Final Order 1

Order Details: Copy of Judgment
Pdf Text: 1 SU NO.1475 of 2020
Lodged on : 27.02.2020
Registered on : 18.12.2020
Decided on : 10.05.2024
Duration : 04 Y : 01 M : 14 D
EXHIBIT-14
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
SUIT NO. 1475 OF 2020
(C.N.R. NO. MHCC01-002477-2020)
Sunanda Namdev Kamble ]
Age 64 years, ]
R/a. : 1, Jatabai Chawl, ]
Dr. Ambedkar Nagar, Raju Bedekar ]
Marg, Naupada, Kurla (W), ]
Mumbai – 400 700 ] ... Plaintiff.
V/s.
1. The State of Maharashtra, ]
Through the Secretary, Home Dept., ]
Mantralaya, Mumbai – 400 032. ]
2. Brihanmumbai Municipal ]
Corporation of Gr. Mumbai ]
Mahapalika Marg, Mumbai – 400 001]
3. The Sr. Inspector of Police, ]
Vinobha Bhave Police Station, ]
Mumbai. ] ...Defendants.
Appearance : -
Advocates Mr. Sunita Darvesh for the plaintiff.
Advocate Mr.K Amit Kapse for Defendant No.1/State.
Advocate Ms. Chandramore for defendant No.2/BMC.
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2 SU NO.1475 of 2020
CORAM : HIS HONOUR JUDGE
SHRI VAIBHAV V. PATIL
(C.R.No.09).
DATE : 10th MAY, 2024.
JUDGMENT
Present suit is instituted for the relief of death declaration
that Shri. Namdev Jagannath Kamble 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 wife of Shri.
Namdev Jagannath Kamble who went missing on 23.07.2010 from
Vinoba Bhave Nagar, Mumbai. The plaintiff took search of her husband
but she could not find him. Hence she lodged missing complaint of her
husband on 01.08.2010 with Vinoba Bhave Nagar Police Station,
Mumbai under A.M.R. No.47/2020 and the police registered said
complaint and recorded missing report dated 01.08.2010. Thereafter,
plaintiff, as well as police made every possible efforts to trace Shri.
Namdev Jagannath Kamble however, he could not be found even-after
due and diligent search. Vinoba Bhave Nagar Police Station issued letter
dated 04.08.2010 regarding taking entry of missing person Namdev
Kamble in police station missing register.
3. It is further contention of the plaintiff that her husband’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
declaration that this Hon’ble Court be pleased to make an order of
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3 SU NO.1475 of 2020
presumption of death of Shri. Namdev Jagannath Kamble who is not
heard of for more than seven years under section 108 of Indian
Evidence Act, 1908.
4. The Defendant Nos. 1 to 3 failed to filed their written
statement. Hence, suit came to be proceeded without written statement
of defendant Nos.1 to 3.
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.
Namdev Jagannath Kamble has not been
heard of for more than seven years, since
the date of missing i.e. 23.07.2010 ?
In the
Affirmative
2. Whether the plaintiff is entitled for decree of
declaration that Shri. Namdev Jagannath
Kamble 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. Namdev Jagannath
Kamble to be issued by B.M.C.?
In the
Affirmative
4. What Order and decree ? As per Final Order
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4 SU NO.1475 of 2020
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-05. She has deposed on oath and she
has reiterated all the contentions in the plaint in the Affidavit of
Evidence. She was cross-examined by the advocates of defendants. In
cross examination she has stated that missing person is her husband
who went missing from 23.07.2010 from Vinoba Bhave Nagar, Mumbai
and she had lodged the missing complaint. In her cross-examination she
stated that she had not issued paper notice. Further, she stated that she
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.06. The plaintiff has produced on
record lettr issued by Vinoba Bhave Nagar Police Station (Exh.08),
original Election Card (Exh-09), original light bill (Exh.10), letter dated
11.02.2022 issued by plaintiff to Vinoba Bhave Nagar Police Station
(Exh.11), original Caste Certificate (Exh.12).
9. The learned advocate for defendants submitted that the suit
is barred by law of limitation. It is further submitted that the husband of
the plaintiff went missing since 23.07.2010. 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
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did not hear anything about her husband Shri. Namdev Jagannath
Kamble since 23.07.2010 and the cause of action for institution of the
suit is recurring one and until the plaintiff realized that her husband
Shri. Namdev Jagannath Kamble cannot be traced, she 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 husband of the
plaintiff went missing since 23.07.2010. The plaintiff has deposed on
oath that she took all the efforts to find her missing husband and she
also lodged missing complaint with police, but police also could not
trace him. Despite of her efforts, she could not find the missing person.
Thus, it is proved from the evidence produced on record by the plaintiff
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that her husband was missing since 23.07.2010 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. Namdev Jagannath Kamble went missing since
23.07.2010. 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. Namdev
Jagannath Kamble 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.1475 of 2020 is hereby decreed.
2. It is hereby declared that the husband of the
plaintiff Shri. Namdev Jagannath Kamble 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. Namdev Jagannath Kamble 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: 10.05.2024 Gr.Mumbai.
Dictated on : 10.05.2024
Typed on : 10.05.2024
Signed on : 10.05.2024
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8 SU NO.1475 of 2020
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
10.05.2024 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
10.05.2024
Judgment/Order signed by P.O. on 10.05.2024
Judgment/Order uploaded on 10.05.2024
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