Final Order 1

Order Details: Copy of Judgment
Pdf Text: 1
Lodged on : 30.04.2019
Registered on : 12.06.2019
Decided on : 18.11.2021
Duration : 02Y 06M 19D
EXHIBIT-
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
SHORT CAUSES SUIT NO. 1399 OF 2019
( CNR No.MH-CC-01-004894-2019)
1. SMT. HARSHA HARIDA GAJARIA ]
Aged 65 years, Occupation:Housewife]
2. MR. SHYAM HARIDAS GAJARIA ]
Aged 65 years, Occupation : Service ]
Both Indian Inhabitant, ]
Residing at 17, Krishna Kunj, ]
2nd Floor, Opp: Mahanagar Co.op. ]
Bank, R.B. Kadam Marg, Bhatwadi, ]
Ghatkopar (West), Mumbai-400084. ].. Plaintiff.
V/s.
1. STATE OF MAHARASHTRA ]
Through Chief Secretary, ]
Government of Maharashtra, ]
Mantralaya, Mumbai – 400 032. ]
2. SENIOR INSPECTOR OF POLICE ]
Ghatkopar Police Station, ]
Ghatkopar, Mumbai. ]..Defendants.
Advocate Mr. Sanjay Khale for the plaintiff.
Advocate Mr. Kapse for defendant Nos.1 and 2.
CORAM : HIS HONOUR JUDGE
SHRI VIDYADHAR B. KAKATKAR
(C.R.No.09).
DATE : 18th NOVEMBER, 2021
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JUDGMENT
The suit is instituted for the relief of declaration that Shri
Dinesh Haridas Gajaria is presumed to be Civil dead as he has not been
heard of by any person who would have naturally heard of him for
more than 7 years.
2. It is the case of plaintiff that plaintiff No. 1 is mother and
plaintiff No. 2 is younger brother of Dinesh. Dinesh has been missing
since 29/11/2011 from his house situated at 17, Krishna Kunj, 2nd floor,
opposite Mahanagar Cooperative Bank, R.B.Kadam Marg, Bhatwadi,
Ghatkopar (W), Mumbai – 400084. The plaintiffs are in possession of
all the relevant documents of Dinesh including PAN card, Aadhar card,
Election Identity Card, Bank Passbook etc.
3. It is the case of plaintiffs that Dinesh left his house on
29/11/2011 and since then he did not return. He was searched at all
the possible places by the plaintiffs and relatives. However, he was not
found. Therefore, his father Haridas lodged missing complaint with
Ghatkopar Police Station, Mumbai vide Missing Adult Person Register
No. 228 of 2011 dated 01/12/2011. Police searched Dinesh and also
published his information on the television. However police also could
not search him. Accordingly, police are issued certificate on
26/12/2011.
4. It is the case of plaintiffs that, in spite of diligent search,
Dinesh was not found. Accordingly, police have issued one more
certificate dated 10/12/2018 stating therein that Dinesh is not traceable
as per the police record. Plaintiffs have not heard of him for last more
than 7 years. Accordingly, plaintiffs issued a notice to defendants on
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18/02/2018 through their advocate under section 80 of the Code of
Civil Procedure. It was forwarded by defendant No. 1 to the Home
Department for further action. Therefore, the plaintiffs have prayed for
declaration.
5. Defendants did not file a written statement. Hence, suit
proceeded without written statement of the defendants.
6. Considering the plaint, documents on record and oral
evidence of plaintiff and submissions of learned advocates, 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 plaintiffs have proved that Dinesh
Haridas Gajaria is missing from the home
since 29/11/2011 and has not been heard
for more than 7 years?
In the
Affirmative
2 Whether Plaintiffs are entitled to the
declaration as prayed for?
In the
Affirmative
3 What Order and decree ? As per Final Order
R E A S O N S
AS TO POINT NOS.1 TO 3 :
7. As all three points are related with each other. Hence, they
are discussed at once to avoid repetition.
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8. Plaintiff No. 2 has deposed on oath and has proved all the
contentions in the plaint. He has proved all the documents filed by
plaintiffs on record. The death certificate of Haridas Dharmesh Gajaria
is filed on record at Exhibit-7 to show that the person who filed missing
complaint cannot appear before the court as he is dead. The letter
issued by Ghatkopar police station to the Senior Police Inspector of the
Centre for Missing Persons is at Exhibit-8. It shows that Dinesh Gajaria
was missing from 29/11/2011 and the missing report was filed on
01/12/2011 by Haridas Gajaria. Name of plaintiff No.2 is also
mentioned along with his mobile number on the said letter. The reason
is noted as Dinesh Gajaria went out of the home due to mental stress.
9. A certificate issued by The Senior Police Inspector of Centre
for Missing Persons is produced at Exhibit-9. It supports the case of
plaintiffs. The certificate was issued on 16/12/2011. Plaintiff No. 1
issued a letter to the Senior Police Inspector of Ghatkopar Police Station
at Exhibit-10. She requested for a certificate that Dinesh is missing and
could not be traced. Accordingly, certificate was issued to her. It is at
Exhibit-11. A copy of notice under section 80 of the Code of Civil
Procedure is produced at Exhibit-12. The matter was forwarded to the
police and concerned officer of the Secretariat by the home Department.
The letter is at Exhibit-13.
10. Learned advocate for plaintiffs has relied upon judgement
in the case of Swati Abhay Deshmukh Vs Abhay Purushottam Deshmukh
in Second Appeal No. 18 of 2016. In the matter before Hon’ble
Lordship, the judgement in the case of LIC of India Vs Anuradha
reported in AIR 2004 SC 2070 is relied upon. Accordingly, Hon’ble
Lordship was pleased to decree the suit for declaration of civil death.
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11. In view of above legal position, it is clear that a declaration
of civil death can be granted in view of section 107 and 108 of the
Indian Evidence Act and section 34 of the Specific Relief Act. Plaintiffs
in the present matter have proved to the satisfaction of the Court that
Dinesh Gajaria left home on 29/11/2011 and could not be traced till
date. The missing report was lodged on 01/12/2011. The certificates
issued by police are produced on record to show that attempt was made
by police to search for Dinesh Gajaria, but he could not be traced. The
cross examination does not disclose anything which will make the
plaintiffs dis-entitled for the declaration as prayed for. Plaintiffs have
published the notice in the newspaper. The copy of the newspaper is
also filed on record. It was published in one English and one Gujrathi
newspaper. There was no response to that notice.
12. In the circumstances above, I have come to the conclusion
that plaintiffs are entitled to the declaration as prayed for. Accordingly,
I answer points Nos. 1 and 2 in the affirmative and in answer to point
No. 3, I proceed to pass following order.
O R D E R
1. Suit is decreed.
2. It is hereby declared that son of plaintiff
No.1 i.e. a brother of plaintiff No.2 Dinesh
Haridas Gajaria is civil dead.
3. No order as to costs of the suit.
4. Decree be drawn accordingly.
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5. S.C. Suit No. 1399 of 2019 is disposed of
accordingly.
(VIDYADHAR B. KAKATKAR)
Judge,
City Civil Court,
Date:18.11.2021 Gr.Mumbai.
Dictated on: 18.11.2021
Typed on : 18.11.2021
Signed on : 24.11.2021
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
25.11.2021 AT 4.30 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
18.11.2021
Judgment/Order signed by P.O. on 24.11.2021
Judgment/Order uploaded on 25.11.2021
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