Order 1

Order Details: Copy of Judgment
Pdf Text: 1 Judgment in Suit No.1202/2018
Filed on : 09.03.2018
Registered on : 06.04.2018
Decided on : 22.01.2020
Duration : Year01 Month10 Days15
Exh25
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
Suit No.1202/2018
(CNR NO. MH CC010033782018)
1) Mansi Manish Malap
Age : 48 years,
Occupation: Service,
R/at : A/702, Ambaji Darshan,
Bhattipada Cross Road, Near NES School,
Bhandup (W), Mumbai78. …..Plaintiff
V/s.
State of Maharashtra
Through office of the
Government Pleader City Civil Court,
Gr. Bombay ....Defendant
Appearance:
Ms. Snehal Marathe, Advocate for the plaintiff.
Mr. A. S. Kapse, for the defendant.
CORAM : HER HONOUR JUDGE
JAYSHRI R. PULATE
(C.R.NO.12)
DATE : 22 nd January, 2020.
JUDGMENT
1. This suit is filed for declaration that husband of plaintiff Mr.
Manish Damodar Malap be presumed as dead.
2. It is averred by plaintiff that she is working with Indian Navy
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Material Organization, at Ghatkopar (W), Mumbai since last 25 years.
She was married with Mr. Manish Damodar Malap and residing at 2/75,
Kodaji Chawl, J.W. Road, Parel, Mumbai. Their marriage was
solemnized on 21.11.2000. Out of the said wedlock, the plaintiff gave
birth to two female children i.e. Sanika presently 15 years old and
Tanishka presently 10 years old.
3. It is averred that in the last week of August2009, plaintiff
got knowledge that her husband is in illicit relationship with one of his
colleague Mrs. Anita. In the month of September 2009, the plaintiff
asked her husband about extramarital relations. He got annoyed and
abused the plaintiff in filthy language. On next day, husband of plaintiff
refused to carry his Tiffin Box prepared by plaintiff. He did not return
home in the evening. Therefore, plaintiff called him and he informed
that he was going to Parel to see his mother and further informed that he
will stay there for some days. However, even after passing of two days
her husband did not return home. Therefore, on 16.09.2009 the plaintiff
went to Parel to see her Sister in Law as she delivered the baby. On that
day, plaintiff met her husband at Parel and he assured that he will return
home by next day.
4. It is further averred that on 17.09.2009, husband of plaintiff
did not return and he also did not answer phone call. Therefore, plaintiff
called the colleagues of her husband and she was informed that her
husband had not attended the office since 16.09.2009. Therefore, on
18.09.2009 plaintiff went to her mother in law at Parel. She was
informed that her husband left the home on 17.09.2009 on the pretext of
visiting the office on his bike Honda Active bearing No. MH 03 YH 5086.
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5. The plaintiff had inquired with the acquaintances of
knowing whereabout of her husband and lastly with his employer i.e.
with Indian Navy where he was working as Clerk. The office staff
informed the plaintiff that her husband has possibly eloped with his
colleague Mrs. Anita as both of them have not attended the office since
16.09.2009. Eventually, police complaint at Bhoiwada Police Station
was lodged by the plaintiff. She further approached “Doordarshan”
Channel to broadcast the information and photograph of her husband
through request letter dated 18.01.2011. She also wrote a letter dated
06.01.2011 to the Home Minister about missing of her husband and for
making inquiry in that respect. She had personally visited all the
possible places where her husband used to visit and made all possible
inquiries at different places. Certificate dated 28.10.2017 was issued by
Bhoiwada police station stating that in spite of sincere efforts of
concerned police station, Mr. Manish Damodar Malap could not be
traced out.
6. It is further averred that the office of husband of plaintiff
also wrote a letter dated 09.01.2012 to the Director General of Police
Headquarters, Maharashtra State Police at Mumbai stating that their
employer Mr. Manish Damodar Malap, has not been traced out till date
and further requested the detail report to be forwarded to the office as
same is required for further disciplinary action. On 21.09.2016 and
07.09.2017, office of plaintiff's husband addressed letter to plaintiff to
finally settle the claim of her husband as he has disappeared for more
than seven years. On 25.10.2017, the said office issued certificate
stating that their employee Mr. Manish Damodar Malap, has been
employed in the Indian Navy from 18.09.1992 and therefore remained
unauthorizedly absent from duty with effect from 16.09.2009. It is
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further averred that the plaintiff is living with her two minor daughters
and the chances of her husband being traced out are almost nil.
