Order 1

Order Details: Copy of Judgment
Pdf Text: 1
Lodged on : 20.01.2018
Registered on : 26.02.2018
Decided on : 12.12.2022
Duration : 04Y 10M 21D
EXHIBIT-12
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
S. C. CIVIL SUIT NO. 650 OF 2018
( CNR No.MH-CC-01-001166-2018)
MR. ANIL GAJANAN NAIK ]
An adult Hindu Inhabitant, ]
Residing at Flat No.102, ]
1st Floor, ‘A” Wing, Om Shree Sai ]
Shraddha-A, Neelam Nagar ]
Phase-1, Om Shree Sai ]
Shraddha CHSL, V. B. Phadke ]
Road, Near Amol CHSL, ]
Mulund (E), Mumbai-400081. ].. Plaintiff.
V/s.
1. THE STATE OF MAHARASHTRA ]
Through Senior Inspector of ]
Police, Mulund Gawanpada ]
Police Station, Mumbai-400081. ]
2. MUNICIPAL CORPORATION OF ]
GREATER MUMBAI, A Statutory body]
Established under the provisions of ]
Mumbai Municipal Corporation ]
Act, 1888, having their Head office at]
Mahapalika Marg, Mahapalika ]
Bhavan, Fort, Mumbai, Through ]
Assistant Municipal Commissioner ]
M/East. ]..Defendants.
Advocate Mr. Arvind Taral for the plaintiff.
Advocate Mr. Khatib for State/defendant No.1.
Advocate Mrs. Chandramore for BMC/defendant No.2.
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CORAM : HIS HONOUR JUDGE
SHRI SITARAM N. PATIL
(C.R.No.09).
DATE : 12th DECEMBER 2022
JUDGMENT
The suit is instituted for the relief of death declaration of
Mr.Gajanan Ramchandra Naik and condonation of delay if any and also
for directions be given to the defendants for issuance of death certificate
of missing perfather Mr. Gajanan Ramchandra Naik.
2. It is the case of plaintiff that he has lodged complaint with
Mulund Gawanpada Police Station on 12.01.1999 that his father
Mr. Gajanan Ramchandra Naik, aged 62 years, has been left the house
for last seven years. Therefore, the concerned police station has entrd
teehe entry in Register No.8/99 dated 12.01.1999 and issued the
Certificate of missing person on 03.01.2006. In pursuance to the
complaint, the police authority of Mulund Gawanpada Police Station
tried their level best to trace out whereabouts of the missing father of
the plaintiff Mr. Gajanan Ramchandra Naik.
3. It is the case of the plaintiff that even though after a several
efforts made by the plaintiff to find out Mr. Gajanan Ramchandra Naik,
their all level failed and they did not succeed to trace out him. From
12.01.1999 till today no news of aliveness of Mr. Gajanan Ramchandra
Naik is received by the plaintiff. The person missing more than seven
years, his death certificate is required to be issued by defendant No.2.
The death certificate of his father is required to produce before the
concerned authorities. Therefore, the plaintiff issued notice to both the
defendants.
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4. It is the case of plaintiff that cause of action arose on
03.01.2006 at Mulund, Mumbai when the police department issued
missing certificate in the name of missing person Mr. Gajanan
Ramchandra Naik. The suit is within limitation. The plaintiff did not
file any suit for the same cause in this Court or any other Court.
Therefore, the plaintiff has prayed for declaration.
5. Defendants did not file a written statement. Hence, suit
proceeded without written statement of the defendants.
6. I have heard learned advocate for the plaintiff, the learned
advocate for State/defendant No.1 and the learned advocate for BMC/
defendant No.2.
7. Considering the plaint, documents on record and oral
evidence of plaintiff and submissions of both learned advocates,
following points arise for my determination and my findings to them
are as stated below for the following reasons.
Sr.
No.
POINTS FINDINGS
1 Whether plaintiff has proved that Mr. Gajanan
Ramchandra Naik is missing and has not been
heard for more than 7 years?
In the
Affirmative
2 Whether plaintiff are entitled to the declaration
as prayed for?
In the
Affirmative
3 What Order and decree ? As per Final Order
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R E A S O N S
AS TO POINT NOS.1 TO 3 :
8. As all three points are related with each other. Hence, they
are discussed at once to avoid repetition.
9. The plaintiff has filed his Affidavit of Evidence by way of
examination-in-chief at Exhibit-4 and deposed on oath and he has
reiterated all the contentions in her plaint in the Affidavit. He was cross-
examination by both the defendants. In the cross-examination he has
admitted that he has filed present suit for getting death certificate of his
father. In the year 1999, his father was missing and he tried to search
him for two years at every possible place. He also deposed that he
lodged complaint to police on 12.01.1999 and he visited police station
many times for inquiry, but nothing transpired. Police issued Missing
Certificate to him in the year 2006. He did not issue any notice to the
Government before institution of the suit.
