Order 4

Order Details: Copy of Judgment
Pdf Text: 1
Lodged on : 06.04.2018
Registered on : 19.07.2018
Decided on : 24.01.2022
Duration : 03Y 09M 18D
EXHIBIT-18
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
L. C. SUIT NO. 1809 OF 2018
( CNR No.MH-CC-01-004608-2018)
SMT. ANJU HIREN DEDHIA, ]
Aged 43 years, Indian Inhabitant ]
Residing at Block – 1, Ground Floor, ]
Nalini Niwas, Library Road, ]
Dadar (West), Mumbai – 400 028. ].. Plaintiff.
V/s.
1. STATE OF MAHARASHTRA ]
Through The Chief Secretary ]
Government of Maharashtra, ]
Mantralaya, Mumbai-400 032. ]
2. THE BRIHANMUMBAI MUNICIPAL]
CORPORATION, Mahapalika Marg ]
Mumbai – 400 001. ]..Defendants.
Advocate Mr. U. L. Shah for the plaintiff.
Advocate Ms. Martina Sakpal for defendant No.1.
Advocate Mr. Divate for defendant No.2/BMC.
CORAM : HIS HONOUR JUDGE
SHRI VIDYADHAR B. KAKATKAR
(C.R.No.09).
DATE : 24th JANUARY, 2022
JUDGMENT
The Suit is instituted for the relief of declaration that the
husband of Plaintiff that is Hiren Karmashi Dedhia is civil dead and for
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directions to the Defendants to register the death of the husband of
Plaintiff and issue death certificate accordingly.
2. It is the case of the Plaintiff that, her husband who was 37
years old, left the house on 21/05/2010. He was residing with the
Plaintiff on the address given in the cause title of the plaint. He was
engaged in the business of tailoring. The marriage of Plaintiff and Hiren
took place in the year 1998. Plaintiff got two children out of the said
marriage.
3. It is the case of the Plaintiff that, her husband left the house
on 21/05/2010 at 02.30 p.m. without informing her and her family
members. Plaintiff and her relatives conducted extensive search of her
husband but he was not found. Hence, the Plaintiff lodged complaint to
police regarding missing person at Shivaji Park Police Station. It was
informed to Plaintiff by the police that after the extensive search, the
police also could not find her missing husband. It is further stated that
after making due enquiry with police and at all possible sources,
Plaintiff could not get any reliable information regarding whereabouts
of the Hiren during last seven years. Finally, police have issued
certificate that the missing person Hiren Dedhia could not be found. As
he is missing for more than seven years, Plaintiff is now entitled to the
declaration of his civil death. Hence, the Plaintiff has instituted the
present suit for declaration and mandatory injunction.
4. Suit proceeded ex-parte against the Defendant No.1.
Defendant No.2 though appeared, failed to file its written statement.
Hence suit proceeded without his written statement.
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5. Considering the plaint, documents produced on record and
oral evidence of the Plaintiff and submissions of both learned
advocated, following points arise for my determination and my findings
to them are as stated below for the following reasons.
Sr.
No.
POINTS FINDINGS
1 Whether the Plaintiff has proved that her
husband is missing and has not been heard
of for last more than 7 years?
In the
Affirmative
2 Whether Plaintiff is entitled to the
declaration as prayed for?
In the
Affirmative
3 Whether the Plaintiff is entitled to the relief
of mandatory injunction as prayed for?
In the
Affirmative
4 What Order and decree ? As per Final Order
R E A S O N S
AS TO POINT NOS.1 TO 3 :
6. All these points are related to each other and they are
discussed at once to avoid the repetition.
7. All the original documents are returned to Plaintiff and
hence xerox copies are placed on record.
8. It is the case of Plaintiff that her husband went missing
since 21/05/2010. She took reasonable search of her husband but he
was not found and hence, she lodged complaint to police. Police have
issued two certificates on 12/06/2010 and 04/07/2017 and they are
Exhibits-16 and 17 respectively. It is stated in the certificate that present
Plaintiff had filed a missing complaint of her husband on 22/05/2010
stating therein that her husband was missing since 21/05/2010. It was
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taken in the Missing Persons Register as Entry No. 17/10. It is stated in
Exhibit-17 that missing person Hiren Karmashi Dedhia was not found
till 04/07/2017.
9. Plaintiff has filed Ration Card copy at Exhibit-8 in which
name of Hiren is shown. She has filed a copy of license issued under
Maharashtra Shops And Establishment Act 1948 in the name of
K.R.Dedhia. The name of the establishment is Hiren Kumar and
Tailores. Plaintiff has produced on record a copy of the marriage
invitation card. Plaintiff has further produced copy of her Aadhar Card
at Exhibit-10 and PAN Card at Exhibit-11. Both the documents are in
her name. Plaintiff has produced on record a copy of the marriage
certificate at Exhibit-12 showing the name of Hiren and present
Plaintiff. Plaintiff has produced on record the electricity bill in her name
at Exhibit-13. Plaintiff has further produced the Aadhar Card copies of
her children at Exhibits - 14 and 15 respectively. All these documents
read with the oral evidence of the Plaintiff are sufficient to show that
Plaintiff is legally wedded wife of missing Hiren and she got two
children out of the said marriage.
10. Plaintiff has led her oral evidence at Exhibit-5. She is cross
examined by the Lrd. Advocate for Defendant no.2. She has stated in
the cross examination that she did not file any application to Defendant
No.2 for issuing death certificate. However, it will not affect the merits
as mandatory injunction is consequential relief. If main relief of
declaration is granted, then the consequential relief also can be granted.
it appears that the fact that the husband of Plaintiff that is Hiren went
missing 21/05/2010 is not disputed in cross examination.
11. The Writ of Summons of the suit was published in the
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Newspapers. Nobody objected the suit of Plaintiff in response to that
summons.
12. In view of all above discussion, I have come to the
conclusion that the Plaintiff has proved that her husband went missing
since 21/05/2010 and his whereabouts are not known since then. He
has not been heard of for last more than seven years. Hence, Plaintiff is
entitled to the relief of declaration and consequential relief of
mandatory injunction. Hence, I answer points No. 1 to 3 in the
affirmative and proceed to pass the following order.
O R D E R
1. Suit No. 1809 of 2018 is decreed.
2. It is hereby declared that the Husband of Plaintiff
i.e. Hiren Karmashi Dedhia is Civil Dead.
3. Defendants are directed to register the death of
Hiren Karmashi Dedhiya and issue his death certificate
accordingly to plaintiff.
4. Considering the relief granted, parties are
directed to bear their own costs.
5. Decree be drawn accordingly.
6. Suit No. 1809 of 2018 is disposed of accordingly.
(VIDYADHAR B. KAKATKAR)
Judge,
City Civil Court,
Date:24.01.2022 Gr.Mumbai.
Dictated on: 24.01.2022
Typed on : 24.01.2022
Signed on : 24.01.2022
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
25.01.2022 AT 2.30 P.M. MRS. SUPRIYA S. PAWAR
Name of the Judge (with Court Room
no.)
HHJ SHRI VIDYADHAR B.
KAKATKAR (C.R. No.09)
Date of Pronouncement of
Judgment/Order
25.01.2022
Judgment/Order signed by P.O. on 24.01.2022
Judgment/Order uploaded on 25.01.2022
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