Final Order 1

Order Details: Copy of Decree
Pdf Text: 1
Lodged on : 19.04.2018
Registered on : 26.11.2018
Decided on : 17.09.2022
Duration : 04Y 04M 28D
EXHIBIT-15
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
S. C. CIVIL SUIT NO. 3052 OF 2018
( CNR No.MH-CC-01-005279-2018)
1. SHRI NITIN PRABHAKAR KHALE ]
Aged 31 years, Occupation: Nil, ]
Residing at Village Chembur ]
Road No.15, Room No.106, ]
Near Pavanputra Gymkhana, ]
Chembur, Mumbai 400 069. ]
2. SMT. SUNITA PRABHAKAR KHALE]
Residing at Village Chembur ]
Road No.15, Room No.106, ]
Near Pavanputra Gymkhana, ]
Chembur, Mumbai 400 069. ]
3. SMT. JAYAMALA PRABHAKAR ]
KHALE @ JAYAMALA R. BANGERA ]
Residing at Village Chembur ]
Road No.15, Room No.106, ]
Near Pavanputra Gymkhana, ]
Chembur, Mumbai 400 069. ].. PlaintiffS.
V/s.
1. STATE OF MAHARASHTRA ]
Through Senior Police Inspector, ]
Marine Lines Police Station, ]
Dinshaw Vaccha Road, ]
Behind Yashodhan Building, ]
Mumbai – 400 020. ]
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2. THE MUNICIPAL CORPORATION ]
OF GREATER MUMBAI, ]
“A”Ward, Sahid Bhagatsingh Marg, ]
Fort, Mumbai – 400 001. ]..Defendants.
Advocate Mr. Nikhil Mallelewar for the plaintiff.
Advocate Mr. Sachin Kadam for State/defendant No.1.
Advocate Mrs. Chandramore for BMC/defendant No.2.
CORAM : HIS HONOUR JUDGE
SHRI SITARAM N. PATIL
(C.R.No.09).
DATE : 17th SEPTEMBER 2022
JUDGMENT
The suit is instituted for the relief of declaration that
Mr.Prabhakar Narayan Khale 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 plaintiffs that plaintiff No.1 is the son of
Mr.Prabhakar Narayan Khale and plaintiff No.2 is the wife of
Mr.Prabhakar Narayan Khale. Mr.Prabhakar Narayan Khale was in the
service of Air India, Mumbai. On 26.04.2008, Mr.Prabhakar Narayan
Khale gone missing from Air India Building, Marine Lines, Mumbai-
400020 while he was in service with the Air India. Thereafter,
Mr.Prabhakar Narayan Khale was searched by the plaintiffs and looking
out him in Mumbai and other places. The plaintiffs were under
impression that Mr.Prabhakar Narayan Khale will return. The plaintiffs
made enquiry with all known friend and family members and waited for
Mr.Prabhakar Narayan Khale to return. However, as Mr.Prabhakar
Narayan Khale did not return or any information about his
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whereabouts, the plaintiffs filed a missing complaint with Marine Lines
Police Station on 10.05.2008 vide Complaint No.5/2008. The plaintiff
No.2 had finally applied on 18.06.2016 to defendant for the final
report/certificate in respect of missing complaint of Mr.Prabhakar
Narayan Khale. The defendant issued certificate on 11.07.2016 thereby
informing the plaintiffs that Mr.Prabhakar Narayan Khale is
permanently missing and whereabouts are not traceable.
3. It is further case of the plaintiffs that Mr.Prabhakar
Narayan Khale has been missing from near about last 10 years from
26.04.2008 till date and his whereabouts have not heard of by the
plaintiffs or the plaintiffs family. Mr.Prabhakar Narayan Khale was
terminated from his service by order dated 19.03.2013. The plaintiff
No.1 being his son and natural legal heirs wants to challenge the said
order on compassionate ground. The plaintiffs and their family
members have made all possible efforts to search Mr.Prabhakar
Narayan Khale at Mumbai and other places. Mr.Prabhakar Narayan
Khale survival or being alive is beyond any reasonable doubt. Thus,
inspite of efforts of the plaintiff whereabouts of Mr.Prabhakar Narayan
Khale are not known and he is missing from 26.04.2008.
4. It is the case of plaintiff that Notice under section 80 of the
Code of Civil Procedure may be dispensed as the plaintiffs are not
seeking any relief against the Government or Public Service. The cause
of action arose on 11.07.2016 at Marine Lines Police Station, Mumbai.
The present suit is within limitation. Mr.Prabhakar Narayan Khale
whereabouts have not been known to the plaintiffs. Therefore, the
plaintiffs have 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, learned
advocate for State/defendant No.1 and the learned advocate for
BMC/defendant No.2.
7. Considering the plaint, documents on record, I have framed
issues at Exhibit-8 and my findings to them are as stated below for the
following reasons.
Sr.
No.
POINTS FINDINGS
1 Whether plaintiffs have proved that
Mr.Prabhakar Narayan Khale is missing since
26.04.2008 and has not been heard for more
than 7 years?
In the
Affirmative
2 Whether Plaintiffs are entitled to the
declaration as prayed for?
Partly 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 plaintiffs have filed Examination in Chief of the
plaintiff No.1 at Exhibit-6 and deposed on oath and has proved all the
contentions in the plaint and was cross-examination by the defendants,
but it is only suggestion in the cross-examination.
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10. In support of the suit claim, the plaintiffs have produced on
record Receipt issued by the Senior Police Officer, Marine Drive Police
Station (Exh.9) and complaint (Exh.10) about missing of his father
Mr.Prabhakar Narayan Khale. The plaintiffs have also produced on
record Letter dated 01.06.2015 (Exh.11) issued by the Sr. Police
Inspector of Marine Drive Police Station to Sr. Police Officer to publish
the name of missing persons. The plaintiffs have also produced on
record Certificates dated 11.02.2019 and 30.03.2012 of Missing person
issued by Senior Police Inspector of Marine Drive (Exh.12 and Exh.13).
The learned advocate for the plaintiff has filed evidence close pursis
(Exh.14).
11. In view of the above evidence, it would be crystal clear that
Mr.Prabhakar Narayan Khale 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 the said person is dead. I therefore, hold that the
plaintiffs are entitled for declaration to that effect.
12. 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.Prabhakar Narayan Khale is proved to
be not heard of for more than seven years, I hold that the legal
presumption arises that he is dead.
13. 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 Mr.Prabhakar
Narayan Khale shall presume to be dead as he was
found unheard for a period more than seven years
and consequently, he is presumed to be dead until
contrary is proved.
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:17.09.2022 Gr.Mumbai.
Dictated on: 17.09.2022
Typed on : 17.09.2022
Signed on : 17.09.2022
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
17/09/2022 At 5.20 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
17.09.2022
Judgment/Order signed by P.O. on 17.09.2022
Judgment/Order uploaded on 17.09.2022
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