Final Order 2

Order Details: Copy of Judgment
Pdf Text: 1 Judgment in Suit No. 16042019
MHCC010033192019
Presented on : 22-03-2019
Registered on : 25-06-2019
Decided on : 23-03-2023
Duration : 4 yrs, 0 mths, 1d
IN THE BOMBAY CITY CIVIL COURT AT MUMBAI
SUIT NO. 1604 OF 2019
Exhibit No.:
1) Mrs. Asha Shyam Gupta
Age: 57, Occupation : Housewife,
2) Mr. Rahul Shyam Gupta
Age:31 , Occupation : Business
3) Mr. Anshul Gupta
Age:25 , Occupation : Service
All are residing at Flat No. B/305, Gagangiri Bldg.,
Abhudaya Bank Road, Sec17,
Vashi, Navi Mumbai, Tal and Dist. Thane. ....Plaintiffs.
VERSUS
1) The State of Maharashtra
Through Chembur Police Station,
Chembur, Mumbai
2) Mumbai Municipal Corporation
Chembur, Mumbai- 400 072. ....Defendants
Appearances:
Ld Advocate Meghna Nimbalkar for plaintiff.
Ld. Advocate Kapse for Defendant No.1.
Ld. Advocate Chandramore for Defendant No.2/MCGM.
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2 Judgment in Suit No. 16042019
CORAM : SHRI. K.P. KSHIRSAGAR
JUDGE, (C.R.NO.08)
DATE : 23rd MARCH, 2023.
JUDGMENT
This is a suit for declaration that Mr. Shyam Babulal
Gupta is dead.
Plaintiff's case in brief is as under:
2) Mr. Shyam Babulal Gupta was husband of plaintiff
No.1 and father of Plaintiff No.2 and 3. Mr. Shyam Babulal
Gupta went missing from his house since 28/8/2010. Inspite of
search Mr. Shyam Babulal Gupta was not found. Therefore,
plaintiff No.1 had lodged missing complaint on 15/9/2010 in
Chembur police station. However, in spite of missing complaint
Mr. Shyam Babulal Gupta has not been seen or heard by the
plaintiffs or anybody till date. Therefore, plaintiffs prayed for
declaration that Mr. Shyam Babulal Gupta died on 9/2/2011.
3) Defendant No.2 failed to file its written statement.
Therefore, suit is proceeded without written statement of
defendant No.2. Defendant No.1 resisted claim of plaintiff by
filing its written statement vide Exh.8. Defendant No.2 admitted
the fact that missing complaint was lodged with Chembur police
station in respect of Mr. Shyam Babulal Gupta on 15/9/10
wherein it was mentioned that Mr. Shyam Babulal Gupta left
premises on 28/8/10. It is the defence of defendant No.1 that
suit is bad for want of statutory notice u/s 80 of Civil Procedure
Code and it does not disclose cause of action. Therefore,
defendant No.1 submitted that suit be dismissed.
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3 Judgment in Suit No. 16042019
4) From the pleading of the parties, court framed
issues at Exh.9. Court has reproduced those issues below
alongwith its decision thereon for the reasons stated
thereunder:
SR.NO. ISSUES DECISION
1) Whether plaintiffs prove that, Mr.
Shyam Babulal Gupta has not been
heard for more than last 7 years by
those who would naturally have heard
of him if he had been alive and
therefore, he has to be presumed to be
dead?
Proved.
2) Whether plaintiff is entitled for the
relief of declaration as prayed?
Yes to the extent of
death of Mr. Shyam
Babulal Gupta.
3) What Order and decree? As per final order.
REASONS
5) In order to prove their claim, plaintiffs examined
themselves by filing affidavit in lieu of examination in chief vide
Exh.4,5 and 6 respectively. However, only PW2 Mr. Rahul
Shyam Gupta i.e. plaintiff No.2 appeared for his cross
examination and plaintiffs vide their evidence closure pursis
submitted to discard the evidence of PW1 and PW3. Plaintiffs
also relied upon various documents like extract of missing
persons register Exh.12, original certificate issued by police
inspector Exh.13, etc. On the other hand, defendants did not
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4 Judgment in Suit No. 16042019
adduce any oral or documentary evidence.
