
EXHIBIT-12
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
SUIT NO. 974 OF 2020
(C.N.R. NO. MHCC01-000910-2020)
Shalan Haribhau Ughade ]
Age 63 years, Occ. : Service ]
R/a. : Gautam Nagar, Opp. IIT ]
Main Gate, Powai, Mumbai – 400 076] ... Plaintiff.
V/s.
1. The State of Maharashtra, ]
Through the Chief Secretary, ]
State of Maharashtra, General ]
Administration Department, ]
Mantralaya, Mumbai – 400 032. ]
2. The Municipal Corporation ]
of Gr. Mumbai, Mahapalika Building ]
Mahapalika Marg, Fort, ]
Mumbai – 400 001 ] ...Defendants.
Advocates Ms. Richa Singh h/f. Adv. S. C. Singh for the plaintiff.
Advocate Mr. Sachin Kadam h/f. Adv. Khatib for Defendant No.1/State.
Advocate Ms. Chandramore for defendant No.2/BMC.
CORAM : HIS HONOUR JUDGE
SHRI VAIBHAV V. PATIL
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(C.R.No.09).
DATE : 10th MAY, 2024.
JUDGMENT
Present suit is instituted for the relief of death declaration
that Shri. Haribhau Bhikaji Ughade is presumed to be Civil dead as he
has not been heard of for more than 7 years.
2. It is the case of plaintiff that plaintiff is the wife of Shri.
Haribhau Bhikaji Ughade who went missing on 16.11.2008 from Powai,
Mumbai. The plaintiff took search of her husband but she could not find
him. Hence she lodged missing complaint of her husband on
04.01.2009 with Powai Police Station, Mumbai under A.M.R.
No.03/2009 and the police registered said complaint and recorded
missing report dated 04.01.2009. Thereafter, plaintiff, as well as police
made every possible efforts to trace Shri. Haribhau Bhikaji Ughade
however, he could not be found even-after due and diligent search.
Powai Police Station issued missing certificate on 10.05.2010.
3. It is further contention of the plaintiff that her husband’s
whereabouts are not known for last more than seven years. The cause
of action has arisen at Mumbai. Hence, this Court has jurisdiction to
entertain, try and dispose of this Suit. Hence, the plaintiff has sought
declaration that this Hon’ble Court be pleased to make an order of
presumption of death of Shri. Haribhau Bhikaji Ughade who is not
heard of for more than seven years under section 108 of Indian
Evidence Act, 1908.
4. Defendant Nos. 1 and 2 failed to filed their written
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statement. Hence, suit came to be proceeded without written statement
of defendant Nos.1 and 2.
5. In view of pleadings, following issues arises my
determination, I have recorded my findings to each of them for the
reasons stated below.
Sr.
No.
ISSUES FINDINGS
1. Whether the plaintiff proves that Shri.
Haribhau Bhikaji Ughade has not been
heard of for more than seven years, since
the date of missing i.e. 16.11.2008 ?
In the
Affirmative
2. Whether the plaintiff is entitled for decree of
declaration that Shri. Haribhau Bhikaji
Ughade is presumed to be dead as per Sec.
108 of the Indian Evidence Act?
In the
Affirmative
3. Whether the plaintiff is entitled for a Death
Certificate of Shri. Haribhau Bhikaji Ughade
to be issued by B.M.C.?
In the
Affirmative
4. What Order and decree ? As per Final Order
R E A S O N S
AS TO ISSUE NOS.1 TO 3 :
6. As all the points are related with each other, they are
discussed together to avoid repetition.
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7. The plaintiff has filed affidavit of evidence in lieu of
Examination-in-Chief at Exhibit-05. She has deposed on oath and she
has reiterated all the contentions in the plaint in the Affidavit of
Evidence. She was cross-examined by the advocates of defendants. In
cross examination she has stated that missing person is her husband
who went missing from 16.11.2008 from Powai, Mumbai and she had
lodged the missing complaint. In her cross-examination she stated that
she had not approached to BMC for issuing Death Certificate of her
husband. Further, she stated that she has not given notice to BMC prior
to institution of the suit.
8. In support of the suit claim, the plaintiff has produced on
record list of documents vide Exh.06. The plaintiff has produced on
record original Aadhar Card, Electricity Bill and Ration Card (Exh.07
Colly.), copy of certificate issued by Powai Police Station, Mumbai dated
10.05.2010 (Exh-08), copy of the Aaplla Mahanagar Newspaper
alongwith photographs and details of missing persons dated 01.09.2019
(Exh.09), original letter dated 25.04.2018 issued by plaitniff to Powai
Police Station (Exh.10).
9. The learned advocate for defendants submitted that the suit
is barred by law of limitation. It is further submitted that the husband of
the plaintiff went missing since 16.11.2008. Therefore, she ought to
have instituted the suit within three years 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 Shri. Haribhau Bhikaji Ughade
since 16.11.2008 and the cause of action for institution of the suit is
recurring one and until the plaintiff realized that her husband Shri.
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Haribhau Bhikaji Ughade cannot be traced, she cannot be compelled to
institute the suit for declaring him civil dead. Therefore, the suit is
within limitation. I find substance in the argument advanced on behalf
of the plaintiff. The cause of action for filing the present suit is recurring
one and there is continuous cause of action and therefore, it cannot be
said that the suit is barred by law of limitation. Therefore, submission
made by the learned advocate for the defendants in this regard cannot
be accepted. Thus, it is crystal clear that the suit is very well within
limitation.
10. 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.
11. In the present case, it is evident that the husband of the
plaintiff went missing since 16.11.2008. The plaintiff has deposed on
oath that she took all the efforts to find her missing husband and she
also lodged missing complaint with police, but police also could not
trace him. Despite of her efforts, she could not find the missing person.
Thus, it is proved from the evidence produced on record by the plaintiff
that her husband was missing since 16.11.2008 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
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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.
12. In view of above documents and the oral evidence, plaintiff
has proved that Shri. Haribhau Bhikaji Ughade went missing since
16.11.2008. The defendants have not disputed the said fact that he is
still missing and his whereabouts are not traced. 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.
13. The State is under statutory obligation to maintain the
record of birth and death of citizens. Therefore, in view of above
discussion, the plaintiff is entitled for death certificate of Shri. Haribhau
Bhikaji Ughade to be issued by the defendant No.2.
14. In the circumstances above, I have come to the conclusion
that plaintiff is entitled to the declaration as prayed for. Accordingly, I
answer Issue Nos.1 to 3 in the affirmative and in answer to Issue No. 4,
I proceed to pass following order.
ORDER
1. The suit No.974 of 2020 is hereby decreed.
2. It is hereby declared that the husband of the
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plaintiff Shri. Haribhau Bhikaji Ughade is not
being heard of for more than last seven years and
he is Civil Dead.
3. The defendants are directed to register the death
of Shri. Haribhau Bhikaji Ughade and to issue death
certificate accordingly.
4. No order as to costs of the suit.
5. Decree be drawn up 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: 10.05.2024 Gr.Mumbai.
Dictated on : 10.05.2024
Typed on : 10.05.2024
Signed on : 10.05.2024
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
10.05.2024 At 5.30 P.M. Ms. Manisha Hirole
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
10.05.2024
Judgment/Order signed by P.O. on 10.05.2024
Judgment/Order uploaded on 10.05.2024
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