Order 1

Order Details: Copy of Judgment
Pdf Text: 1
Lodged on : 30.01.2018
Registered on : 01.03.2018
Decided on : 22.04.2024
Duration : 06 Y : 02 M : 23 D
EXHIBIT-13
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
SUIT NO. 645 OF 2018
(C.N.R. NO. MHCC01-001562-2018)
Mrs. Anita Baburao Aralavar ]
Age 58 years,Occ. Housewife ]
R/a. : Panchsheel Nagar, Khandoba ]
Tekdi, Golibar Road, Bhatwadi ]
Ghatkopar (W), Mumbai – 400 086. ] ... Plaintiff.
V/s.
1. The State of Maharashtra, ]
Through Government Pleader, ]
City Civil Court of Bombay, Mumbai. ]
2. Ghatkopar Police station. ]
Senior Police Inspector, ]
Ghatkopar, Mumbai – 400 086. ] ...Defendants.
Advocates Mr. Rajesh Kamblee for the plaintiff.
Advocate Mr.Anil Kapse for Defendants/State.
CORAM : HIS HONOUR JUDGE
SHRI VAIBHAV V. PATIL
(C.R.No.09).
DATE : 22nd APRIL 2024.
JUDGMENT
Present suit is instituted for the relief of death declaration
that Shri. Baburao Radheshyam Aralavar is presumed to be Civil dead
as he has not been heard of for more than 7 years.
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2. It is the case of plaintiff that plaintiff is the wife of Shri.
Baburao Radheshyam Aralavar who went missing on 25.12.2008 from
Ghatkopar, Mumbai. The plaintiff took search of her husband but she
could not find him. Hence she lodged missing complaint of her husband
on 25.12.2008 with Ghatkopar Police Station, Mumbai and the police
registered said complaint and recorded missing report dated
25.12.2008. Thereafter, plaintiff, as well as police made every possible
efforts to trace Shri. Baburao Radheshyam Aralavar however, he could
not be found even-after due and diligent search. Ghatkopar Police
Station issued missing certificate on 06.01.2010.
3. It is further contention of the plaintiff that her husband’s
whereabouts are not known for last more than seven years. The cause
of action has arisen at Mumbai. Hence, this Court has jurisdiction to
entertain, try and dispose of this Suit. Hence, the plaintiff has sought
declaration that this Hon’ble Court be pleased to make an order of
presumption of death of Shri. Baburao Radheshyam Aralavar who is not
heard of for more than seven years under section 108 of Indian
Evidence Act, 1908.
4. The Defendant No. 2 failed to file written statement, hence,
suit is proceeded without written statement of defendant No.2.
5. In view of pleadings, following issues arises for my
determination and I have recorded my findings to each of them for the
reasons stated below.
Sr.
No.
ISSUES FINDINGS
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1. Whether the plaintiff proves that Shri.
Baburao Radheshyam Aralavar has not been
heard of for more than seven years, since
the date of missing i.e. 25.12.2008 ?
In the
Affirmative
2. Whether the plaintiff is entitled for decree of
declaration that Shri. Baburao Radheshyam
Aralavar is presumed to be dead as per Sec.
108 of the Indian Evidence Act?
In the
Affirmative
3. What Order and decree ? As per Final Order
R E A S O N S
AS TO ISSUE NOS.1 TO 3 :
6. As all the points are related with each other, they are
discussed together to avoid repetition.
7. The plaintiff has filed affidavit of evidence in lieu of
Examination-in-Chief at Exhibit-5. She has deposed on oath and she has
reiterated all the contentions in the plaint in the Affidavit of Evidence.
She was cross-examined by the advocates of defendants. In cross
examination she has stated that missing person is her husband who
went missing from 25.12.2008 from Ghatkopar, Mumbai. In her cross-
examination she stated that she had not issued notice under Section 80
of C.P.C. to the State before filing of suit.
8. In support of the suit claim, the plaintiff has produced on
record list of documents vide Exh.07. The plaintiff has produced on
record Original copy of the Electricity Bill (Exh.08), Original copy of the
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survey slip bearing No.0850101 date 24.07.2000 (Exh.09), Original
copy of the Election Identity Card bearing No.IVP2110914 (Exh.10),
Original copy of missing certificate dated 06.01.2010 (Exh.11).
9. The learned advocate for defendants submitted that the suit
is barred by law of limitation. It is further submitted that the husband of
the plaintiff went missing since 25.12.2008. Therefore, she 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 plaintiff
did not hear anything about her husband Shri. Baburao Radheshyam
Aralavar since 25.12.2008 and the cause of action for institution of the
suit is recurring one and until the plaintiff realized that her husband
Shri. Baburao Radheshyam Aralavar cannot be traced, she cannot be
compelled to institute the suit for declaring him civil dead. Therefore,
the suit is within limitation. I find substance in the argument advanced
on behalf of the plaintiff. The 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.
10. 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
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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 person who affirms it.
11. In the present case, it is evident that the husband of the
plaintiff went missing since 25.12.2008. The plaintiff has deposed on
oath that she took all the efforts to find her missing father and she also
lodged missing complaint with police, but police also could not trace
him. Despite of her efforts, she could not find the missing person. Thus,
it is proved from the evidence produced on record by the plaintiff that
her husband was missing since 25.12.2008 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 defendants have 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.
12. In view of above documents and the oral evidence, plaintiff
has proved that Shri. Baburao Radheshyam Aralavar went missing
since 25.12.2008. The defendants have not disputed the said fact that
he is still missing and his whereabouts are not traced. 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.
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13. In the circumstances above, I have come to the conclusion
that plaintiff is entitled to the declaration as prayed for. Accordingly, I
answer Issue Nos.1 to 3 in the affirmative and in answer to Issue No. 4,
I proceed to pass following order.
ORDER
1. The suit is hereby decreed.
2. It is hereby declared that the husband of the plaintiff
Shri. Baburao Radheshyam Aralavar is not being heard
of for more than last seven years and he is Civil Dead.
3. No order as to costs of the suit.
4. Decree be drawn up accordingly.
5. The original documents, if any, be returned to
the plaintiff after the appeal period is over.
6. The suit stands disposed of accordingly.
(VAIBHAV V. PATIL)
Judge,
City Civil Court,
Date: 22.04.2024 Gr.Mumbai.
Dictated on : 22.04.2024
Typed on : 22.04.2024
Signed on : 22.04.2024
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
24.04.2024 At 5.30 P.M. Ms. Manisha Hirole
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
22.04.2024
Judgment/Order signed by P.O. on 24.04.2024
Judgment/Order uploaded on 24.04.2024
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