6) Heard arguments advanced by Ld. Advocate for
plaintiff and Ld. Advocates for defendants.
As to Issue no. 1:
7) In respect of fact in this issue, P.W.2 Rahul Shyam
Gupta vide his affidavit in lieu of examination Exhibit 5
deposed in accordance with plaintiff's claim. P.W.2 categorically
deposed that his father Mr. Shyam Babulal Gupta went missing
from his home since 28/8/2010. PW2 further deposed that
plaintiff No.1 lodged missing complaint in Chembur police
station on 15/9/10 and Chembur police station had issued
certificate to that effect. PW2 deposed that since 28/8/2010
nobody has seen or heard Shyam Babulal Gupta who would
naturally have seen or heard of him if he had been alive. The
documents produced and proved by the plaintiffs corroborates
testimony of PW2. Testimony of PW2 is also not shaken in his
cross examination.
8) It is also not the defence of the defendants that Mr.
Shyam Babulal Gupta is alive and he was seen or heard within
last seven years. As such, there is no reason so as to disbelieve
the testimony of plaintiff's witness i.e. plaintiff No.2 that his
father has not been heard for last 7 years or more by those who
would naturally have heard of him, if he had been alive.
Therefore, presumption under Section 108 of the Indian
Evidence Act will have to be raised. As the defendants did not
affirm that Mr. Shyam Babulal Gupta is alive, it will have to be
presumed as per Section 108 of the Indian Evidence Act that Mr.
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Shyam Babulal Gupta is dead.
9) Considering the matter on record and above
discussion, Court hold that plaintiffs proved by preponderance
of probability the fact that Mr. Shyam Babulal Gupta has not
been heard for last 7 years or more by those who would
naturally have heard of him, if he had been alive and therefore
he is presumed to be dead. Therefore, issue no. 1 is answered in
Affirmative.
As to issue no. 2:
10) Plaintiff has prayed for declaration that Mr. Shyam
Babulal Gupta died on 9/2/2011. However, presumption
u/s.108 of Indian Evidence Act is about the death and there is
no presumption as to the time or date of death of the person.
Moreover, there is no evidence on record about date of death of
Mr. Shyam Babulal Gupta. Therefore, plaintiffs failed to prove
date of death of Mr. Shyam Babulal Gupta. However, in view of
affirmative finding as to issue no. 1, Mr. Shyam Babulal Gupta
will have to be presumed to be dead. Therefore, Court find that
plaintiff is entitled for declaration of civil death of Mr. Shyam
Babulal Gupta and plaintiff is not entitled for the declaration of
date of death of Mr. Shyam Babulal Gupta as sought. Therefore,
issue no. 2 is answered in Affirmative.
As to issue no. 3:
11) In view of the decision as to issue nos. 1 and 2, suit
deserves to be partly decreed with proportionate cost. Therefore,
Court proceeds to pass the following order :
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ORDER
1) Suit is partly decreed with proportionate costs.
2) It is hereby declared that, Mr. Shyam Babulal Gupta is dead.
3) Decree be drawn up accordingly.
(K.P.KSHIRSAGAR)
Judge
Dt.: 23/3/2023. City Civil Court,
Gr. Mumbai.
Dictated on : 23/3/2023.
Typed on :24/3/2023.
Draft received on:24/3/2023.
Checked on:30/3/2023.
Corrected & Signed on :30/3/2023.
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
31/3/2023 Mrs. S.A. Shekade.
Name of the Judge (With Court room
no.)
SHRI K.P. Kshirsagar (Court Room
No.08)
Date of Pronouncement of
JUDGMENT/ORDER
23/3/2023
JUDGMENT/ORDER signed by P.O.
on
30/3/2023
JUDGMENT/ORDER uploaded on 31/3/2023
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