Final Order 1

Order Details: Copy of Judgment
Pdf Text: 1
MHCC010027012019
Lodged on : 07.03.2019
Registered on : 01.07.2019
Decided on : 24.11.2023
Duration : 04Y 08M 17D
EXHIBIT-15
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
SUIT NO. 1896 OF 2019
MR. RAJU SAKHARAM ]
YELWANDE, Age 52 years, ]
Residing at Suryoday Building, ]
3rd Floor, Room No.308, ]
Opposite St. Joseph High ]
School (Boys Section), Dongri, ]
Mumbai 400 009. ]
Mobile No.8796975977. ].. Plaintiff.
V/s.
1. THE STATE OF ]
MAHARASTRA, ]
2. SENIOR INSPECTOR OF ]
POLICE, J.J. Marg Police ]
Station, Mumbai 400 042. ]
3. MUNICIPAL CORPORATION ]
OF GREATER MUMBAI, ]
A body incorporated under ]
provision of BMC Act having ]
its office situated at through ]
Assistant Municipal ]
Commissioner, “B” Ward, ]
Mumbai. ]..Defendants.
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Advocates Ms. Nirjala Mishra for the plaintiff.
Advocate Mr. Khatib for State/defendant Nos.1 and 2.
Advocate Mrs. Chandramore for BMC/defendant No.3.
CORAM : HIS HONOUR JUDGE
SHRI VAIBHAV V. PATIL
(C.R.No.09).
DATE : 24TH NOVEMBER 2023.
JUDGMENT
Present suit is instituted for the relief of death declaration
that Mr. Sakharam Shankar Yelwande is presumed to be Civil dead as he
has not been heard of for more than 7 years and for giving directions to
the defendants for issuance of death certificate.
2. It is the case of plaintiff that he is the son of Mr. Sakharam
Shankar Yelwande who has been missing since 27.05.2004 from Grant
Medical College and Sir J.J. Hospitals, Mumbai and since then he did
not come back. The plaintiff and his family members were under the
impression that his father will come back shortly hence they waited for
some time and also searched all the places for the whereabouts of the
plaintiff’s father everywhere in the hospitals and enquired with all his
relatives and all family friends to find the whereabouts of plaintiff’s
father. However, his father’s whereabouts could not be located.
Therefore, the plaintiff filed missing complaint on 30.05.2004 to the J.J.
Marg Police Station bearing No.40/2004. After lodging the complaint,
the officers of the concerned police station investigated into the matter.
But till today he has not been traced out or his whereabouts are not
known till date. The Senior Inspector of Police, J.J. Marg Police Station
issued original copy of Missing Complaint vide A.M.R. No.40 of 2004.
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3. It is further case of the plaintiff that the cause of action for
filing suit arose on 27.05.2004 when the missing father of the plaintiff
left Grant Medical College and Sir. J.J. Group of Hospital, Mumbai after
his treatment. Hence, this Court has jurisdiction to entertain, try and
dispose of this Suit. Hence, the plaintiff has sought declaration that the
father of the plaintiff Mr. Sakharam Shankar Yelwande is civil dead and
prayed that direction be given to defendants for issuance of death
certificate of his father and also prayed for decree of the suit.
4. The Defendant Nos.1 and 2 have filed written statement
vide Exh.5 and resisted the suit. It is contended that the suit is
misconceived, bad-in-law and not maintainable. The suit is barred for
want of Statutory Notice under section 80 of the Civil Procedure Code,
1908. The plaint does not disclose any cause of action as against this
defendant. The present suit is filed beyond the period of limitation of
period. Hence, the suit is liable to be dismissed with costs.
5. Though defendant No.3/BMC appeared, failed to file its
written statement. Hence, suit came to be proceeded without written
statement of the defendant No.3.
6. I have heard learned advocate for the plaintiff, the learned
advocate for State/defendant Nos.1 and 2 and learned advocate for
defendant No.3/BMC.
7. In view of pleadings, on 18.10.2023, I have framed issues
vide Exhibit-8A and I have recorded my findings to each of them for the
reasons stated below.
