Final Order 1

Order Details: Copy of Judgment
Pdf Text: 1
Lodged on : 04.05.2019
Registered on : 21.06.2019
Decided on : 25.01.2023
Duration : 03Y 08M 21D
EXHIBIT-14
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
S. C. CIVIL SUIT NO. 1544 OF 2019
( CNR No.MH-CC-01-004946-2019)
SMT. ASHWINI SHRIRAM LIMAYE ]
Age 54 Years, Indian Inhabitant, ]
Occupation: Service, ]
Residing at 101, Neelkanth ]
Apartment Society, Sant Tukaram ]
Marg, Mulund East, Mumbai-400081.].. Plaintiff.
V/s.
THE GOVERNMENT OF ]
MAHARASHTRA, Through Senior ]
Police Inspector, Navghar Police ]
Station, Mulund East, ]
Mumbai-400081. ]..Defendant.
Advocate Mr. Abhijeet A. Barve for the plaintiff.
Advocates Mr. Kapse and Mr. Kadam for State/defendant.
CORAM : HIS HONOUR JUDGE
SHRI SITARAM N. PATIL
(C.R.No.09).
DATE : 25th JANUARY 2023
JUDGMENT
The suit is instituted for the relief of death declaration of
Mr. Shriram Murlidhar Limaye.
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2. It is the case of plaintiff that she is a wife of Mr. Shriram
Murlidhar Limaye. He left the place on 12.01.2008 and thereafter, he
did not return back and his whereabouts are not known till date. The
plaintiff immediately contacted to his relatives and friends. However,
Mr. Shriram Murlidhar Limaye neither found in the place of his relatives
nor with his friends. Even after due and diligent search, Mr. Shriram
Murlidhar Limaye is not found. Therefore, on 12.02.2008, registered a
complaint of her missing husband at Navghar Police Station as well as
in the Adult Person Missing Register. Thereafter, the concerned police
station sent letter to the Department of Missing Person of Crime Branch
for publication of information of Adult Missing Person on Television
and copy addressed to Crime Branch.
3. It is further case of the plaintiff that the concerned police
station has issued the Certificate of missing person on 13.02.2009. The
concerned Missing Department of Crime Branch has registered case
bearing No.T.V.R.No.128/2008 dated 02.04.2008 and issued a detail
Certificate. The plaintiff had issued a mandatory legal notice throug her
advocate on 01.02.2019 under section 80 of Civil Procedure Code to the
defendant Police Station. In pursuance to the complaint, the police
authority of Navghar Police Station tried their level best to trace out
whereabouts of the missing father of the plaintiff Mr. Shriram Murlidhar
Limaye
4. It is the case of plaintiff that cause of action arose since
2015. The plaintiff wife of Mr. Shriram Murlidhar Limaye who is
missing and not heard for last 10 years and hence she had locus standi
to file present suit for declaration. The suit is within limitation.
Therefore, the plaintiff has prayed for declaration.
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5. Defendants did not file a written statement. Hence, suit
proceeded without written statement of the defendants.
6. I have heard learned advocate for the plaintiff and the
learned advocate for State/defendant No.1.
7. Considering the plaint, documents on record and oral
evidence of plaintiff and submissions of both 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 plaintiff has proved that Mr. Shriram
Murlidhar Limaye is missing and has not been
heard for more than 7 years?
In the
Affirmative
2 Whether plaintiff 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 :
8. As all three points are related with each other. Hence, they
are discussed at once to avoid repetition.
9. The plaintiff has filed her Affidavit of Evidence by way of
examination-in-chief at Exhibit-5 and deposed on oath and she has
reiterated all the contentions in her plaint in the Affidavit. She was
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cross-examination by the defendant. In the cross-examination she has
admitted that her husband was missing for the house since 12.01.2008.
After missing they searched near about and relatives, but he was not
found. She also deposed that she lodged police complaint for missing.
And the police issued Certificate on 13.01.2019 as her husband was not
found. She admitted that she has not issued notice under section 80 of
C.P.C.
