Final Order 1

Order Details: Copy of Judgment
Pdf Text: 1
MHCC010016042019
Lodged on : 11.02.2019
Registered on : 01.07.2019
Decided on : 31.10.2023
Duration : 04Y 08M 20D
EXHIBIT-15
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
SUIT NO. 1624 OF 2019
SMT. SHARDA DEVIDAS PAI ]
Aged 75 years, Occupation : ]
Housewife, Residing at 101, ]
Venkatesh Balaji Mandir , ]
Banganga Road, Walkeshwar, ]
Mumbai 400 006. ] (Said deceased deleted).
1(a) MR. GOPALKRISHNA ]
DEVIDAS PAI, Age: 53 years, ]
Occupation : Business, ]
Residing at Room No.6, 101 ]
Venkatesh Balaji Mandir , ]
Banganga Road, ]
Near Banganga Tank, ]
Walkeshwar, Mumbai 400 006. ]
1(b) MS. JYOTI DEVIDAS PAI ]
JYOTI SHRIKANT BHAT, ]
Age: 52 years, Occupation : ]
Housewife, Residing at 9/9, ]
Devendra Shri Bhuvanendra ]
Chs, Sudhindra Nagar, ]
Dahisar (East), ]
Mumbai 400 068. ]
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1(c) MR. UDAY DEVIDAS PAI, ]
Aged 50 years, Occupation : ]
Business, Residing at 101, ]
Balaji Mandir, Banganga Road, ]
Near Banganga Tank, ]
Walkeshwar, Mumbai 400 006. ].. Plaintiffs.
V/s.
1. MUNICIPAL CORPORATION ]
FOR GREATER MUMBAI, ]
“D” Ward, Walkeshwar, ]
Mumbai. ]
2. THE STATE OF ]
MAHARASHTRA, (At the ]
instance of Malbar Hill Police ]
Station, Missing Person ]
related Centre, Crime Branch, ]
Gu. A. Department, Mumbai. ]..Defendants.
Advocate Mr. Bhushan Wardhmane for the plaintiff.
Advocate Mrs. Chandramore for BMC/defendant No.1.
Advocate Mr. Khatib for defendant No.2/State.
CORAM : HIS HONOUR JUDGE
SHRI VAIBHAV V. PATIL
(C.R.No.09).
DATE : 31st OCTOBER 2023.
JUDGMENT
Present suit is instituted for the relief of death declaration
that Shri Devidas Gopal Pai is presumed to be Civil dead as he has not
been heard of for more than 7 years.
2. It is the case of original plaintiff that she was wife of
missing person. The original plaintiff expired and the legal heirs are
brought on record. The husband of the original plaintiff Shri Devidas
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Gopal Pai has left house on 10.07.2005 without informing the family
members. Thereafter her younger son i.e. plaintiff No.1(c) has filed
missing complaint of his father at Malbar Hill Police Station bearing
A.M.R. No.13/2005 dated 10.07.2005. After filing the missing
complaint, the concerned police station have tried their level best to
search him, however, he could not be found till today. The police have
issued certificate regarding the missing of the plaintiff’s husband Shri
Devidas Gopal Pai.
3. It is further contention of the plaintiff that her husband
Shri Devidas Gopal Pai has disappeared on 10.07.2005 from his place of
residence. The cause of action has arisen at Mumbai. Hence, this Court
has jurisdiction to entertain, try and dispose of this Suit. Hence, it is
prayed that Shri Devidas Gopal Pai be presumed to be dead and is not
alive and hence, it is required to declare that Shri Devidas Gopal Pai is
dead and also prayed that direction be given to MCGM to issue death
certificate in the name of Shri Devidas Gopal Pai.
4. The Defendant No.2/State has filed written statement vide
Exh.5 and resisted the suit. It is contended that the suit as filed is
misconceived, bad-in-law and not maintainable. The suit is barred for
want of statutory Notice under section 80 of the Civil Procedure Code,
1908. The plaint does not disclose any cause of action as against the
defendant. Hence, the suit is liable to be dismissed with costs.
5. Though defendant No.1/BMC appeared, failed to file its
written statement. Hence, suit came to be proceeded without written
statement of the defendant No.2.
