Final Order 1

Order Details: Copy of Judgment
Pdf Text: Judgment SU 1562-2018
Presented on 31.01.2018
Registered on 25.06.2018
Decided on 19.03.2021
Duration Yrs. M. Days
02 08 24
CNR No. MHCC01-001608-2018
EXH.21
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
S.C. SUIT NO.1562 OF 2018
Minesh Nagji Sangoi,
Aged 50 Years, Occ: Business,
Indian Inhabitant, Having address at Flat
No.B-403, Vikas Apartment, Rajawadi
Road No.01, Opp Bank of Baroda,
Ghatkopar (East), Mumbai 400 077.
… Plaintiff
Vs
1. The State of Maharashtra,
Through Senior Police Inspector Tilak
Nagar Police Station, Ghatkopar (East),
Mumbai.
… Defendants
2. The Municipal Corporation of Greater
Mumbai.
Appearances:
Ld. Adv Jadhav for the plaintiff.
Ld. AGP Kapse for defendant No.1.
Ld. Adv Chandramore for defendant No.2.
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Judgment SU 1562-2018
CORAM : HIS HONOUR JUDGE
SHRI. R. S. PAVASKAR
(C.R.NO.12)
DATE : 19th MARCH 2021
ORAL JUDGMENT
The plaintiff has sued the defendants for a declaration.
2. The plaintiff’s case is recapitulated as under:-
Shri. Pomil Nagji Sangoi alias Akash Nagji Sangoi, who was
the younger brother of the plaintiff had left the home on 25.10.2008
and never returned. So, on 26.10.2008, the plaintiff had lodged a
missing person report with Tilak Nagar Police Station vide Complaint
No.56 of 2008. On 08.03.2010, the said police station issued a missing
person certificate to the plaintiff. He had published a missing person
advertisement in a newspaper and also tried to search for his missing
brother Pomil Sangoi with all his relatives and friends and at other
places. However, all his efforts to search for him went to waste. He was
not heard of for more than nine years by any of his friends or his
relatives. As such, he is presumed to be dead under Section 108 of the
Indian Evidence Act, 1872. Hence, the plaintiff has filed the present
suit for a declaration to that effect.
3. Defendant No.1 has contested the suit by filing a written
statement at Exh.6 and
inter alia contended that for want of statutory
notice under Section 80 of the Code of Civil Procedure, 1908 (in short
“CPC”) and cause of action, the suit is not maintainable and is liable to
be dismissed.
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Judgment SU 1562-2018
4. Defendant No.2 has failed to file a written statement.
Hence, the suit was ordered to be proceeded without a written
statement against it.
5. My predecessor was pleased to frame issues at Exh.7, which
are reproduced below along with my findings and reasons therefor.
ISSUES FINDINGS
1. Whether the plaintiff proves that his
brother Pomil Nagji Sangoi is not heard
by those who would have naturally
heard of him from the date of his
missing i.e., 26.10.2008 if he would
have been alive?
No.
2. Whether the suit is bad for want of
statutory notice under Section 80 of
the Code of Civil Procedure?
No.
3. Whether the plaintiff is entitled to
relief of declaration as claimed?
No.
3A Whether the suit is barred by law of
limitation?
Yes.
4. What order and decree? The suit is dismissed.
R E A S O N S
6. The plaintiff has examined himself as PW-1 to substantiate
his claim.
7. Defendants have not adduced any evidence.
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Judgment SU 1562-2018
Issue No.1:
8. The plaintiff in his evidence has asserted that on
25.10.2008 at about 4.00 p.m., his brother Pomil Sangoi had left home
and never returned. So, on 26.10.2008, he lodged a missing person
complaint with Tilak Nagar Police Station vide Complaint No.56 of
2008. According to him, he had published a missing person
advertisement in a newspaper and also tried to search for his missing
brother Pomil Sangoi with all his relatives and friends and at other
places. However, he could not find him.
9. It is to be highlighted that the plaintiff has not examined
any of the friends or relatives of Pomil Sangoi who would naturally have
heard of him if he had been alive. Thus, except for the bare words of
the plaintiff, no evidence is forthcoming to show that his brother Pomil
Sangoi was not heard of for more than seven years by those who would
naturally have heard of him if he had been alive. So, I answer
issue
No.1 in the
negative.
Issue No.2:
10. Initially, the plaintiff had filed the suit without giving notice
under Section 80 of the CPC to defendant No.1. From the roznama
dated 07.06.2018, it is clear that the plaintiff had given a notice under
Section 80 of CPC to defendant No.1, and thereafter, the suit came to be
registered. As such, the suit cannot be held to be bad for want of notice
under Section 80 of CPC. Consequently, I answer
issue No.2 in the
negative.
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Judgment SU 1562-2018
Issue No.3:
11. Admittedly, the plaintiff has filed the present suit for a
declaration of the death of his brother Promil Sangoi by invoking the
presumption under Section 108 of the Indian Evidence Act, 1872.
12. It is well settled that the only presumption under Section
108 of the Evidence Act is that a person is dead if he has not been heard
of for seven years. Such presumption can be drawn only when a
question is raised in a Court as to whether a person is alive or dead.