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Sr.
No.
ISSUES FINDINGS
1 Whether the plaintiff is entitled to a decree
for declaration that Mr. Sakharam Shankar
Yelwande is presumed to be dead as per
Section 108 of the Indian Evidence Act ?
In the
Affirmative
2 Whether plaintiff is entitled for a Death
Certificate of Mr. Sakharam Shankar
Yelwande to be issued by B.M.C. ?
In the
Affirmative
3 Whether the plaintiff is entitled for the relief
of declaration as prayed ?
In the
Affirmative
4 What Order and decree ? As per Final Order
R E A S O N S
AS TO ISSUE NOS.1 TO 3 :
8. As all these points are related with each other, they are
discussed together to avoid repetition.
9. The plaintiff has filed his Affidavit of Evidence at Exhibit-5
and deposed on oath and he has reiterated all the contentions in his
plaint in the Affidavit of Evidence. He was cross-examined by both the
advocates of defendants. In cross examination he has stated that he had
not issued public notice in newspaper. He has not issued notice to the
defendants before filing the present suit. In cross-examination, further
he stated that he had not made application to BMC for issuing Death
Certificate of his father and he had not issued notice to BMC before
institution of the suit.
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10. In support of the suit claim, the plaintiff has produced on
record list of documents vide Exh.6. The plaintiff has produced on
Ration Card of his father (Exh.9), Aadhaar Cards of plaintiff and his
sister (Exh.10 colly.) and Electricity Bill (Exh.11). The plaintiff has
produced on record letter dated 26.05.2018 issued by J.J. Marg Police
Station that record regarding missing complaint of his father is not
available (Exh.12 colly.). It shows that the plaintiff has lodged
complaint regarding missing of his father vide A.M.R. No.40/2004
dated 30.05.2004. The plaintiff has produced on record death certificate
of his mother (Exh.13). The learned advocate for the plaintiff has filed
evidence closed pursis (Exh.14).
11. The learned advocate for defendants submitted that the suit
is barred by law of limitation. It is further submitted that the father of
the plaintiff went missing since 27.05.2004. Therefore, he ought to have
instituted the suit within three years from the date of cause of action,
to 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 father since 27.05.2004 and the cause of action
for institution of the suit is recurring one and until the plaintiff realized
that his father Mr. Sakharam Shankar Yelwande cannot be traced, he
cannot be compelled to institute the suit for declaring him 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.
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12. 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.
13. In the present case, it is evident that the father of the
plaintiff went missing since 27.05.2004. The plaintiff has deposed on
oath that he took all the efforts to find him and also lodged missing
complaint with police, but police also could not trace him. Despite of
their efforts, they could not find the missing person. Thus, it is proved
from the evidence produced on record by the plaintiff that his father
was missing since 27.05.2004 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.
14. In view of above documents and the oral evidence, plaintiff
has proved that Mr. Sakharam Shankar Yelwande went missing since
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27.05.2004. 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.
15. 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 Mr. Sakharam
Shankar Yelwande to be issued by the defendant No.3.
16. In the circumstances above, I have come to the conclusion
that plaintiff is entitled to the declaration as prayed for. Accordingly, I
answer point Nos.1 to 3 in the affirmative and in answer to point No. 4,
I proceed to pass following order.
ORDER
1. The suit is hereby decreed.
2. It is hereby declared that the father of the plaintiff
Mr. Sakharam Shankar Yelwande 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 Mr. Sakharam Shankar Yelwande and issue death
certificate accordingly.
4. No order as to costs of the suit.
5. Decree be drawn up accordingly.
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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: 24.11.2023 Gr.Mumbai.
Dictated on : 24.11.2023
Typed on : 24.11.2023
Signed on : 28.11.2023
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
28/11/2023 At 04.00 P.M. MRS. SUPRIYA S.PAWAR
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
24/11/2023
Judgment/Order signed by P.O. on 28/11/2023
Judgment/Order uploaded on 28/11/2023
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