Final Order 2

Order Details: Copy of Judgment
Pdf Text: 1 Judgment in Suit No. 31512019
MHCC010048682019
Presented on : 30-04-2019
Registered on : 02-12-2019
Decided on : 12-09-2022
Duration : 3 yrs, 4 mths, 12 days
Exhibit : 15
IN THE BOMBAY CITY CIVIL COURT AT MUMBAI
LONG CAUSE SUIT NO. 3151 of 2019
Mrs. Sharadha Dhruv More ]
Age about 66 years, Indian Inhabitant, ]
Occupation: Housewife, residing at building]
No.02, room No.02, Matunga Labour camp ]
Dr. Ambedkar Road, Matunga (East) ]
Mumbai 400 019. ]....Plaintiff.
VERSUS
1) Brihan Mumbai Mahanagar Palika ]
Birth and death registration department ]
G North Ward, Municipal Department, ]
Dadar, Mumbai – 400 028 ] ..Defendant No.1.
2) The State of Maharshtra ]
Through Senior Police Inspector, ]
Shahu Nagar Police Station, ]
Missing Complaint Department, ]
G.A. Ward, Mumbai ] .. Defendant No.2.
Appearances:
Ld Advocate Jannat Yadav for plaintiff.
Ld Advocate Chandramore for Defendant No.1/MCGM.
Ld Advocate Kapse for Defendant No. 2.
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2 Judgment in Suit No. 31512019
CORAM : SHRI. K.P. KSHIRSAGAR
JUDGE, (C.R.NO.08)
DATE : 12th SEPTEMBER, 2022.
JUDGMENT
This is a suit for declaration that Mr. Dhruv Subrao More is
dead and for mandatory injunction directing defendant No.1 to issue
the death certificate of Mr. Dhruv Subrao More.
Plaintiff's case in brief is as under:
2) Mr. Dhruv Subrao More was husband of plaintiff. The
husband of plaintiff Mr. Dhruv Subrao More went missing from his
home since 24/5/2005. In spite of the efforts of plaintiff Mr. Dhruv
Subrao More was not found. Therefore, on 25/5/2005 brother of Mr.
Dhruv Subrao More lodged missing complaint in Shahu Nagar police
station. Since 24/5/2005 Mr. Dhruv Subrao More has not been heard
and till date no information is received about him. Therefore, plaintiff
prayed for declaration that her husband Mr. Dhruv Subrao More is dead
and for mandatory injunction directing to issue death certificate of Mr.
Dhruv Subrao More.
3) Defendant No.1 failed to file written statement. Therefore,
suit proceeded without written statement of the defendant No.1.
Defendant No.2 resisted the claim of plaintiff by filing its written
statement vide Exh.6. Defendant No.2 admitted the fact that missing
complaint was lodged with police station regarding Mr. Dhruv Subrao
More. It is the defence of defendant No.2 that thereafter defendant tried
to search the missing person Mr. Dhruv Subrao More but he was not
found. The suit is misconceived and not maintainable. Therefore,
defendant No.2 submitted that suit be dismissed.
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3 Judgment in Suit No. 31512019
4) From the pleading of the parties, court framed issued at
Exh.7. Court has reproduced those issues below alongwith its decision
thereon for the reasons stated thereunder:
SR.NO. ISSUES DECISION
1) Whether plaintiff proves that, her
husband Mr. Dhruv Subrao More 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?
Proved.
2) Whether the plaintiff is entitled for the
relief of declaration as prayed?
Yes.
3) Whether the plaintiff is entitled for
mandatory injunction as prayed?
No.
4) What Order and decree? As per final order.
REASONS
5) In order to prove her claim, plaintiff examined herself as
P.W.1 by filling her Affidavit in lieu of examinationinchief vide Exhibit
8. Plaintiff also relied upon various documents like photocopies of
Aadhar card Exh.10 Colly, certificate issued by PI of Crime Branch
Exh.10 Colly, certificate about missing person issued by PI of Shahu
Nagar police station Exh.11, public notice at Exh.12 Colly, office copies
of notice Exh.13 etc.
