Final Order 1

Order Details: Copy of Judgment
Pdf Text: 1
MHCC010050482020
Lodged on : 07.11.2020
Registered on : 09.12.2020
Decided on : 19.08.2023
Duration : 02Y 09M 12D
EXHIBIT-11
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
SUIT NO. 1367 OF 2020
MRS.SHALINI GANGARAM KAMBLE ]
Residing at Bhimshakti Chawl, ]
Behind Durgamata Mandir, ]
Plot No.2, Indira Nagar, Limboni ]
Baug, Govandi, Mumbai- 400 043. ]
MR. DEEPAK GANGARAM KAMBLE ]
Residing at Bhimshakti Chawl, ]
Behind Durgamata Mandir, ]
Plot No.2, Indira Nagar, Limboni ]
Baug, Govandi, Mumbai- 400 043. ].. Plaintiffs.
V/s.
1. THE ADDITIONAL MUNICIPAL ]
COMMISSIONER, Municipal ]
Corporation of Greater Mumbai, ]
5, Mahapalika Marg, Dhobi Talao, ]
Chhatrapati Shivaji Terminus Area, ]
Fort, Mumbai, Maharashtra-400 001. ]
2. THE STATE OF MAHARASHTRA ]
Through the Senior Police Inspector, ]
Office-in-charge, Mata Ramabai ]
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Ambedkar Marg Police Station, ]
Mumbai, Near Haji House, ]
Chhatrapati Shivaji Terminus Area, ]
Fort, Mumbai, Maharashtra-400 001. ]..Defendants.
Advocate Mr. Santosh Bhosale for the plaintiffs.
Advocate Mrs. Chandramore for BMC/defendant No.1.
Advocate Mr. Amit Kapse for State/defendant Nos.2.
CORAM : HIS HONOUR JUDGE
SHRI VAIBHAV V. PATIL
(C.R.No.09).
DATE : 19ST AUGUST 2023.
JUDGMENT
Present suit is instituted for the relief of death declaration
that Mr. Gangaram Tolu Kamble is presumed to be Civil dead as he has
not been heard of for more than 7 years and for giving directions to the
defendants for issuance of death certificate.
2. It is the case of plaintiffs that Mr. Gangaram Tolu Kamble is
husband of plaintiff No.1 and father of plaintiff No.2. Mr. Gangaram
Tolu Kamble was working as Labour in “A” Department of Municipal
Corporation of Greater Mumbai. The office of husband of plaintiff No.1
had informed her in the month of June 1983 that her husband was not
coming to the job and absent from 15 days. The plaintiff No.1 enquired
her husband’s office and relatives about whereabout of her husband,
but plaintiff could not find him. Mr. Gangaram Tolu Kamble was missing
from BMC on duty since 27.06.1983 and plaintiffs never heard about
him since then and he is not traceable till today.
3. It is further case of the plaintiffs that a missing complaint of
Mr. Gangaram Tolu Kamble was lodged with Mata Ramabai Ambedkar
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Marg Police Station vide D.E.M. No.60/83 dated 27.06.1983.
Thereafter, the plaintiff No.1 had given an application dated 29.06.1992
regarding issuing missing certificate to defendant No.2. The period
more than seven years elapsed from the date of disappearance of the
husband of plaintiff No.1 and his whereabouts are not yet known to the
plaintiffs. The plaintiff No.1 had made an application in February 2008
to the Inspector of Police, Mata Ramabai Ambedkar Marg Police Station,
Mumbai for the Missing Certificate of Mr. Gangaram Tolu Kamble. The
police investigated the matter regarding missing of Mr. Gangaram Tolu
Kamble and filed untraceable report dated 04.03.2008 wherein stated
that Mr. Gangaram Tolu Kamble is missing since 27.06.1983. Till
today, he is not found and is not traced. The cause of action has arisen
in Mumbai. Therefore, this Court has jurisdiction to entertain, try and
dispose of this Suit. Hence, the plaintiff has prayed for decree of the
suit.
4. The defendants have not filed their written statement.
Hence, suit is proceeded without written statement of the defendants.
5. I have heard learned advocate for the plaintiff and the
learned advocate for defendant No.1/BMC and the learned advocate for
defendant No.2/State.
6. Considering the plaint, documents produced on record and
oral evidence of the Plaintiff and submissions of both learned advocates,
following points arise for my determination and I have recorded my
findings to each of them for the reasons stated below.
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Sr.
No.
POINTS FINDINGS
1 Whether the plaintiffs are entitled to a decree
for declaration that Mr. Gangaram Tolu Kamble
is presumed to be dead as per Section 108 of
the Indian Evidence Act 1972 ?
In the
Affirmative
2 Whether plaintiffs prove that they are entitled
for a Death Certificate in the name of
Mr. Gangaram Tolu Kamble ?
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, they are
discussed together to avoid repetition.
8. The plaintiff No.1 has filed her Affidavit in Examination-in-
Chief at Exhibit-5 and deposed on oath and she has reiterated all the
contentions in her plaint in the Affidavit of Evidence. She was cross-
examined by both the advocates of defendants. In cross examination she
has deposed that her husband is missing since last 40 years. She lodged
missing complaint with police station. She has filed present suit for
getting monitory relief of service of her husband. She had not made
application to BMC for getting death certificate of her husband. The
plaintiff No.1 has further deposed that she made several efforts to find
her husband. On 25.10.2019, the police issued certificate to her
regarding missing of her husband. She had not issued notice under
section 80 of C.P.C. to the State before filing of the suit.
