Final Order 1

Order Details: Copy of Judgment
Pdf Text: L.C. Suit No.2986-2019 1 Judgment
MHCC010040542019
Presented on : 08-04-2019
Registered on : 14-11-2019
Decided on : 07-05-2024
Duration : 5 years, 0 months, 29 days
IN THE BOMBAY CITY CIVIL COURT AT MUMBAI
L.C. SUIT NO. 2986 OF 2019
Exhibit No.:
Smt. Deubai Popat Zende ]
Hut No.145, Ambedkar Nagar ]
Dhobighat, Colaba, Cuffe Parade ]
Mumbai- 400 005 ] ...Plaintiff
Versus
1. The State of Maharashtra ]… Defendant No.1
2. Senior Inspector of Police
Agripada Police Station, Mumbai-11 ]… Defendant No.2
3. Municipal Corporation of Greater ]
Mumbai, Through Assistant ]
Municipal Commissioner, ‘A’ Ward ]
Mumbai- 400 005. ] … Defendant No.3
Appearances:-
Ld. Advocate Subhash Khade for Plaintiff.
Ld. Advocate Sachin Kadam for Defendant No.1 & 2.
Ld. Advocate Pradnya Chandramore for Defendant No.3.
CORAM : V. G. RAGHUWANSHI
JUDGE, (C.R.NO.08)
DATE : 07/05/2024
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L.C. Suit No.2986-2019 2 Judgment
JUDGMENT
1) This is a suit for declaration that plaintiff's husband Popat
Sitaram Zende is dead and mandatory injunctions directing :-
(a) defendant No.3 to register death of husband of plaintiff and
issue death certificate of her husband and
(b) the Government authorities to incorporate name of plaintiff in
place of name of her husband Popat Zende as his legal heir(in
other words mutate her name).
2) Plaintiff's contentions are that plaintiff is permanent resident of
hut No.145, Ambedkar Nagar, Dhobi Ghat, Colaba, Cuffe Parade,
Mumbai- 05. Her husband Popat was born at Ambale, Taluka
Shirur, district Pune. He took education at Ambale. Plaintiff got
married with Popat on 27.04.1968. Plaintiff was residing with her
husband at Agripada. Her name was included in ration card.
Plaintiff has two sons and a daughter out of this wedlock. Plaintiff
is residing with her son at aforesaid address. Her one son Santosh
died on 18.09.2014. Her husband was working as hamal in the
same area.
3) Plaintiff submits that her husband went missing on 19.06.1975
and did not come back till date. Plaintiff, her family members, her
relatives and friends searched Popat Sitaram Zende. Plaintiff filed
missing complaint on 19.06.1975 in Agripada police station
bearing AMR No.18/1975. Plaintiff and her family members were
expecting that plaintiff will come back some day. They were
continuously searching plaintiff's husband at every possible place.
But till today they could not trace him. Now the plaintiff lost
hope that her husband will come back and he is alive. People has
not heard of her husband for more than 7 years. Therefore, she
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L.C. Suit No.2986-2019 3 Judgment
filed this suit.
4) Plaintiff submitted that Sr. PI of Agripada police station issued a
letter dtd.13.04.2013 stating that plaintiff made a complaint that
her husband was missing on 19.06.1975 and AMR No.18/1975
was registered. She submits that as her husband has not been
heard of during this period, she is entitled to the relief claimed by
her. She prayed accordingly.
5) Defendants were served. They did not file their written statement.
Hence, the suit was proceeded without written statement of
defendants. This means defendants do not deny that plaintiff's
husband was missing. She lodged report in police station and it
was registered as AMR No.18/1975 and her husband is still
missing. He has not been heard of during this period.
6) Plaintiff in order to prove her contentions filed affidavit of
evidence and additional affidavit of evidence (Exh.7 & 7A). She
filed copies of school leaving certificate of her husband (Exh.9),
ration card of her husband (Exh.10), Aadhar card (Exh.11),
Aadhar card of her son Ramesh (Exh.12), leaving certificate of
Jayashri Popat Zende (Exh.13), Aadhar card of Jashri (Exh.14),
death certificate of Santosh Zende (Exh.15) in support of her
contentions. Defendant did not enter witness box. I have perused
notes of arguments filed by plaintiff.
7) Plaintiff's contention that she was married to Popat Zende on
27.04.1968, she had three children Santosh, Ramesh and Jaya
out of this wedlock and thereafter, on 19.06.1975 Popat Zende
went missing went uncontroverted. That means defendants do
not deny that Popat Zende went missing on 19.06.1975 and
thereafter, adult missing report No.18/1975 was registered on
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L.C. Suit No.2986-2019 4 Judgment
complaint of plaintiff. Defendants do not contend that they fished
out Popat. Therefore, plaintiff's contention that Popat is missing
till date and he has not been heard of till today also went
uncontroverted. Thus, plaintiff proved that her husband went
missing on 19.06.1975 and he was not found inspite of diligent
search. He has not been heard of thereafter by the people who
would have heard of him, if he had been alive. This entitles the
plaintiff to the relief of declaration of civil death of her husband.
8) Plaintiff also prayed for mandatory injunction directing defendant
No.3 to register death of Popat Sitaram Zende. However,
presumption under section 108 of Indian Evidence Act is about
the death and there is no presumption as to time and date of
death of said person. Plaintiff did not lead any evidence about the
date and time of death of Popat Sitaram Zende. Moreover, special
provision/remedy is available for registration of delayed births
and deaths under Registration of Births and Deaths Act 1969. In
view of such provision this court finds that there is implied bar to
jurisdiction of civil court to direct defendant No.3 to register
death of Popat Sitaram Zende and to issue death certificate.
9) Plaintiff also prayed for mutating her name in place of name of
Popat Zende on record. But, this prayer is also too vague. Plaintiff
did not specify in which record she want to replace her name in
place of her husband's name. Whether she intends to suggest
property record or any other record. She did not specify the
property in record of which she wants to replace her name. Such
vague relief cannot be granted.
10) Thus, to sum up plaintiff is entitled to declaration of civil
death of her husband. She prayed two reliefs by way of
mandatory injunction, first registering death and issuing death
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L.C. Suit No.2986-2019 5 Judgment
certificate of Popat and second replacing her name in place of
name of her husband. These two mandatory injunctions cannot
be granted for the reasons stated above. Thus, the suit deserves to
be partly allowed. Accordingly, I pass following order:-
ORDER
1) Suit is partly decreed with proportionate cost.
2) It is hereby declared that Popat Sitaram Zende is dead.
3) Decree be drawn up accordingly.
(V. G. RAGHUWANSHI)
Judge
Dt.:07/05/2024. City Civil Court,
Gr. Mumbai
Dictated & directly typed on computer : 07/05/2024
Signed on: 07/05/2024
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L.C. Suit No.2986-2019 6 Judgment
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER.”
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
08/05/2024 Mrs. S.A. Shekade
Name of the Judge (With Court room
no.)
SHRI V.G. RAGHUWANSHI (Court
Room No.08)
Date of Pronouncement of
JUDGMENT/ORDER
07/05/2024
JUDGMENT/ORDER signed by P.O.
on
07/05/2024
JUDGMENT/ORDER uploaded on 08/05/2024
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