Husband of plaintiff had taken long term loan of Rs.1,50,000/ from the
Naval Dockyard Coop. Bank Ltd. for which Mr. John Francis D'souza and
Mrs. Rathna Ashok Sundar, the colleagues of the husband stood surety
for the said loan. As per the Bank policy, the balance amount of loan has
been partly deducted from pay and allowances of the said sureties. The
plaintiff received two letters dated 02.12.2017 from both the sureties
asking her to repay the amount which they have paid as sureties. The
husband of plaintiff has left some Movable and Immovable property such
as Joint Account and Locker in Nationalized Bank, Joint LIC policies,
Benefits from his service and the house in which the plaintiff is residing ,
jointly owned by plaintiff with her husband. The Bank has issued many
notices to plaintiff in respect of operating of locker as it is not accessed
for last eight years. Resultantly, the suit is filed.
7. In response to writ of summons, defendant filed written
statement at Exh9. It is averred that the suit is bad want of statutory
notice under Section 80 of Code of Civil Procedure. No cause of action is
disclosed in the plaint. It is admitted that on 17.09.2009, the plaintiff
lodged complaint to the police station about missing of her husband and
certificate No.13945/2017 dated 28.10.2017 was issued by the
concerned police station. For all these reasons, it is prayed that the suit
may kindly be dismissed with cost.
8. I have framed issues vide Exh17. Those are reproduced
along with the findings and reasons against each of them as stated
below.
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SR. NOS. ISSUES FINDINGS
1. Whether the plaintiff proves that
Mr. Manish Damodar Malap is not
heard of who would have
naturally heard of him since the
date of his missing for period of
more than 7 years, if he would
have been alive ?
In Affirmative
2. Whether defendant proves that
suit is bad for want of Notice
U/s.80 (2) of Code of Civil
Procedure ?
In Negative
3. Whether the plaintiff is entitled
for the relief of declaration as
prayed ?
In Affirmative
4. What Order and Decree ? As per final order
As to Issue No.1:
9. In order to substantiate the claim, plaintiff Mrs. Mansi
Manish Malap has tendered affidavit of ExaminationinChief at Exh10.
She has reiterated the contentions raised in the plaint. In support of her
contention, she has relied on Copy of marriage certificate, Copies of birth
certificate of her daughters at Exh13 and 14, True copy of missing
complaint dated 23.09.2009. She has further relied on the certificate
dated 28.10.2017 and 11.05.2010 issued by the Bhoiwada police station,
Copy of letter issued by Administrative OfficerII of Western Naval
Command, Mumbai to the Director General of Police and Additional
Director General of Police which shows that the News/Gazette of missing
person Mr. Manish Damodar Malap has not been received and it is
essential for further disciplinary action against him, Copy of letter
addressed by Administrative Officer Gr.I of Western Naval Command
dated 21.09.2016 to plaintiff for final settlement of claim of her husband
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Mr. Manish Damodar Malap, Certificate issued by the Staff Officer
(Establishment) for Flag Officer CommandinginChief to Western Naval
Command, Mumbai that Mr. Manish Damodar Malap employed in the
Indian Navy from 18.09.1992 and he is absent from duty since
16.09.2009. These documents are marked at Exh19 to 24 .
10. It has been deposed by PW1 i.e. Mrs. Mansi Manish Malap
that her husband Mr. Manish Damodar Malap is missing since
16.09.2009 and missing complaint dated 23.09.2009 was lodged at
Bhoiwada police station. In her cross examination, she has stated that
her husband is missing from 17.09.2009 and certificate was issued by
concerned police station in the year 2010 and 2017. In this context,
certificate dated 28.10.2017 and 11.05.2010 at Exh20 and 21 issued by
Senior Inspector Bhoiwada police station are evident to show that
complaint is registered about missing person Mr. Manish Damodar Malap
and he is untraceable as per the record of police station. Public notice
issued in the newspaper “Navakal” reflects that despite publication of
said notice, Mr. Manish Damodar Malap is untraceable.
11. Considering the evidence of Mrs. Manasi Malap and relevant
documents i.e. complaint lodged in Bhoiwada police station and
certificate dated 28.10.2017 and 11.05.2010 issued by Senior Inspector
Bhoidwada police station, it has come on record that Mr. Manish
Damodar Malap is untraceable.
12. Section 107 and 108 of Indian Evidence Act, 1872 reads
thus :
Section:107 Burden of proving death of person known to
have been alive within thirty years. When the question is
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whether a man is alive or dead, and it is shown that he was alive
within thirty years, the burden of proving that he is dead is on the
person who affirms it.
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.
