Order 3

Order Details: Copy of Judgment
Pdf Text: Lodged on 01.02.2018
Registered on : 19.04.2018
Decided on 02.01.2023
Durat:ion 04Y 08M 14D
EXHIBIT13
IN BOMBAYcm COURT AT BOMBAY
S. C. CIVILSUIT NO.1231 OF 2018
( CNR No.MH-CC-01-001731-2018)
Kavita W/o. Balu Kadam
Age about 45 years
an adult, Inhabitant of Mumbai
residing at Haji Ali Govt.Colony
Beat No.21, Room No.4, Race Course
Mahalaxmi, Mumbai-400035
1. Balu Baban Papal Kadam
an adult, Inhabitant of Mumbai
residing at Haji Ali Govt.Colony
Beat No.21, Room No.4, Race Course
Mahalaxmi, Mumbai-400035
2. The State Of
Through Tardeo Police Station, Tardeo,
Mumbai.4000
I Plainfff.
I..Defendants.
Advocate Mr. Rajesh for the plaintiff.
Advocate Mr. Kapse for the State/defendant No.2.
CORAM :HIS HONOUR JUDGE
SHRI SITARAM N. PATIL
(C.R.N0.09)
DATE: 2ndJanuary 2023
-- 1 of 7 --
2
JUDGMENT
The suit is i sti ted for the relief of death declaration of
o pct
Balu Baban @ apa Kadam.
2. It is the case of plaintiff that she has lodged complaint with
Tardeo Police Station on 23.02.2010 that her husband Balu Baban @
apal Kadam, has been left the house on 29.10. 0 stating that he is
going to work. Her husband Mr. Balu Baban Papal Kadam was
missing since 29.10.2009. He left from his place of his residence and
was not found anywhere later on. He did not return back to the home
since then. The entire family members were panicked and were in
tension and started searchingher husband in the area where he was
residing and working. The family mernbers enquired with their
neighborhood as well as with the relatives and his friends, but entire
exercise went in vain.
3. It is the case of the plaintiff that she herself and her family
members personally visited all over the Mumbai with friends and
relatives in the native place but all their efforts were unsuccessful.
Therefore, the plaintiff herself went and lodged Missing Persons
Complaint with Tardeo Police Station which was recorded as
Complaint/N.C. No.06/2010 dated 23.02.2010.
4. It is the case of the plaintiff that she alongwith her family
members went to the Televisionoffice and gave the advertisement cum
public notice for the missing person alongwith photo of her husband.
5. It is case of the plaintiff that Missing Person namely
defendant No.1 is not seen for more than 8 years in the City of Mumbai,
-- 2 of 7 --
3
native place or elsewhere. Therefore, she approached Tardeo Police
Station upon which police station also issued the Certificate dated
25.02.2010 which says that the missing person was searched but not
found by the police since the complaint lodged with them on
23.02.2010.
6. It is further the case of the plaintiff that her husband is not
been known or being heard by her and her family members and/or any
person in the Mumbai, native place or elsewhere since last 8 years and
her efforts to search for her husband from the year 2009 has become
futile. Hence, she again approached Tardeo police station and gave a
written compliant which was received by Tardeo Police Station and
upon which Sr. Inspector of Tardeo Police Station issued a fresh
Certificate dated 11.02.2017 stating tat defendant No.1 was not found
and not even heard after 9 years of missing. The plaintiff further stated
that in the absence of declaration,it is very difficultfor her to obtain
funds from LIC/Medical Centre/ Insurance Agency or any other Institute
or concerned authorities, invested by her husband with any other
benefits. Her husband has invested funds in the property nearby or
around at Mumbai.
7. The suit is within limitation. The plaintiff did not file any
suit for the same cause in this Court or any other Court. Therefore, the
plaintiff has prayed for declaration.
8. Defendants have filed a written statement. It is contended
that the suit is misconceived,bad-in-law and not maintainable. It is
contended that the suit is bad for want of statutory Notice under
-- 3 of 7 --
4
Section 80 of CPC.
I have heard learned advocate for the plaintiff and the
learned advocate for State/defendant No.2. Defendant No.1 not traced
out after paper publication on 14.12.2018.