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9. In support of the suit claim, the plaintiffs have produced on
record list of documents vide Exh.6. The plaintiffs have produced on
record original copy of the Application dated 17.10.1988 to Supervisor,
A North Ward, BMC, Fort, Mumbai (Exh.7). The plaintiffs have
produced on record xerox copy of the Application dated 02.09.1994
(Exh.8), original copy of the Certificate issued on dated 14.11.1994 by
the Senior Police Inspector, Mata Ramabai Ambedkar Marg Police
Station, Mumbai (Exh.9). It shows that the plaintiff No.1 has filed
complaint to Mata Ramabai Ambedkar Marg Police Station regarding
missing of her husband vide No.60/83 dated 27.06.1983. The learned
advocate for the plaintiffs has filed evidence closed pursis (Exh.10).
10. The learned advocate for defendants submitted that the suit
is barred by law of limitation. It is further submitted that the husband of
the plaintiff No.1 went missing since 27.06.1983. Therefore, she ought
to have instituted the suit within three years from the date of cause of
action, to which she failed. Hence, suit is barred by law of limitation. In
reply, the learned advocate for the plaintiffs submitted that the plaintiffs
did not hear anything about Mr. Gangaram Tolu Kamble since
27.06.1983 and the cause of action for institution of the suit is
recurring one and until the plaintiffs realized that Mr. Gangaram Tolu
Kamble cannot be traced, they cannot be compelled to institute the suit
for declaring him dead. Therefore, the suit is within limitation.
11. Here reference needs to be made to section 108 of the
Indian Evidence Act which runs as under;
Section 108: Burden of proving that person is alive
who has not been heard of for seven years - Provided
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that 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 person who affirms it.
12. In the present case, it is evident that the husband of the
plaintiff No.1 went missing since 27.06.1983. The plaintiff No.1 has
deposed on oath that she took all the efforts to find him and also lodged
missing complaint with police, but police also could not trace him.
Despite of their efforts, they could not find the missing person. Thus, it
is proved from the evidence produced on record by the plaintiff No.1
that her husband was missing since 27.06.1983 and despite all the
efforts to find him, he could not be found. Therefore, presumption
under section 108 of the Indian Evidence Act comes into play. Section
108 of the Indian Evidence Act enables the Court under the
circumstances stated therein to draw the statutory presumption that a
man is not alive unless the contrary is proved by the opposite party. In
the present case, nobody has come forward to state that the missing
person is alive. Even the defendants have not raised contention that the
missing person is alive. Therefore, in such circumstances, presumption
under section 108 of the Indian Evidence Act can be raised in this case.
13. In view of above documents and the oral evidence,
plaintiffs have proved that Mr. Gangaram Tolu Kamble went missing
since 27.06.1983. The defendants have not disputed the said fact that
he is still missing and his whereabouts are not traced.
14. So far as the contention of the learned advocate for the
defendants regarding the bar of limitation is concerned, it is pertinent
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to note that the cause of action for filing the present suit arose after
lapse of seven years from the date of missing person i.e. from
27.06.1983. As per contention of the learned advocate for the
defendants, the plaintiffs have not filed suit within limitation. However,
cause of action for filing the present suit is recurring one and there is
continuous cause of action and therefore, it cannot be said the suit is
barred by law of limitation. Therefore, submission made by the learned
advocate for the defendants in this regard cannot be accepted. Thus, it
is crystal clear that the suit is very well within limitation.
15. In view of all above discussion, I have come to the
conclusion that Mr. Gangaram Tolu Kamble is found to be missing since
27.06.1983 i.e. for more than period of seven years. As stated above,
the legal presumption is attracted under section 108 of the Evidence Act
that he is dead. I therefore, hold that the plaintiff is entitled for
declaration to that effect.
16. The State is under statutory obligation to maintain the
record of birth and death of citizens. Therefore, in view of above
discussion, the plaintiff is entitled for death certificate of Mr. Gangaram
Tolu Kamble to be issued by the defendant No.1.
17. In the circumstances above, I have come to the conclusion
that plaintiffs are entitled to the declaration as prayed for. Accordingly,
I answer point Nos. 1 and 2 in the affirmative and in answer to point
No. 3, I proceed to pass following order.
ORDER
1. The suit is hereby decreed.
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2. It is hereby declared that the missing person
Mr. Gangaram Tolu Kamble is not being heard of for
more than last seven years and he is Civil Dead.
3. The defendants are directed to register the death
of Mr. Gangaram Tolu Kamble and issue death
certificate accordingly.
4. No order as to costs of the suit.
5. Decree be drawn up accordingly.
6. The original documents, if any be returned to the
plaintiffs after the appeal period is over.
7. The suit stands disposed of accordingly.
(VAIBHAV V. PATIL)
Judge,
City Civil Court,
Date: 19.08.2023 Gr.Mumbai.
Dictated on : 19.08.2023
Typed on : 19.08.2023
Signed on : 22.08.2023
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
22/08/2023 At 05.00 P.M. MRS. SUPRIYA S.PAWAR
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (With Court Room
Number)
HHJ MR. VAIBHAV V. PATIL
(C.R.NO.09)
Date of pronouncement of Judgment/
Order
19/08/2023
Judgment/Order signed by P.O. on 22/08/2023
Judgment/Order uploaded on 22/08/2023
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