Final Order 1

Order Details: Copy of Judgment
Pdf Text: 1
MHCC010010882020
Lodged on : 20.01.2020
Registered on : 18.02.2020
Decided on : 28.07.2023
Duration : 03Y 06M 08D
EXHIBIT-16
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
SUIT NO. 525 OF 2020
MRS. SANGITA RAMESH MORE ]
Age : 38 years, Occupation : Service ]
Residing at Ghatipada More Chawl ]
B.R. Road, Near BMC School, ]
Mulund (West), Mumbai 400 080. ].. Plaintiff.
V/s.
1. THE SENIOR INSPECTOR OF ]
POLICE, Mulund Police Station, ]
Mulund West, Mumbai 400 080. ]
2. THE ASSISTANT MUNICIPAL ]
COMMISSIONER, T Ward, ]
Municipal Office, Devidayal Road, ]
Near Pach Rasta Junction, ]
Mulund West, Mumbai. ]..Defendants.
Advocate Mr. Sunil J. Kanoujia for the plaintiff.
Advocate Mr. Khatib for State/defendant No.1.
Advocate Mrs. Chandramore for BMC/defendant No.2.
-- 1 of 9 --
2
CORAM : HIS HONOUR JUDGE
SHRI VAIBHAV V. PATIL
(C.R.No.09).
DATE : 28TH JULY 2023.
JUDGMENT
Present suit is instituted for the relief of death declaration
that Mr. Ramesh Bhoru More is presumed to be Civil dead and for
giving directions to the defendants for issuance of death certificate.
2. It is the case of plaintiffs that she is legally wedded wife of
Mr. Ramesh Bhoru More. On 26.03.2012, Mr. Ramesh Bhoru More
went out of his residence, but did not return back to home. The family
members of the plaintiff tried hard to find out the whereabouts of Mr.
Ramesh Bhoru More, but he was not traceable. The plaintiff even made
inquiry from her relatives, but nobody were aware about the plaintiff’s
husband. The plaintiff’s husband Mr. Ramesh Bhoru More is missing
since 26.03.2012 and his whereabouts are not known. Therefore, the
plaintiff has lodged a missing complaint of Mr. Ramesh Bhoru More in
Mulund Police Station on 01.06.2012 and the police have recorded the
missing complaint in their Missing Person Register at Serial No.55 of
2012. By a letter dated 04.06.2012, the Sr. Inspector of Police requested
the Asstt. Commissioner of Police to publish the photograph of Mr.
Ramesh Bhoru More on Television.
3. It is further contention of the plaintiff that despite various
efforts made by her as well as the Police Authorities, the said Mr.
Ramesh Bhoru More is not traceable. More than 7 years expired since
the said Mr. Ramesh Bhoru More is missing. At the request of the
-- 2 of 9 --
3
plaintiff, Mulund Police Station has issued a Certificate dated
05.07.2019 thereby certified that Mr. Ramesh Bhoru More is missing
since 26.03.2012. It is contended by the plaintiff that it is presumed
under law that if the whereabout of any person is not known for more
than 7 years then such person can be declared as dead. The plaintiff
through her advocate letter dated 08.10.2019 issued Notice under
section 80 of the C.P.C. to the defendants. Hence, the present suit is
maintainable. The cause of action has arisen on 26.03.2019 when 7
years completed since Mr. Ramesh Bhoru More is missing. Hence,
prayed for decree of the suit.
4. The defendant Nos.1 and 2 though appeared, failed to file
their written statement. Hence, suit proceeded without written
statement of the defendants.
5. Perused plaint and documents filed by the plaintiff. I have
heard learned advocates for both the sides.
6. Considering the plaint, documents produced on record and
oral evidence of the Plaintiff, 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 plaintiffs are entitled to a decree
for declaration that Mr. Ramesh Bhoru More is
presumed to be dead as per Section 108 of the
Indian Evidence Act 1972 ?
In the
Affirmative
-- 3 of 9 --
4
2 Whether plaintiff proves that she is entitled for
a Death Certificate in the name of Mr. Ramesh
Bhoru More ?
