Final Order 1

Order Details: Copy of Judgment
Pdf Text: 1 Judg in SC SU 55218
Received on : 20/01/2018
Registered on : 20/01/2018
Decided on : 14/02/2019
Duration : Yr. M. D.
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IN THE BOMBAY CITY CIVIL COURT AT MUMBAI.
S.C. SUIT NO.552 OF 2018.
(CNR No.MHCC010011762018)
Mrs. Sushila Laxman Pote, }
Age:55 years, Occupation: Houewife, }
Residing at Room No.602, A Wing, }
Sarkar Residency, Angirwadi, Mazgaon, }
Mumbai400 010. }...PLAINTIFF.
Versus
1.Asstt. Municipal Commissioner, ''E'' Ward, }
Municipal Corporation of Greater Mumbai, }
Public Health Department, }
10, Shaikh Hafizuddin Marg, }
Byculla, Mumbai400 008. }
2.The Medical Officer of Health '' E' Ward }
Municipal Corporation of Greater Mumbai, }
Public Health Department, }
10, Shaikh Hafizuddin Marg, }
Byculla, Mumbai400 008. }
3.State of Maharashtra. }...DEFENDANTS.
Shri.Saeed A. Thakur, learned advocate for the plaintiff.
Shri.Suryawanshi, learned advocate for defendant Nos.1&2.
Shri.Khatib, learned AGP for defendant No.3.
CORAM : HIS HONOUR JUDGE SHRI.P.P.RAJVAIDYA (C.R.NO.12)
ORAL JUDGMENT
(Delivered on 14/02/2019)
1. This is a suit for declaration of civil death.
2. In brief, case of plaintiff may be stated as under.
Husband Laxman Natha Pote of the plaintiff is missing
since 14/11/2007. Despite search in the vicinity & despite making
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inquiries with the relatives, said Laxman could not be found out hence,
plaintiff lodged complaint with PS Byculla on 15/11/2007 bearing
No.502/2007. PS Byculla has issued letter dtd.22/11/2014 and Crime
Branch of PS Mumbai has issued letter dtd.10/01/2015 vide reference
No.101/2015 that Laxman Pote could not be traced out by the police
for a period of seven years. Paper publication was also issued by the
plaintiff in Newspaper Maharashtra Times on 29/11/2007 but
thereafter also, Laxman Pote did not turn up.
3. Plaintiff had visited the office of defendant No.2 with a
request for issuance of death certificate of Laxman Pote but, defendant
No.2 has advised her to obtain decree of declaration from the court.
Plaintiff has served statutory notices upon the defendants & by giving
reply, defendant Nos.1 & 2 have informed her that they need
appropriate order of the court to issue death certificate. Laxman Pote is
presumed to be dead as per presumption under Section 108 of Evidence
Act as he is missing since last more than 10 years.
On these grounds, plaintiff has claimed relief to declare
that Laxman Natha Pote not having been heard of for last more than 10
years, he shall be declared as dead.
4. Defendants failed to file their Written Statements.
5. Following Points arose for my consideration. I answered
those points for the reasons stated thereunder.
POINTS FINDINGS
1.Does the plaintiff prove that Laxman Natha
Pote is not heard by those who would have
naturally heard of him since date of his missing
i.e.14/11/2007, if he would have been alive? ...Yes.
2.Is the plaintiff entitled for declaration as
sought? ...Yes.
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3.What order and Decree? ...As per final order.
R E A S O N S
6. Plaintiff has examined herself as PW1 Sushila by filing her
affidavit of examinationinchief at Exh.6. Besides it, plaintiff has
produced copy of her Adhar card at Exh.9, Election ID card of Laxman
Pote at Exh.10, ration card at Exh.11, missing complaint
dtd.27/11/2007, certificates issued by the police at Exh.12, Newspaper
dtd.29/11/2007 at Exh.13, office copy of notice dtd.18/12/2017 issued
to defendant No.2 at Exh.14, reply notice of defendant No.2 at Exh.15
and public notices issued in English and Marathi Newspapers at Exh.16.