10. Considering the plaint, documents on record and oral
evidence of plaintiff and submissionsof both learned advocates,
followingpoints arise for my determinationand my findings to them
are as stated below for the following reasons.
Sr. PONTS
No.
1 Whether	k/phas	ainti proved that Balu
Baban a a Kadam is missing and
has not been heard for more than 8
years ?
2 Whether plaintiff is entitled to the
declaration as prayed for ?
FINDNGS
In the
Affirmative
In the
Affirmative
3 What Order and decree ? As per Final Order
REASONS
AS TO pom-r NOS.I To 3 :
11. As all three points are related with each other. Hence, they
are discussed at once to avoid repetition.
12. The plaintiff has filed his Affidavit of Evidence by way of
examination-in-chief	at Exhibit-5and deposed on oath and she has
reiterated all the contentions in her plaint in the Affidavit. She was
cross-examined by the defendant. In the cross-examination she had
-- 4 of 7 --
5
stated that at the time of missing,her husband was 50 years old, He
was missing since 2009. When her husband missing from the vicinity,
she had taken efforts to search him near her relatives and then she filed
missing complaint to Tardeo PoliceStation.
13. In support of the suit claim, the plaintiff has produced on
record Ration Card (Exh.6). The plaintiff has produced Employment
card and other documents (Exh,7), N.C. Complaint dtd.23.02.2010 to
Tardeo Police Station (Exh.8), Letter dtd.25.02.2010 to Television
Centre (Exh.9), Certificates dtd.26.02.2010 and 11.07.2017 issued by
Tardeo Police Station (Exh.10 and 11 respectively). The learned
advocate for the plaintiff has filed evidence close pursis (Exh.12)
14. The learned advocate for defendant No.2 submitted that
the suit is barred by law of limitation. It is not maintainable. He further
submitted that the husband of the plaintiff went missing since 2009.
The plaintiff did not hear anything about him till the year 2009.
Therefore, she should have instituted the suit within three years from
the year 2009 and the suit filed in the year 2018. Therefore,it is not
within limitation. In reply, the learned advocate for the plaintiff
submitted that the cause of action for institution of the suit is recurring
one and until the plaintiff realizedthat her husband cannot be traced,
he cannot be compelled to institute the suit for declaring him dead.
15. The learned advocate for the plaintiff drawn my attentions
towards sections 107 and 108 of the Indian EvidenceAct. It is further
submitted that burden of provingdeath of the father 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.
-- 5 of 7 --
6
The sections 107 and 108 of the Indian Evidence Act speak as under;
Section107: Burdenprovingdeath of the father known to
have been alive within thirty years. When the question is
whethera man ia 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 father who affirms it.
108: Burdenof provingthat the father 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 father who affirms
it.
16. It is clear that the plaintiff will institute the suit only when
the plaintiff feels that her husband cannot be traced out. She cannot be
compelled to institute such suit. Further-more, period of seven years as
mentioned in Sec. 108 of the Indian EvidenceAct 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.
17. In view of all above discussion, I have come to the
conclusion that Balu Baban Kadam is found to be missing for a period of
more than 14 years. The legal presumption is attracted under section
108 of the EvidenceAct that her husband is dead. I therefore, hold that
the plaintiff is entitled for declaration to that effect.
18. 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 Balu Baban Kadam is proved to be not
-- 6 of 7 --
7
heard of for more than eight years, I hold that the legal presumption
arises that he is dead.
19. In the circumstancesabove, I have come to the conclusion
that plaintiff is entitled to the declarationas prayed for. Accordingly,I
answer points Nos.1 and 2 in the affirmativeand in answer to point
No.3, I proceed to pass following order.
ORDER
1. The suit is hereby decreed.
2. It is hereby that the husband of the plaintiff
i.e. Balu Baban @ apa Kadam is not being heard of for
more than last 14 years and he is CivilDead.
3. No order as to costs of the suit.
4. Decree be drawn accordingly.
5. The suit stands disposed of accordingly.
(SITARAM N. PATIL)
Judge,
City Civü Court,
Gr.Mumbai.
Date: 02.01.2023
Dictated on 02.01.2023
Typed on • 02.01.2023
Signed on :02.01.2023
-- 7 of 7 --