6) On the other hand, defendants did not adduce any oral or
documentary evidence.
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4 Judgment in Suit No. 31512019
7) Heard arguments advanced by Ld. Advocate for plaintiff
and Ld. Advocate for defendants.
As to point no. 1:
8) In respect of fact in this issue, Mrs. Shraddha Dhruv More
P.W.1 i.e. plaintiff vide her affidavit in lieu of examination in chief
Exhibit 8 deposed in accordance with her claim. P.W.1 categorically
deposed that her husband Mr. Dhruv Subrao More went missing since
24/5/2005 from her home at Mahim and in spite of efforts he was not
found. P.W.1 deposed that Mr. Prakash More brother of Mr. Dhruv
Subrao More lodged missing complaint at Shahu Nagar police station
and inspite of same no information was received in respect of Mr. Dhruv
Subrao More. The documents produced and proved by plaintiff
corroborates the testimony of plaintiff. The testimony of plaintiff is not
shaken in her cross examination. It is also not the defence of the
defendants that Mr. Dhruv Subrao More is alive and he was seen or
heard within last 7 years. As such there is no reason so as to disbelieve
the testimony of the plaintiff that her husband 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. Dhruv Subrao More is alive, it will have to be presumed
as per Section 108 of the Indian Evidence Act that Mr. Dhruv Subrao
More is dead.
9) Considering the matter on record and above discussion, the
Court held that plaintiff proved by preponderance of probability the fact
that Mr. Dhruv Subrao More has not been heard for last 7 years or more
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5 Judgment in Suit No. 31512019
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 point no. 2:
10) In view of affirmative finding as to point no. 1, Court held
that the plaintiff is entitled for declaration of civil death of Mr. Dhruv
Subrao More. Therefore, point no. 2 is answered in Affirmative.
As to point no. 3:
11) Plaintiff has prayed for the relief of mandatory injunction
directing the defendant No.1 to issue death certificate of Mr. Dhruv
Subrao More. However, presumption under Section 108 of the Indian
Evidence Act is about death and there is no presumption as to the time
or date of death of the person. There is no evidence on record about
date of death of husband of plaintiff. Moreover, as per the provisions of
the Registration of Births and Deaths Act 1969, special
procedure/remedy is provided for registration of delayed births and
deaths. Therefore, in view of the provisions of the Registration of Births
and Deaths Act 1969, this Court finds that there is implied bar of
jurisdiction of the Civil Court for directing the defendant No.1 to
register the delayed death of Mr. Dhruv Subrao More and to issue death
certificate.
12) Considering the matter on record and above discussion, this
Court held that the plaintiff is not entitled for the relief of mandatory
injunction, as prayed. Therefore, point no. 3 is answered in negative.
As to point no. 4
13) In view of the affirmative decision as to issue nos. 1 and 2
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6 Judgment in Suit No. 31512019
and negative decision as to issue no.3, the suit deserves to be partly
decreed with proportionate cost. Therefore, Court proceeds to pass the
following order :
ORDER
1) Suit is partly decreed with proportionate costs.
2) It is hereby declared that Mr. Dhruv Subrao More is
dead.
3) Decree be drawn up accordingly.
(K.P.KSHIRSAGAR)
Judge
Dt.: 12/9/2022 City Civil Court,
Gr. Mumbai
Dictated on : 12/9/2022
Typed on :12/9/2022.
Checked on: 13/9/2022.
Corrected & Signed on : 13/9/2022.
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7 Judgment in Suit No. 31512019
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER.”
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
14/9/2022. 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
12/9/2022.
JUDGMENT/ORDER signed by P.O.
on
13/9/2022.
JUDGMENT/ORDER uploaded on 14/9/2022.
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