I have heard learned Shri.Thakur, advocate for the plaintiff and learned
Shri.Suryawanshi, advocate for defendant Nos.1 & 2. Nobody appeared
for defendant No.3 to advance argument. I have also gone through the
written notes of argument filed by learned advocate for the plaintiff.
AS TO POINT NOS.(1) & (2):
7. PW1 Sushila has reiterated most of the contents of plaint
Exh.1 in her affidavit of examinationinchief. Her evidence that her
husband Laxman Natha Pote is missing since 14/11/2007 and despite
lodging missing report with the police, her husband could not be traced
out hence, police has issued certificates to that effect is supported by the
documents produced on record by her. As defendants have failed to
contest the suit by filing Written Statement, it will have to be held that
the evidence adduced and produced by plaintiff is acceptable.
8. Learned advocate for plaintiff argued that suit for relief of
declaration of civil death is maintainable. In support of his argument,
learned advocate for the plaintiff has placed reliance on the following
authorities.
i)Judgment dtd.17/2/2016 of Hon'ble Bombay High Court in Second
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Appeal No.34/2016 in a matter between Smt.Sushila W/o. Babulalji
Sawal and Ors. Vs. State of Maharashtra.
ii)Judgment dtd.26/02/2016 of Hon'ble Bombay High Court in Second
Appeal No.18/2016 in a matter between Sou.Swati w/o. Abhay
Deshmukh and Ors. V/s. Abhay Purushottam Deshmukh and Anr.
I have gone through those authorities.
9. In these recent authorities, Hon'ble Bombay High Court has
laid down that suit filed by the blood relatives of a person not being
heard of for more than 7 years for declaration of civil death of such a
person is maintainable.
10. As mentioned earlier, plaintiff has produced proper
material to show that Laxman Natha Pote is missing since 14/11/2007
& despite diligent search, he could not be traced out. Plaintiff has
claimed herself to be the wife of Laxman. Her said evidence has found
support from the entries in the ration card. As plaintiff is wife of
Laxman Pote, suit filed by her for relief of declaration of civil death of
her husband Laxman Pote is maintainable as is laid down in the
authorities cited above. Nobody has come forward till date despite
issuance of Paper Publications in widely circulating Newspapers for
claiming that Laxman is seen alive by anybody for last more than 7
years before filing of the suit hence, presumption under Section 108 of
Evidence Act would attract for presuming that Laxman Pote is dead due
to which, plaintiff is entitled for declaration in that regard.
11. Plaintiff has also claimed relief to direct defendant Nos.1
and 2 to issue death certificate of Laxman Pote. In my opinion, it is not
necessary to issue said direction because, plaintiff can file appropriate
application with those defendants for issuance of death certificate of
Laxman Pote on the basis of the decree passed in this suit hence, I hold
that plaintiff is not entitled for the said relief. For all these reasons, I
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answered Point Nos.(1) & (2) accordingly and pass the following order.
O R D E R
S.C. Suit No.552/2018 is decreed as under.
It is hereby declared that missing person Laxman Natha
Pote is presumed to be dead as he is not heard of since
14/11/2007.
A decree be drawn up accordingly.
Date: 14/02/2019. (P. P. RAJVAIDYA)
Direct dictated on : 14/02/2019. Judge, C.R.No.12,
Checked on : 16/02/2019. City Civil Court,
Signed on : 16/02/2019. Gr. Bombay.
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER”
16/02/2019 at 1.00 p.m. Mrs.Rupali S. Bhor
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge(with CR No.) HHJ SHRI. P.P.RAJVAIDYA
(C.R.No.12)
Date of pronouncement of Judgment 14/02/2019.
Judgment signed by P.O. on 16/02/2019.
Judgment uploaded on 16/02/2019.
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