10. In support of the suit claim, the plaintiff has produced on
record Indemnity Bond (Exh.7 colly.) in favour of the plaintiff. The
plaintiff has produced Copies of Pan Card and Aadhar Card of the
plaintiff (Exh.8 colly.), Original Missing Complaint dated 03.01.2006
(Exh.9) and copy of Notice dated 21.09.2017 with acknowledgment
issued to the Government of Maharashtra and the Commissioner of
Mumbai Municipal Corporation (Exh.10). The learned advocate for the
plaintiff has filed evidence close pursis (Exh.13).
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11. The learned advocate for defendant No.1 submitted that
the suit is barred by law of limitation. It is not maintainable. He further
submitted that the father of the plaintiff went missing since 1999. The
plaintiff did not hear anything about him till the year 2006. Therefore,
she should have instituted the suit within three years from the year
2006 and the suit filed in the year 2018. Therefore, it is not within
limitation. In reply, the learned advocate for the plaintiff submitted that
the cause of action for institution of the suit is recurring one and until
the plaintiff realized that his father cannot be traced, he cannot be
compelled to institute the suit for declaring him dead.
12. The learned advocate for the plaintiff drawn my attentions
towards sections 107 and 108 of the Indian Evidence Act. It is further
submitted that burden of proving death of the father known to have
been alive within thirty years as mentioned in section 107 of the Indian
Act and period of seven years as mentioned in section 108 of the Indian
Evidence Act is minimum period. Therefore, the suit is within limitation.
The sections 107 and 108 of the Indian Evidence Act speak as under;
Section 107: Burden proving death of the father known
to have been alive within thirty years. When the
question is whether a man ia alive or dead and it is
shown that he was alive within thirty years, the burden
of proving that he is dead is on the father who affirms
it.
Section 108: Burden of proving that the father is alive
who has not been heard of for seven years. 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
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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 father who affirms it.
13. In the case of Smt. Narbada and Another V/s. Ram Dayal
reported in AIR 1968 Raj 48 wherein disclosed descriptions of sections
107 and 108 of the Evidence Act. Therefore, the said citation is
applicable.
14. In the case of Surat Rupchand Hingorani Vs Smt. Dayali
Khusaldas Mankani (since deceased) reported in Testamentary Petition
No. 1027 of 2015. In the matter, before Hon’ble Lordship, the father
went missing in the year 1989 and the petition was filed in the year
2015 which came to be allowed.
15. The learned advocate for the plaintiff has relied upon the
Judgment in the case of Kunvarjeet Singh, Khandpur V/s. Kirandeep
Kaur and others reported in AIR 2008 S.C. 2058, wherein it is held that;
“The right to apply would accrue when it becomes
necessary to apply which may not necessarily be
within 3 years from the date of the deceased’s
death.
The said citation is applicable to the fact of the present case.
16. It is clear that the plaintiff will institute the suit only when
the father of the plaintiff feels that his father cannot be traced out. He
cannot be compelled to institute such suit. Further-more, period of
seven years as mentioned in Sec. 108 of the Indian Evidence Act cannot
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be treated as mandatory period, but it is minimum period which gives
right to institute the suit. However, the cause of action is recurring one.
Therefore, suit cannot be stated to be barred by law of limitation.
17. In view of all above discussion, I have come to the
conclusion that Mr. Gajanan Ramchandra Naik is found to be missing
for a period of more than 22 years. The legal presumption is attracted
under section 108 of the Evidence Act that his father is dead. I
therefore, hold that the plaintiff is entitled for declaration to that effect.
18. The State is under statutory obligation to maintain the
record of birth and death. Therefore, the suit filed against the State is
maintainable. It is proved that Mr. Gajanan Ramchandra Naik is proved
to be not heard of for more than seven years, I hold that the legal
presumption arises that he is dead.
19. In the circumstances above, I have come to the conclusion
that plaintiff is entitled to the declaration as prayed for. Accordingly, I
answer points 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 father of plaintiff
i.e. Mr. Gajanan Ramchandra Naik 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 father of plaintiff i.e. Mr. Gajanan Ramchandra
Naik and issue death certificate accordingly.
4. No order as to costs of the suit.
5. Decree be drawn accordingly.
6. The suit stands disposed of accordingly.
(SITARAM N. PATIL)
Judge,
City Civil Court,
Date:12.12.2022 Gr.Mumbai.
Dictated on: 12.10.2022
Typed on : 12.10.2022
Signed on : 12.10.2022
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
13/12/2022 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. SITARAM N. PATIL
(C.R.NO.09)
Date of pronouncement of Judgment/
Order
12/12/2022
Judgment/Order signed by P.O. on 12/12/2022
Judgment/Order uploaded on 13/12/2022
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