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6. I have heard learned advocate for the plaintiff, the learned
advocate for BMC/defendant No.1 and learned advocate for defendant
No.2/State.
7. In view of pleadings, on 31.08.2023, I have framed issues
vide Exhibit-06 and I have recorded my findings to each of them for the
reasons stated below.
Sr.
No.
ISSUES FINDINGS
1 Whether the plaintiff is entitled to a decree
for declaration of death of Shri Devidas
Gopal Pai as presumed to be dead as per
Section 108 of the Indian Evidence Act ?
In the
Affirmative
2 Whether plaintiff is entitled for a Death
Certificate of Shri Devidas Gopal Pai to be
issued by B.M.C. ?
In the
Affirmative
3 Whether the plaintiff is entitled for the relief
of declaration as prayed ?
In the
Affirmative
4 What Order and decree ? As per Final Order
R E A S O N S
AS TO ISSUE NOS.1 TO 3 :
8. As all three points are related with each other, they are
discussed together to avoid repetition.
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9. The plaintiff No.1(a) has filed his Affidavit of Evidence in
lieu of Examination-in-Chief at Exhibit-7 and deposed on oath and he
has reiterated all the contentions in their plaint in the Affidavit of
Evidence. He was cross-examined by both the advocates of defendants.
In cross examination he has stated that he had made application to
BMC for issuing death certificate of his father. He had not issued paper
publication about missing of his father. He had not issued notice to BMC
before institution of the suit.
10. In support of the suit claim, the plaintiffs have produced on
record list of documents vide Exh.8. The plaintiffs have produced on
record original copy of the Missing Certificate issued by the Senior
Inspector of Police, Missing Person related Centre, Crime Branch, Gu.A.
Department, Mumbai (Exh. 9). It shows that the original plaintiff has
filed complaint to Missing Person related Centre regarding missing of
her husband vide AMR No.13/2005 dated 10.07.2005. The plaintiff
have produced Ration Card (Exh.10), Electricity Bill (Exh.11), the
original copy of trust receipts paid by Shri Devidas Pai (Exh.12) and
original copy of Domicile Certificate of Shri Devidas Pai (Exh.13). The
learned advocate for the plaintiff has filed evidence closed pursis
(Exh.14).
11. The learned advocate for defendants submitted that the suit
is barred by law of limitation. It is further submitted that the husband of
the original plaintiff went missing since 10.07.2005. 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 Devidas
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Gopal Pai since 10.07.2005 and the cause of action for institution of
the suit is recurring one and until the plaintiff realized that her husband
Shri Devidas Gopal Pai cannot be traced, she cannot be compelled to
institute the suit for declaring him 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.
12. 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
him if he had been alive, the burden of proving that he
is alive is shifted to the person who affirms it.
13. In the present case, it is evident that the husband of the
original plaintiff went missing since 10.07.2005. The plaintiff No.1(a)
has deposed on oath that he took all the efforts to find him and his
younger brother i.e. plaintiff No.1(c) also lodged missing complaint
with police, but police also could not trace him. Despite of their efforts,
they could not find the missing person. Thus, it is proved from the
evidence produced on record by the plaintiff No.1(a) that his father was
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missing since 10.07.2005 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.
14. In view of above documents and the oral evidence,
plaintiffs have proved that Shri Devidas Gopal Pai went missing since
10.07.2005. 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.
15. The State is under statutory obligation to maintain the
record of birth and death of citizens. Therefore, in view of above
discussion, the plaintiffs are entitled for death certificate of Shri Devidas
Gopal Pai to be issued by the defendant No.1.
16. 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.
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ORDER
1. The suit is hereby decreed.
2. It is hereby declared that Shri Devidas Gopal Pai
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 Shri Devidas Gopal Pai and to issue death
certificate accordingly.
4. No order as to costs of the suit.
5. Decree be drawn up 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: 31.10.2023 Gr.Mumbai.
Dictated on : 31.10.2023
Typed on : 31.10.2023
Signed on : 02.11.2023
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
02/11/2023 At 03.00 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
31/10/2023
Judgment/Order signed by P.O. on 02/11/2023
Judgment/Order uploaded on 02/11/2023
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