13. As per Section 34 of the Specific Relief Act, 1963, a
declaration as to a legal character or any right as to any property, may
be granted against a person denying or interested to deny the plaintiff’s
title to such character or right.
14. It is well settled that a declaratory decree is in personam
and not in rem. Such decree can be executed against a person who has
denied or interested to deny the plaintiff’s title to any legal character or
right to any property and not against the entire world.
15. In Narayan Nayak Vs. State Bank of India And Ors. (2002
Law Suit (Cal) 1), the Hon’ble Calcutta High Court has observed as
under:
The presumption of civil death or fictional death by reason
of Section 108 of Evidence Act tantamounts to physical
death in the eye of law. On this proposition I am supported
by Parikhit v. Champa. Thus the presumption is a rule of
evidence. By fiction the death is presumed in such
circumstances unless otherwise proved by him who
controverts it. Therefore, there cannot be any question of
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obtaining a decree of declaration of civil death by the near
relatives who have not heard of him. If some one insists
that he is not dead then it is he who has to prove it. In as
much as the burden lies on the person who asserts that
affirmative; (Agha Mir v. Mir Mudasir. Therefore no suit
lies for a declaration that a person not having been heard
of for 7 years was deemed to be dead, unless the suitor
seeks to establish that he is entitled to any legal character
or to any right as to any property. Inasmuch as a suit for
declaration can be maintained only within the scope and
ambit of Section 34 of the Specific Relief Act, 1963. Section
34 does not sanction every form of declaration. It sanctions
only a declaration that the plaintiff is entitled to a specific
legal character or to any right as to property; Deokali v.
Kedarnath (1912) 39 Cal 704. In other words the meaning
of the section is that any person, who has a right to any
legal character i.e. status, or to any property, may bring a
declaratory action against any one who actually denies or
has some interest on behalf of other to deny his title to
such character or his right to any such property. In order to
obtain relief under Section 34 of the Specific Relief Act the
plaintiff has to establish that the defendant has denied or is
interested in denying the character or title of the plaintiff.
The denial must be communicated to the plaintiff in order
to give him cause of action. In this case no such
communication of denial as such has been made with
regard to any legal character or right to property by the
respondents. The Bombay High Court had also taken the
view that no such suit for declaration lies, in Freemantle
Vs. Freemantle 52 Bom LR 641, though in a different
context.
16. In the case in hand, there is absolutely no pleading which
may indicate that the defendants had denied the legal character of the
plaintiff’s brother Pomil Sangoi. From the admission given by the
plaintiff in his cross-examination, it is clear that he had not even
approached defendant No.1 or defendant No.2 for obtaining a death
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certificate of Pomil Sangoi. The plaintiff has thus, filed the present suit
against the defendants without any cause of action.
17. The plaintiff has filed the present suit without any cause of
action against the defendants, and therefore, I hold that a simpliciter
suit for the declaration of the death of Pomil Sangoi is not maintainable.
18. As stated
supra, a declaratory decree is in personam and
not in rem. So, even assuming for a moment that a declaration of
death can be granted under Section 108 of the Indian Evidence Act,
1872, it cannot be executed against persons who are not parties to the
present suit and such decree would merely a paper decree. So, I hold
that the plaintiff is not entitled to relief of the declaration of the death
of his brother. Resultantly, I answer
issue No.3 in the
negative.
Issue no.3A:
19. The plaintiff has filed the present suit for declaration. As
per Article 58 of the Limitation Act, 1963, a suit for declaration can be
filed within three years from the date when the right to sue first
accrues.
20. In the plaint, the cause of action to file the present suit is
shown to have arisen on 25.10.2008. The plaintiff in his cross-
examination has categorically admitted that on 08.03.2010 and
20.12.2017, police had issued a missing person certificate to him. The
cause of action to file the present suit was first accrued on 25.10.2008.
As such, the plaintiff ought to have filed the present suit on or before
25.10.2011. However, he has filed the present suit on 31.01.2018. The
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suit is, thus, hopelessly barred by law of limitation. So, I answer
issue
No.3A in the
affirmative.
21. For the reasons enumerated in the foregoing paras, I hold
that the suit is liable to be dismissed. However, in the peculiar facts and
circumstances in hand, I do not want to saddle the plaintiff with the
costs of the present suit. So, I direct the parties to bear their own costs.
Accordingly, I proceed to pass the following order:
ORDER
1. Suit is dismissed.
2. Parties to bear their own costs.
3. Decree be drawn up accordingly.
Sd/-
R. S. PAVASKAR
Judge,
Date : 19/03/2021 City Civil Court, Gr. Bombay
Dictated on : 19.03.2021
Transcribed on : 19.03.2021
HHJ signed on : 19.03.2021
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
Upload Date Upload Time Name of Stenographer
22.03.2021 5.00 p.m. ARUN ANNAMALAI MUDALIYAR
Name of the Judge (With Court
Room No.)
HHJ Shri. R.S. PAVASKAR (CR 12)
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Date of Pronouncement of
JUDGEMENT /ORDER
19.03.2021
JUDGEMENT /ORDER signed by
P.O. on
19.03.2021
JUDGEMENT /ORDER uploaded
on
22.03.2021
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