Final Order 1

Order Details: Copy of Judgment
Pdf Text: 1
MHCC010014952018
Lodged on : 29.01.2018
Registered on : 03.08.2018
Decided on : 28.04.2023
Duration : 05Y 02M 27D
EXHIBIT16
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
SUIT NO. 2014 OF 2018
MR. MANDAR UMESH LOKE ]
Aged 34 years, Occupation: Service ]
Residing at C/o. 87/102, Gayatri ]
Building, 3rd Lane, Mantri Marg, ]
Hindu Colony, Dadar (East), ]
Mumbai 400014 ].. Plaintiff.
V/s.
1. THE STATE OF MAHARASHTRA ]
Mantralaya, Madam Cama Road, ]
Mumbai. ]
2. THE BRIHANMUMBAI ]
MUNICIPAL CORPORATION, ]
Officer of the Medical Officer ]
of Health and SubRegistrar, ]
S Ward, BMC, Bhandup (West), ]
Mumbai – 400 078. ]..Defendants.
Advocate Ms. Indrayani Koparkar for the plaintiff.
Advocate Mr. Khatib for State/defendant Nos.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 : 28th APRIL 2023.
JUDGMENT
The suit is instituted for the relief of death declaration that
Mr. Umesh Sudhakar Loke is presumed to be Civil dead as he has not
been heard of for more than 7 years and directions be given to the
defendants for issuance of death certificate of Mr. Umesh Sudhakar
Loke.
2. It is the case of plaintiff that he is the son of Mr. Umesh
Sudhakar Loke, who is missing 05.05.1996. The father of the plaintiff
went out from house to pay Telephone Bill, but he did not return at
home till date. The grandmother of the plaintiff has filed missing
complaint with Vikhroli Police Station. The Certificates for the same
has been issued on 22.02.2008 and on 29.02.2016 by Senior Police
Inspector, Vikhroli Police Station, Mumbai. On the basis of these
certificates, the plaintiff approached society to transfer flat in his name
with the consent and no objection from other legal heirs. The plaintiff
facing severe problems for transfer as his father was not heard for more
than 22 years. The cause of action has arisen since then and the
plaintiff has filed the present suit. The plaintiff that with the help of
police officers diligently searched his father, but could not succeed. The
plaintiff has not filed any other suit before any other Court on the same
cause of action or reliefs. Hence, the plaintiff has prayed for decree of
the suit.
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3. The Defendant No.1 has filed written statement vide Exh.4
and denied all the averments made in the plaint. It is submitted that the
suit filed by the plaintiff is misconceived, badinlaw and not
maintainable. The suit is bad for want of statutory Notice Under Section
80 of the C.P.C. The suit is barred by law of limitation. Therefore, the
same be dismissed with costs. The Defendant No.2 has not filed its
written statement. Hence, suit proceeded without written statement of
the defendant No.2.
4. I have heard learned advocate for the plaintiff, the learned
advocate for defendant No.1/State and learned advocate for defendant
No.2/BMC.
5. In view of pleadings, issues have been framed by my
learned predecessor on 18.06.2020 vide Exhibit5 and my findings to
them are as stated below for the following reasons.
Sr.
No.
POINTS FINDINGS
1 Does plaintiff prove that his father Umesh
Sudhakar Loke is missing since 05.05.1996
from Vikhroli (East), Mumbai and is not heard
of for more than seven years since the said
date ?
In the
Affirmative
2 Whether plaintiff is entitled for 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 :
6. As all three points are related with each other. Hence, they
are discussed at once to avoid repetition.
7. The plaintiff has filed his Affidavit in Examination in Chief
at Exhibit8 and deposed on oath and he has reiterated all the
contentions in his plaint in the Affidavit Evidence. He was cross
examination by the defendant No.1. In cross examination he has stated
that his father was missing from his address mentioned in title of plaint.
They tried to search his father at Mumbai and at their native place
Mithbav. His grandmother lodged complaint to Vikhroli police station
on 08.05.1996 regarding missing of his father. The Affidavit of Evidence
of PW2 Mrs. Nutan Naresh Gawkar who is brother of the plaintiff at
Exhibit13 and deposed on oath and she has reiterated all the
contentions in his plaint in the Affidavit Evidence.
8. In support of the suit claim, the plaintiff has produced on
record list of documents vide Exh.7. The plaintiff has produced copy of
the original copy of Certificate dated 22.02.2008 and 29.02.2016 issued
by Vikhroli Police Station (Exh.11) and Copy of the original copy of
Certificate issued by Grampanchayat (Exh.12). The learned advocate
for the plaintiff has filed evidence closed pursis (Exh.15).
9. The learned advocate for defendant No.1 submitted that
the suit is not maintainable. The suit is barred by law of limitation.
Therefore, it is not maintainable. In reply, the learned advocate for the
plaintiff submitted that Vikhroli Police Station has issued Certificate on
22.02.2008 and 29.02.2016. The Suit is filed on 29.01.2018. Therefore,
it is within limitation.
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10. 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 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 known to
have been alive within thirty years. When the question
is whether a man is 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 who affirms it.
Section 108: Burden of proving that the 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
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 who affirms it.
11. It is clear that the plaintiff will institute the suit only when
the plaintiff feels that his father cannot be traced out. He cannot be
compelled to institute such suit. Furthermore, period of seven years as
mentioned in Sec. 108 of the Indian Evidence Act cannot 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.
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12. In view of all above discussion, I have come to the
conclusion that Mr. Umesh Sudhakar Loke 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.
13. 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 the father of the plaintiff Mr. Umesh
Sudhakar Loke is proved to be not heard of for more than seven years, I
hold that the legal presumption arises that he is dead.
14. 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. Umesh Sudhakar Loke 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 father of plaintiff i.e. Mr. Umesh Sudhakar Loke
and issue death certificate accordingly.
4. No order as to costs of the suit.
5. Decree be drawn accordingly.
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6. The original documents, if any be returned to the
concerned person after the appeal period is over.
7. The suit stands disposed of accordingly.
(SITARAM N. PATIL)
Judge,
City Civil Court,
Date: 28.04.2023 Gr.Mumbai.
Dictated on: 28.04.2023
Typed on : 28.04.2023
Signed on : 28.04.2023
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
28/04/2022 At 5.30 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
28/04/2023
Judgment/Order signed by P.O. on 28/04/2023
Judgment/Order uploaded on 28/04/2023
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