In the scheme of Indian Evidence Act, Section 108 is an exception
to the rule enacted in Section 107. The life of person shown to be in
existence at a given point of time according to Section107 ought to be a
point within 30 years calculated backwards from the date when the
question arises, is presumed to continue to be living. As per Section 108,
if the person who would have naturally and in the ordinary course of
human affairs heard of the person in question have not so heard of him
for seven years, the presumption raised under Section 107 ceases to
operate. Though, it will be presumed that person is dead but there is no
presumption as to the date or time of death. There is no presumption as
to the facts and circumstances under which the person may have died.
13. Learned Advocate for plaintiff has tendered the written
argument at Exh16. The gist of the said argument is that from the
certificate issued by Bhoiwada police station and the letters of Western
Naval Command, it has come on record that Mr. Manish Damodar Malap
is missing since 16.09.2009 and therefore plaintiff is entitled for the
relief of declaration as sought.
14. In order to support her contention, learned Advocate for
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plaintiff has cited the Judgment in the matter of Smt. Swati w/o Abhay
Deshmukh and ors. V/s. Mr. Abhay s/o Purushottam Deshmukh &
ors. in Second Appeal No.18/2016, dated 26.02.2016.
It has been observed by Hon'ble High Court, Nagpur Bench that :
The Civil Court acting under Section9, has inherent powers
in its plenary jurisdiction de hors with reference to Section 34
of the Specific Relief Act to grant relief qua Section 108 of the
Evidence Act.
Considering the observations in the cited judgment and in view of
the dictum laid down by Hon'ble Supreme Court in “LIC of India V/s.
Anuradha AIR 2004 SC 2017”, that the presumption as to death by
reference to Section108 would arise only on lapse of seven years. An
occasion for raising the presumption would arise only when the question
is raised in a Court, Tribunal or before an Authority who is called upon to
decide as to whether a person is alive or dead, I am of the opinion that
evidence on record is evident to show that Mr. Manish Damodar Malap
has not been heard of by the persons who would have naturally heard of
him since 16.09.2009.
In the case in hand, Mr. Manish Damodar Malap is missing since
16.09.2009. The letter dated 28.10.2017, issued by Bhoiwada police
station shows that he is untraceable. The objection as to death of Mr.
Manish Damodar Malap was raised when letter Ext 23 was addressed by
Administrative Officer Gr.I of Western Naval Command dated
21.09.2016 to plaintiff for final settlement of claim of her husband.
Therefore, the suit is filed within limitation. Accordingly, issue No.1 is
answered in affirmative.
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As to issue No.2 :
15. It is averred by defendant that suit is hit by Section 80 of
Code of Civil Procedure, as notice before filing the suit is not issued to
the defendant. As per Section 80 of CPC, prior notice of two months
has to be issued against the Government or any public officer in respect
of any act purporting to be done by such public officer in his official
capacity. In the present case, leave under Section 80(2) of Code of Civil
Procedure is granted to the plaintiff. No substantial relief is sought
against the defendant and therefore suit is not hit by the non issuance of
notice under Section 80 of Code of Civil Procedure. Resultantly, issue
No. 2 is answered in negative.
As to issue No.3.
16. Considering the evidence adduced on record and the
documents relied on behalf of plaintiff, I am of the opinion that plaintiff
is entitled for the relief of declaration of civil death of Mr. Manish
Damodar Malap. In view of the findings and reasons for issue Nos.1 and
2, plaintiff is entitled for relief of declaration as sought. The plaintiff has
claimed the declaration of civil death of Mr. Manish Damodar Malap
against defendant/State of Maharashtra. Therefore, she shall bear the
cost of suit. Resultantly, issue No. 3 is answered in affirmative and for
the answer of issue No.4, I pass following order.
ORDER
1) Suit is decreed.
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2) Plaintiff shall bear her own cost.
3) It is declared that Mr. Manish Damodar Malap is presumed to be
dead as he is missing since 16.09.2019.
4) Decree be drawn accordingly.
(Jayshri R. Pulate)
Judge
City Civil Court,
Gr. Bombay
Date : 22/01/2020
Dictated on : 22.01.2020
Transcribed on : 22.01.2020
Signed on : 23.01.2020
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED ORDER.”
UPLOAD DATE TIME STENOGRAPHER NAME
24.01.2020 11.20 a.m. Ms. Ujwala J. Bhagat.
Name of the Judge H.H.J. Jayshri R. Pulate.
(Court Room No.12)
Date of pronouncement of Order 22.01.2020
Order signed by P.O. on 23.01.2020
Order uploaded on 24.01.2020
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