Final Order 1

Order Details: Copy of Judgment
Pdf Text: 1 Judgment in L.C. Suit No. 3382019
MHCC010010142019
Presented on : 25-01-2019
Registered on : 07-02-2019
Decided on : 16-11-2022
Duration : 3 yrs, 9 mths, 22 days
Exhibit :14
IN THE BOMBAY CITY CIVIL COURT AT MUMBAI
L.C. SUIT NO. 338 of 2019
Mukund Jasbhai Patel ]
age 58 years, Occ. Service ]
2250/34, Rangari Building ]
Maharashtra High School ]
Maidan N.M. Joshi Marg ]
Mumbai 13 ]...Plaintiff.
Versus
1. The State of Maharashtra Through ]
Secretary, Home Dept, Mantralaya ]
Mumbai – 400 031 ]
2. Brihanmumbai Municipal ]
Corporation of Greater Mumbai ]
Mahanagarpalika Marg, ]
G. South Ward, N.M. Joshi Marg ]
Mumbai 400 013. ]... Defendants.
Appearances:
Ld Advocate Boricha for Plaintiff.
Ld Advocate Khatib for Defendant No.1.
Ld Advocate Chandramore for Defendants No.2/MCGM.
CORAM : SHRI. K.P. KSHIRSAGAR
JUDGE, (C.R.NO.08)
DATE : 16/11/2022.
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2 Judgment in L.C. Suit No. 3382019
JUDGMENT
This is a suit for declaration that Mr. Bhupendrabhai
Becharbhai Patel is dead and for mandatory injunction directing
defendant No.2 to record the death and to issue the death certificate
of Mr. Bhupendrabhai Becharbhai Patel.
Plaintiff's case in brief is as under:
2) Mr. Bhupendrabhai Becharbhai Patel was the paternal
uncle of plaintiff and he was residing with the plaintiff's family
members at Rangari Building, Maharashtra High School Maidan,
N.M. Joshi Marg, Mumbai400013. Mr. Bhupendrabhai Becharbhai
Patel went missing since 16/9/2008 from his above home. In spite of
the efforts he was not found. Therefore, missing complaint was filed
to Kalachowki police station on 18/9/2008 and it was registered on
21/9/2008. After investigation also Mr. Bhupendrabhai Becharbhai
Patel was not found. Mr. Bhupendrabhai Becharbhai Patel has not
been heard by the plaintiff or those who would naturally have heard
of him if he had been alive for last more than 10 years. Therefore,
plaintiff prayed for declaration that his uncle Mr. Bhupendrabhai
Becharbhai Patel is dead and for mandatory injunction directing
defendant No.2 to issue death certificate of Mr. Bhupendrabhai
Becharbhai Patel.
3) Inspite of opportunity defendants failed to file their written
statement. Therefore, suit is proceeded without written statement of
defendants.
4) Following points arise for determination and court has
recorded its decision thereon for the reasons stated there under::
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3 Judgment in L.C. Suit No. 3382019
SR.NO. POINTS DECISION
1) Whether plaintiff proves that, his uncle
Mr. Bhupendrabhai Becharbhai Patel
has not been heard for more than last
7 years by those who would naturally
have heard of him if he had been alive
and therefore, he has to be presumed
to be dead?
Proved.
2) Whether the plaintiff is entitled for the
relief of declaration as prayed?
Yes.
3) Whether the plaintiff is entitled for
mandatory injunction as prayed?
No.
4) What Order and decree? As per final order.
REASONS
5) In order to prove his claim, plaintiff examined himself as
P.W.1 by filling his Affidavit in lieu of examinationinchief vide
Exhibit 5 and 5A. Plaintiff also relied upon various documents like
original certificate issued by PI of Kalachowki police station Exh.7,
office copy of plaintiff's application Exh.8, certificate Exh.9, office
copy of notice Exh.10, original ration card Exh.11, Identity card of
Mr. Bhupendrabhai Becharbhai Patel Exh.12, etc. On the other hand,
defendants did not adduce any reply or documentary evidence.
6) Heard arguments advanced by Ld. Advocate for plaintiff
and Ld. Advocate for defendants No.1 and 2.
