Order 2

Order Details: Copy of Judgment
Pdf Text: 1
Lodged on : 09.02.2018
Registered on : 27.08.2018
Decided on : 08.05.2024
Duration : 06 Y : 02 M : 30 D
EXHIBIT-16
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
SUIT NO. 2238 OF 2018
(C.N.R. NO. MHCC01-002132-2018)
Rohit Anil Deshpande ]
Age 34 years, Occ. Service ]
R/a. : Room No.4, Om Shree Vinayak]
Society, Near Nene Classes, ]
Manisha Nagar, Kalwa (East), Thane ] ... Plaintiff.
V/s.
1. The State of Maharashtra, ]
Through the Chief Secretary ]
Government of Maharashtra, ]
Mantralaya, Mumbai – 400 032. ] …. Deleted.
(a) The State of Maharashtra, ]
Through The Government Pleader ]
Officer, City Civil and Sessions Court, ]
Ground Floor, Kala Ghoda, Mumbai. ]
(b) The State of Maharashtra ]
Through the Sr. Inspector of Police, ]
Mulund Police Station, Mulund (W), ]
Mumbai – 400 080 ]
2. The Brihamumbai Municipal ]
Corporation of Gr. Mumbai ]
Having officer at Mahanagar Palika ]
Marg, Opp.CST, Mumbai – 400 001. ] ...Defendants.
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Appearance : -
Advocates Mr. Shirish Shigwan for the plaintiff.
Advocate Mr. Darshan Jain h/f. Adv. Mr. Kudalkar for Defendant
Nos.1(a) and 1(b).
Advocate Ms. Chandramore for defendant No.2/BMC.
CORAM : HIS HONOUR JUDGE
SHRI VAIBHAV V. PATIL
(C.R.No.09).
DATE : 8th MAY, 2024.
JUDGMENT
Present suit is instituted for the relief of death declaration
that Shri. Vinit Anil Deshpande is presumed to be Civil dead as he has
not been heard of for more than 7 years.
2. It is the case of plaintiff that plaintiff is the brother of Shri.
Vinit Anil Deshpande who went missing on 06.04.2010 from Mulund,
Mumbai. The plaintiff took search of his brother but he could not find
him. Hence he lodged missing complaint of his brother on 14.04.2010
with Mulund Police Station, Mumbai and the police registered said
complaint and recorded missing report dated 14.04.2010. Thereafter,
plaintiff, as well as police made every possible efforts to trace Shri. Vinit
Anil Deshpande however, he could not be found even-after due and
diligent search. Mulund Police Station issued missing certificate on
24.06.2017.
3. It is further contention of the plaintiff that his brother’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
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declaration that this Hon’ble Court be pleased to make an order of
presumption of death of Shri. Vinit Anil Deshpande who is not heard of
for more than seven years under section 108 of Indian Evidence Act,
1908.
4. The Defendants failed to filed written statement. Hence,
suit came to be proceeded without written statement of defendants.
5. In view of pleadings, following issues arises for my
determination, I have recorded my findings to each of them for the
reasons stated below.
Sr.
No.
ISSUES FINDINGS
1. Whether the plaintiff proves that Shri. Vinit
Anil Deshpande has not been heard of for
more than seven years, since the date of
missing i.e. 06.04.2010 ?
In the
Affirmative
2. Whether the plaintiff is entitled for decree of
declaration that Shri. Vinit Anil Deshpande
is presumed to be dead as per Sec. 108 of
the Indian Evidence Act?
In the
Affirmative
3. Whether the plaintiff is entitled for a Death
Certificate of Shri. Vinit Anil Deshpande to
be issued by B.M.C.?
In the
Affirmative
4. What Order and decree ? As per Final Order
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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-09. He has deposed on oath and he has
reiterated all the contentions in the plaint in the Affidavit of Evidence.
He was cross-examined by the advocates of defendants. In cross
examination he has stated that missing person is his brother who went
missing from 06.04.2010 from Mulund, Mumbai and he had lodged the
missing complaint. In his cross-examination he stated that he had not
approached to BMC for issuing death certificate of his brother. Further,
he stated that he has not given notice to BMC prior to institution of the
suit.
8. In support of the suit claim, the plaintiff has produced on
record list of documents vide Exh.10. The plaintiff has produced on
record copy of missing certificate dated 16.04.2010 (Exh.11), copy of
Election Card of missing person (Exh-12), original copy of Ration Card
of missing person alongwith the name of plaintiff and their mother
(Exh.13), copy of certificate dated 24.06.2017 issued by the Sr.
Inspector, Mulund Police Station (Exh.14).
9. The learned advocate for defendants submitted that the suit
is barred by law of limitation. It is further submitted that the brother of
the plaintiff went missing since 06.04.2010. Therefore, he ought to have
instituted the suit within three years from the date of cause of action, to
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which he 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 his brother Shri. Vinit Anil Deshpande since
06.04.2010 and the cause of action for institution of the suit is recurring
one and until the plaintiff realized that his brother Shri. Vinit Anil
Deshpande cannot be traced, he 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
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 brother of the
plaintiff went missing since 06.04.2010. The plaintiff has deposed on
oath that he took all the efforts to find his missing brother and he also
lodged missing complaint with police, but police also could not trace
him. Despite of his efforts, he could not find the missing person. Thus,
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it is proved from the evidence produced on record by the plaintiff that
his brother was missing since 06.04.2010 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. Vinit Anil Deshpande went missing since
06.04.2010. 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.
13. The State is under statutory obligation to maintain the
record of birth and death of citizens. Therefore, in view of above
discussion, the plaintiff is entitled for death certificate of Shri. Vinit Anil
Deshpande to be issued by the defendant No.2.
14. 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 No.2238 of 2018 is hereby decreed.
2. It is hereby declared that the brother of the
plaintiff Shri. Vinit Anil Deshpande 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. Vinit Anil Deshpande 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 plaintiff after the appeal period is over.
7. The suit stands disposed of accordingly.
(VAIBHAV V. PATIL)
Judge,
City Civil Court,
Date: 08.05.2024 Gr.Mumbai.
Dictated on : 08.05.2024
Typed on : 08.05.2024
Signed on : 10.05.2024
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
08.05.2024 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
08.05.2024
Judgment/Order signed by P.O. on 10.05.2024
Judgment/Order uploaded on 10.05.2024
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