Final Order 1

Order Details: Copy of Judgment
Pdf Text: 1
Presented on : 20.02.2021
Registered on : 27.11.2021
Decided on : 05.08.2024
Duration : 03 Y : 05 M : 16 D
EXHIBIT-16.
IN THE BOMBAY CITY CIVIL COURT AT MUMBAI
L.C. SUIT NO.2309 OF 2021
(C.N.R.No.MHCC01-002220-2020)
Shri. Rajendra Gangaram Gangan, ]
Age – 59 years, Occ. : Service, ]
R/a. : Room No.1, Saishakti Nivas, ]
Kali Mata Mandir Road, Utkarsha Nagar, ]
Muttu Compound, Bhandup (W), ]
Mumbai – 400 078. ] …. Plaintiff.
V/s.
1. The State of Maharashtra, ]
Through Senior Police Inspector, ]
Bhandup Police Station, ]
Mumbai. ]
2. Municipal Corporation of Gr. Mumbai. ]
Municipal Head Office, Mahapalika Marg, ]
C.S.T. and Ward office “S” Ward, ]
Local office at Bhandup, Mumbai. ] ..Defendants.
Appearance :
Learned Adv. Mr. Tejas Patil for the plaintiffs.
Learned Adv. Mr. Amit Kapse for defendant No.1/State.
Learned Adv. Mr. Rahul Rathod for defendant No.2/BMC.
CORAM : HIS HONOUR JUDGE
SHRI. V. S. KHOT
(C.R.NO.09)
DATE : 5th AUGUST, 2024
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Judgment 2 S.C. Suit No.2309-2021
JUDGMENT
(delivered on 5th August, 2024)
01. This suit is instituted for declaration of death and issuance
of death certificate of the missing person under the provisions of
Section 108 of the Indian Evidence Act.
02. The facts of the litigation can be stated as under :
The plaintiff is resident of Utkarsha Nagar, Bhandup (W),
Mumbai. His father’s name is Shri. Gangaram Appa Gangan. The
plaintiff is residing with his family from last 25 years at the address
mentioned. The plaintiff is working in SBI from last 26 years. His
father Gangaram Appa Gangan was a retired person and went to
outside the house on 02.04.2002 and thereafter never returned. The
plaintiff searched his whereabouts and inquired with the relatives,
friends, etc., but no whereabouts could be traced. The plaintiff finally
informed to the police regarding the missing of his father. The police
registered the missing complaint bearing No.46/2002 dated
07.04.2002. The father of plaintiff is missing from the above
mentioned date and still no whereabouts are known to anybody. The
period of 17 years have been elapsed but police could not search him.
The plaintiff required the death certificate of his father for various
purposes and he is constrained to institute this suit of declaration and
issuance of death certificate. The plaintiff prays for the same.
03. After institution of the plaint, the suit summons came to
be issued to the defendants. The defendants appeared. The defendant
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Judgment 3 S.C. Suit No.2309-2021
No.1 filed the written statement and contested the suit. Defendant
No.1 submitted that, there is no cause of action to the suit and it is
bad for want of statutory notice under Section 80 of the C.P.C. He was
searched by the police, but police could not trace him. The entry
regarding missing incident was taken, but the record is not with the
present defendant. The suit is untenable and liable to be dismissed.
Defendant No.2 failed to file the written statement.
04. In view of rival contentions of the suitor, following issues
came to be framed by my learned predecessor. I reproduced the same
alongwith reasons for findings mentioned hereinafter.
Sr. no. Points Findings
1. Does the plaintiff proves that the father
of the plaintiff Shri. Gangaram Appa
Gangan went missing from 02.04.2002
and not traceable for 7 years?
In the
affirmative.
2. Whether the plaintiff is entitled to a
decree for declaration for death of Shri.
Gangaram Appa Gangan as per Section
108 of the Indian Evidence Act?
In the
affirmative.
3. Whether the plaintiff is entitled for a
Death Certificate of Shri. Gangaram
Appa Gangan to be issued by B.M.C.?
In the
affirmative.
4. Whether the plaintiff is entitled for the
relief of declaration as prayed?
In the
affirmative.
5. What order ? As per final
order.