10. In support of the suit claim, the plaintiff has produced on
record Indemnity Bond (Exh.7 colly.) in favour of the plaintiff. The
plaintiff has produced photocopy of Aadhar Card of the plaintiff
(Exh.7), photocopy of marriage certificate (Exh.8), photocopy of
complaint dated 02.04.2008 (Exh.9), Original Certificate issued by
Navghar Police Station dated 13.02.2009 (Exh.10). Original Certificate
issued by Department of missing persons Crime Branch dated
24.04.2015 (Exh.11) and Office copy of Legal Notice under section 80
of the C.P.C. (Exh.12). The learned advocate for the plaintiff has filed
evidence close pursis (Exh.13).
11. The learned advocate for defendant submitted that the suit
is barred by law of limitation. It is not maintainable. He further
submitted that the husband of the plaintiff went missing since 2008.
Therefore, she should have instituted the suit within three years from
the year 2008 and the suit filed in the year 2019. Therefore, it is not
within limitation. In reply, the learned advocate for the plaintiff
submitted that the plaintiff waited for last 14 years and meanwhile
search through Government machinery as well as her own with the help
of other relatives. The Court Summons is also published in newspaper.,
but her husband cannot be traced.
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12. The learned advocate for the plaintiff drawn my attentions
towards sections 107 and 108 of the Indian Evidence Act. It is further
submitted that burden of proving death of the father known to have
been alive within thirty years as mentioned in section 107 of the Indian
Act and period of seven years as mentioned in section 108 of the Indian
Evidence Act is minimum period. Therefore, the suit is within limitation.
The sections 107 and 108 of the Indian Evidence Act speak as under;
Section 107: Burden proving death of the father known
to have been alive within thirty years. When the
question is whether a man is alive or dead and it is
shown that he was alive within thirty years, the burden
of proving that he is dead is on the father who affirms
it.
Section 108: Burden of proving that the father is alive
who has not been heard of for seven years. 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 father who affirms it.
13. In the case of Smt. Narbada and Another V/s. Ram Dayal
reported in AIR 1968 Raj 48 wherein disclosed descriptions of sections
107 and 108 of the Evidence Act. Therefore, the said citation is
applicable.
14. In the case of Surat Rupchand Hingorani Vs Smt. Dayali
Khusaldas Mankani (since deceased) reported in Testamentary Petition
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No. 1027 of 2015. In the matter, before Hon’ble Lordship, the father
went missing in the year 1989 and the petition was filed in the year
2015 which came to be allowed. The said citation is applicable to the
fact of the present case.
15. It is clear that the plaintiff will institute the suit only when
the plaintiff feels that her husband cannot be traced out. She cannot be
compelled to institute such suit. Further-more, period of seven years as
mentioned in Sec. 108 of the Indian Evidence Act cannot be treated as
mandatory period, but it is minimum period which gives right to
institute the suit. However, the cause of action is recurring one.
Therefore, suit cannot be stated to be barred by law of limitation.
16. In view of all above discussion, I have come to the
conclusion that Mr. Shriram Murlidhar Limaye is found to be missing for
a period of more than 14 years. The legal presumption is attracted
under section 108 of the Evidence Act that his father is dead. I
therefore, hold that the plaintiff is entitled for declaration to that effect.
17. The State is under statutory obligation to maintain the
record of birth and death. Therefore, the suit filed against the State is
maintainable. It is proved that Mr. Shriram Murlidhar Limaye is proved
to be not heard of for more than seven years, I hold that the legal
presumption arises that he is dead.
18. In the circumstances above, I have come to the conclusion
that plaintiff is 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.
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ORDER
1. The suit is hereby decreed.
2. It is hereby declared that the husband of
plaintiff i.e. Mr. Shriram Murlidhar Limaye 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 accordingly.
5. The suit stands disposed of accordingly.
(SITARAM N. PATIL)
Judge,
City Civil Court,
Date: 25.01.2023 Gr.Mumbai.
Dictated on: 25.01.2023
Typed on : 25.01.2023
Signed on : 25.01.2023
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
30/01/2023 At 12.30 p.m. MRS. SUPRIYA S.PAWAR
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (With Court Room
Number)
HHJ MR. SITARAM N. PATIL
(C.R.NO.09)
Date of pronouncement of Judgment/
Order
25/01/2023
Judgment/Order signed by P.O. on 25/01/2023
Judgment/Order uploaded on 30/01/2023
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