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 :
7. As all three points are related with each other, they are
discussed together to avoid repetition.
8. The plaintiff has filed her Affidavit of Evidence at Exhibit-5
and deposed on oath and she has reiterated all the contentions in the
plaint in her Affidavit of Evidence. She was cross-examined by both the
advocates for defendants. In cross examination she has deposed that her
husband went missing since 26.03.2012 from their home. They tried to
search him everywhere and at all religious places, but he could not be
found. On 01.06.2012, they lodged police complaint in Mulund Police
Station. Police also could not trace him and issued her certificate about
missing of her husband. She admitted that she has not issued notice
under section 80 of C.P.c. to the State before institution of the suit. In
cross examination she admitted that she had not issued prior notice to
the State before institution of the suit. She had approached BMC for
getting Death Certificate of her missing husband, but she was asked to
bring Order from the Court. She had not issued prior notice to the BMC
before institution of the suit.
9. In support of the suit claim, the plaintiff has produced on
record list of documents vide Exh.6. The plaintiff has produced
-- 4 of 9 --
5
Marriage Certificate of plaintiff (Exh.7), Official Gazette dated 14-20
July 2022 (Exh.8), Ration Card of Mr. Ramesh Bhoru More (Exh.9),
Election Card of Mr. Ramesh Bhoru More (Exh.10), Election Card of the
plaintiff (Exh.11), Aadhar Card of the plaintiff (Exh.12) and Pan Card
of plaintiff (Exh.13). The plaintiff has produced Certificate dated
05.07.2019 issued by Mulund Police Station (Exh.14) which disclosed
that Mr. Ramesh Bhoru More has been missing since 26.03.2012 and
that he has not been traced. The learned advocate for the plaintiff has
filed evidence closed pursis (Exh.15).
10. The learned advocate for defendants submitted that the suit
is barred by law of limitation. He further submitted that the Mr. Ramesh
Bhoru More went missing since 26.03.2012. Therefore, plaintiffs 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 plaintiffs
did not hear anything about Mr. Ramesh Bhoru More since 2012 and
the cause of action for institution of the suit is recurring one and until
the plaintiffs 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.
11. 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
-- 5 of 9 --
6
him if he had been alive, the burden of proving that he
is alive is shifted to the person who affirms it.
12. In the present case, it is evident that the husband of the
plaintiff went missing since 26.03.2012. The plaintiff has deposed on
oath that they took all the efforts to find him. She also lodged missing
complaint with police, but police also could not trace him. Despite of
their efforts, they could not find Mr. Ramesh Bhoru More. Thus, it is
proved from the evidence produced on record by the plaintiff that her
husband was missing since 26.03.2012 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
defendant has 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.
13. In the circumstances above and in view of above
documents and the oral evidence, plaintiff has proved that her husband
went missing since 26.03.2012. The defendants have not disputed the
said fact that he is still missing and his whereabouts are not traced.
14. 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
-- 6 of 9 --
7
26.03.2012. As per contention of the learned advocate for the
defendants, 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 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.
15. In view of all above discussion, I have come to the
conclusion that Mr. Ramesh Bhoru More is found to be missing since
26.03.2012 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.
16. 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 defendants.
17. 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.
-- 7 of 9 --
8
2. It is hereby declared that the husband of plaintiff
Mr. Ramesh Bhoru More 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
Mr. Ramesh Bhoru More 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
plaintiffs after the appeal period is over.
7. The suit stands disposed of accordingly.
(VAIBHAV V. PATIL)
Judge,
City Civil Court,
Date: 28.07.2023 Gr.Mumbai.
Dictated on : 28.07.2023
Typed on : 31.07.2023
Signed on : 01.08.2023
-- 8 of 9 --
9
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
01/08/2023 At 4.00 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
28.07.2023
Judgment/Order signed by P.O. on 01.08.2023
Judgment/Order uploaded on 01.08.2023
-- 9 of 9 --