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4 Judgment in L.C. Suit No. 3382019
As to point no. 1:
7) In respect of fact in this point, Mr. Mukund Jashbhai
Patel P.W.1 i.e. plaintiff vide his affidavit of evidence Exhibit No.5
and 5A deposed in accordance with his claim. P.W.1 categorically
deposed that his uncle Mr. Bhupendrabhai Becharbhai Patel went
missing since 16/9/2008. Inspite of search Mr. Bhupendrabhai
Becharbhai Patel was not found. Missing complaint was lodged with
Kalachowki police station and police issued certificate that Mr.
Bhupendrabhai Becharbhai Patel is not traced. The documents
produced and proved by the plaintiff corroborates the testimony of
plaintiff. Testimony of plaintiff is not shaken in his cross examination.
8) It is also not the defence of the defendants that Mr.
Bhupendrabhai Becharbhai Patel is alive and he was seen or heard
within last seven years. As such, there is no reason so as to disbelieve
the testimony of plaintiff that his uncle Mr. Bhupendrabhai
Becharbhai Patel has not been heard for last 7 years or more by those
who would naturally have heard of him, if he had been alive.
Therefore, from the matter on record this Court held that the plaintiff
proved the fact by preponderance of probabilities that Mr.
Bhupendrabhai Becharbhai Patel has not been heard for last 7 years
or more by those who would have naturally heard of him, if he had
been alive. Therefore, presumption under Section 108 of the Indian
Evidence Act will have to be raised. As the defendants did not affirm
that Mr. Bhupendrabhai Becharbhai Patel is alive, it will have to be
presumed as per Section 108 of the Indian Evidence Act that Mr.
Bhupendrabhai Becharbhai Patel is dead.
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5 Judgment in L.C. Suit No. 3382019
9) Considering the matter on record and above discussion,
Court held that plaintiff proved by preponderance of probability the
fact that Mr. Bhupendrabhai Becharbhai Patel has not been heard for
last 7 years or more by those who would naturally have heard of him,
if he had been alive and therefore he is presumed to be dead.
Therefore, point no. 1 is answered in Affirmative.
As to point no. 2:
10) In view of affirmative finding as to point no. 1, the Court
held that the plaintiff is entitled for declaration of civil death of Mr.
Bhupendrabhai Becharbhai Patel Therefore, point no. 2 is answered
in Affirmative.
As to point no. 3:
11) Plaintiff has prayed for the relief of mandatory injunction
directing the defendant to issue death certificate of Mr.
Bhupendrabhai Becharbhai Patel. However, presumption under
Section 108 of the Indian Evidence Act is about death and there is no
presumption as to the time or date of death of the person. There is no
evidence on record about date of death of uncle of plaintiff.
Moreover, as per the provisions of the Registration of Births and
Deaths Act 1969, special procedure/remedy is provided for
registration of delayed births and deaths. Therefore, in view of the
provisions of the Registration of Births and Deaths Act 1969, this
Court finds that there is implied bar of jurisdiction of the Civil Court
for directing the defendant to register the death of Mr.
Bhupendrabhai Becharbhai Patel and to issue death certificate.
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6 Judgment in L.C. Suit No. 3382019
12) Considering the matter on record and above discussion,
this Court held that the plaintiff is not entitled for the relief of
mandatory injunction, as prayed. Therefore, point no. 3 is answered
in negative.
As to point no. 4:
13) In view of the affirmative decision as to issue nos. 1 and
2 and negative decision as to issue no.3, the suit deserves to be partly
decreed with proportionate cost. Therefore, Court proceeds to pass
the following order :
ORDER
1. Suit is partly decreed with proportionate cost.
2. It is hereby declared that Mr. Bhupendrabhai
Becharbhai Patel Bechharbhai Patel is dead.
3. Decree be drawn up accordingly.
(K.P.KSHIRSAGAR)
Judge
Dt.: 16/11/2022 City Civil Court,
Gr. Mumbai
Dictated on : 16/11/2022
Typed on :17/11/2022.
Checked on: 18/11/2022.
Corrected & Signed on : 22/11/2022.
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7 Judgment in L.C. Suit No. 3382019
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
23/11/2022 Mrs. S.A. Shekade.
Name of the Judge (With Court room
no.)
SHRI K.P. Kshirsagar (Court Room
No.08)
Date of Pronouncement of
JUDGMENT/ORDER
16/11/2022
JUDGMENT/ORDER signed by P.O.
on
22/11/2022
JUDGMENT/ORDER uploaded on 23/11/2022
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