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Judgment 4 S.C. Suit No.2309-2021
REASONS
As to point No. 1 to 5 :-
05. This litigation is instituted by the plaintiff, therefore,
naturally the burden of proof under Section 101 of Indian Evidence
Act, lies upon him. In order to discharge the burden, the plaintiff
examined himself at Exh.07 and placed reliance on the following
documents i.e. application by police (Exh.09), application to police
(Exh.10), certificate (Exh.11), notice (Exh.12), Aadhar Card (Exh.14),
etc. The plaintiff reiterated the above mentioned contentions in his
evidence of affidavit. The plaintiff deposed that, he is son of one Shri.
Gangaram Appa Gangan who turned missing on 02.04.2002. He went
outside and never returned thereafter. He registered the missing
complaint at Bhandup police station but whereabouts of missing
person is still traceable and police failed to search him. He required
the death certificate and for that, he instituted the suit. He prayed for
declaration and issuance of death certificate. The witness came to be
cross-examined, wherein he stated that he has not issued the notice to
BMC prior to institution of the suit. He has not filed application to
BMC for issuance of death certificate.
06. The evidence, documents on record, contentions and
counter contentions of parties, make it clear that, plaintiff is son of
Shri. Shri. Gangaram Appa Gangan who turned missing on 02.04.2002
at Bhandup Police station. The registration of complaint by police
shows that the missing person turned missing on 07.04.2002 and from
thence he is untraceable. There is no information about his
whereabouts, existence, residence and life by anybody who is having
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Judgment 5 S.C. Suit No.2309-2021
interest in the missing person. There is a provision in Indian Evidence
Act that the missing person can be declared dead under Section 108 of
Indian Evidence Act, if he is missing for 7 years. It is apparent that,
father of plaintiff is missing from last many years and his whereabouts
are not known to anybody. Plaintiff is entitled for declaration that his
father is dead and under Section 108 of Indian Evidence Act. The
plaintiff has claimed the issuance of death certificate. The plaintiff
never approached to BMC for issuance of the death certificate. As far
as the death certificate is concerned, the plaintiff is entitled to death
certificate as there is a provision under Section 108 of Indian Evidence
Act to declare the person dead, if, the person missing for 7 years. The
plaintiff is entitled for the issuance of death certificate also. In this
case, the plaintiff asked for the liberty to file the suit without serving
notice under Section 80 of C.P.C. and the leave was granted to him.
The plaintiff has not served the notice to BMC under Section 527 (1)
of MMC Act, 1888. The notice is necessary only where the act done is
in pursuance or execution of this Act and there is question of neglect
or default in execution of the Act. The suit is filed for issuance of death
certificate against BMC. So, the notice under Section 527 (1) MMC Act
is not mandatory. Suit can not fail, if the notice is not given. The
notice is required only where the act of the corporation or officers is in
question. The above mentioned discussion clearly shows that plaintiff
is entitled to the declaration and issuance of death certificate under
the patronage of 108 of Indian Evidence Act (Presumption of civil
death). In view of the above stated reasons, my answer to issue Nos.1
to 4 are in the affirmative. Both the parties have taken several
adjournments, so, nobody is entitled for the costs. Having regard to
above said reasons I am inclined to pass following order resulting in
grant of relief without any order as to costs.
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Judgment 6 S.C. Suit No.2309-2021
ORDER
1. The suit No.2309 of 2021 is hereby decreed.
2. It is hereby declared that father of plaintiff by name
Gangaram Appa Gangan is dead (Civil death) under the
provision of 108 of Indian Evidence Act.
3. The death certificate of father of plaintiff by name
Gangaram Appa Gangan be issued under Section 108 of
Indian Evidence Act (presumption of Civil Death).
4. No any order as to costs.
5. The decree be drawn up accordingly.
(V. S. KHOT)
Judge,
City Civil Court,
Date: 05.08.2024 Gr. Bombay.
Dictated on : 05.08.2024
Transcribed on : 06.08.2024
Signed on : 06.08.2024
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Judgment 7 S.C. Suit No.2309-2021
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
06/08/2024 At 04.50 P.M. Manisha D. Hirole
UPLOAD DATE AND TIME Stenographer, Grade-I
Name of the Judge (With Court Room
Number)
HHJ SHRI. V. S. KHOT
(C.R.NO.09)
Date of pronouncement of Judgment/
Order
05.08.2024
Judgment/Order signed by P.O. on 06.08.2024
Judgment/Order uploaded on 06.08.2024
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