Final Order 1

Order Details: Copy of Judgment
Pdf Text: 1
Lodged on : 15.03.2022
Registered on : 14.07.2022
Decided on : 30.03.2024
Duration : 02 Y : 15 M : 00 D
EXHIBIT-12
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
SUIT NO. 1560 OF 2022
(C.N.R. NO. MHCC01-003744-2022)
Rajshree Namdeo Ranaware ]
Age 45 years,Occ. Housewife ]
R/a. : S.No.37/16, Tanaji Nagar ]
Dhankawadi, Pune City, Pune ]
Maharashtra – 411043 ] ... Plaintiff.
V/s.
1. The State of Maharashtra, ]
Through Senior Police Inspector, ]
Kalachowki Police Station, ]
Mumbai – 400 033. ]
2. Namdeo Subhash Ranware ]
Age : 35 years, Occ. : Business, ]
Khandelwal Building, Ground Floor, ]
Room No.32, J.B. Marg, Kalachowky ]
Mumbai – 400 033. ] ...Defendants.
Advocates Mr. Vijendra Mishra for the plaintiff.
Advocate Mr. R. S. Khatib for Defendant No.1/State.
CORAM : HIS HONOUR JUDGE
SHRI VAIBHAV V. PATIL
(C.R.No.09).
DATE : 30th MARCH 2024.
JUDGMENT
Present suit is instituted for the relief of death declaration
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that Shri. Namdeo Subhash Ranaware 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.
Namdeo Subhash Ranaware who went missing on 29.02.2008 from
Kalachowky, Mumbai. The plaintiff took search of her husband but she
could not find him. Hence she lodged missing complaint of her husband
on 29.02.2008 with Kalachowky Police Station, Mumbai and the police
registered said complaint and recorded missing report dated
29.02.2008. Thereafter, plaintiff, as well as police made every possible
efforts to trace Shri. Namdeo Subhash Ranaware however, he could not
be found even-after due and diligent search. Kalachowky Police Station
issued missing certificate on 22.01.2016.
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
presumption of death of Shri. Namdeo Subhash Ranaware who is not
heard of for more than seven years under section 108 of Indian
Evidence Act, 1908.
4. The Defendant No. 1 filed written statement vide Exh.07
and resisted the claim of plaintiff by submitting that the present suit is
beyond limitation and is liable to be dismissed.
5. In view of pleadings, following issues arises my
determination and I have recorded my findings to each of them for the
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reasons stated below.
Sr.
No.
ISSUES FINDINGS
1. Whether the plaintiff proves that Shri.
Namdeo Subhash Ranaware has not been
heard of for more than seven years, since
the date of missing i.e. 29.02.2008 ?
In the
Affirmative
2. Whether the plaintiff is entitled for decree of
declaration that Shri. Namdeo Subhash
Ranaware 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. Namdeo Subhash
Ranaware to be issued by B.M.C.?
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 :
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-8. 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 29.02.2008 from Kalachowky, Mumbai. In her cross-
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examination she stated that she had not issued paper notice. Further,
she stated that she has not issued notice to State before institution of
the Suit.
8. In support of the suit claim, the plaintiff has produced on
record list of documents vide Exh.09. The plaintiff has produced on
record original of the letters from concerned police station dated
22.01.2016 and 17.02.2021 (Exh.10).
9. The learned advocate for defendant submitted that the suit
is barred by law of limitation. It is further submitted that the husband of
the plaintiff went missing since 29.02.2008. 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
did not hear anything about her husband Shri. Namdeo Subhash
Ranaware since 29.02.2008 and the cause of action for institution of the
suit is recurring one and until the plaintiff realized that her husband
Shri. Namdeo Subhash Ranaware 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
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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 29.02.2008. 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
that her husband was missing since 29.02.2008 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. Namdeo Subhash Ranaware went missing since
29.02.2008. The defendants have not disputed the said fact that he is
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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. 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.
ORDER
1. The suit is hereby decreed.
2. It is hereby declared that the husband of the plaintiff
Shri. Namdeo Subhash Ranaware is not being heard of
for more than last seven years and he is Civil Dead.
3. No order as to costs of the suit.
4. Decree be drawn up accordingly.
5. The original documents, if any, be returned to
the plaintiff after the appeal period is over.
6. The suit stands disposed of accordingly.
(VAIBHAV V. PATIL)
Judge,
City Civil Court,
Date: 30.03.2024 Gr.Mumbai.
Dictated on : 30.03.2024
Typed on : 30.03.2024
Signed on : 03.04.2024
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
03.04.2024 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
30.03.2024
Judgment/Order signed by P.O. on 03.04.2024
Judgment/Order uploaded on 03.04.2024
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