Final Order 1

Order Details: Copy of Judgment
Pdf Text: 1 Judgment in Suit No. 21402019
MHCC010055532018
Presented on : 24042018
Registered on : 26072019
Decided on : 07012023
Duration : Y3 M5D12
Exhibit : 18
IN THE BOMBAY CITY CIVIL COURT AT MUMBAI
LONG CAUSE SUIT NO. 2140 of 2019
Mr. Eknath Dattatray Jadhav ]
Age about 57 years, Indian Inhabitant, ]
Room No.702, Prasad Co. Housing ` ]
Janta Arket, Subhash Road, Bhandup ]
Mumbai 400 078. ]....Plaintiff.
VERSUS
1) State of Maharashtra ]
Through Senior Inspector of Police ]
Bhandup Police Station ]
Maruti Mandir Marg, LBS Marg, ]
Bhandup West, Mumbai400 078 ]
2) Municipal Corporation of Gr. Mumbai ]
SWard Municipal Office ]
Room No.03, 2nd Floor, ]
LBS Marg, Bhandup West ]
Near Mangatram Petrol Pump ]
Mumbai 400 078. ] .. Defendants.
Appearances:
Ld Advocate Pooja Deshmukh for plaintiff.
Ld Advocate Khatib for Defendant No.1.
Ld Advocate Chandramore for Defendant No. 2/MCGM.
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2 Judgment in Suit No. 21402019
CORAM : SHRI. K.P. KSHIRSAGAR
JUDGE, (C.R.NO.08)
DATE : 07th JANUARY, 2023.
JUDGMENT
This is a suit for declaration that Mr. Dattatray Rambhau
Jadhav is dead.
Plaintiff's case in brief is as under:
2) Mr. Dattatray Rambhau Jadhav was father of plaintiff.
Plaintiff is the only son of Mr. Dattatray Rambhau Jadhav. Mr. Dattatray
Jadhav was residing at Bhandup. Father of the plaintiff Mr. Dattatray
Rambhau Jadhav went missing from his home since 08.04.2004.
Therefore, plaintiff had lodged missing complainant in Bhandup Police
Station. In spite of the plaintiff's efforts and efforts of the police father
of plaintiff Mr. Dattatray Rambhau Jadhav was not found. Since
08.04.2004, Mr. Dattatray Rambhau Jadhav is not traceable and he had
not been heard for more than 14 years. Therefore, plaintiff prayed for
declaration of death of his father Mr. Dattatray Rambhau Jadhav.
3) Defendant No.2 failed to file its written statement,
therefore, suit was proceeded without written statement of defendant
no.2. Suit was directed to proceed exparte against the defendant no.1.
4) From the pleading of the plaintiff following points arise for
determination and Court has recorded its decision thereon for the
reasons stated thereunder:
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3 Judgment in Suit No. 21402019
SR.NO. ISSUES DECISION
1) Whether plaintiff proves that, his
father Mr. Dattatray Rambhau Jadhav
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?
In Affirmative.
2) Whether the plaintiff is entitled for the
relief of declaration as prayed?
In Affirmative.
3) What Order and decree? As per final order.
REASONS
5) In order to prove his claim, plaintiff examined himself as
P.W.1 by filling his affidavit in lieu of examinationinchief vide Exhibit
7. Plaintiff also relied upon various documents like Identity Card issued
by Election Commission of Mr. Dattatray Rambhau Jadhav at Exh.9,
Original Certificate about missing complainant issued by Bhandup
Police Station at Exh.10, Original letter of Bhandup Police Sation
informing that father of plaintiff could not be traced at Exh.11 and 12,
Office copies of notice alongwith postal receipt at Exh.13 (Colly) and
Exh.14 (Colly), Newspaper publication at Exh.15 (Colly.) and
Exh.16(Colly.) etc.
6) On the other hand, defendants did not adduce any oral or
documentary evidence.
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4 Judgment in Suit No. 21402019
7) Heard arguments advanced by Ld. Advocate for plaintiff
and Ld. Advocate for defendant no.1 and Ld. Advocate for defendant
no.2. Court has gone through the written notes of arguments of
plaintiff.
As to point no. 1:
8) In respect of fact involved in this point, Mr. Eknath
Dattatray Jadhav P.W.1 i.e. plaintiff vide his affidavit in lieu of
examination in chief Exhibit 7 deposed in accordance with his claim.
P.W.1 categorically deposed that his father Mr. Dattatray Rambhau
Jadhav went missing since 08.04.2004 from his house at Bhandup West
and in spite of efforts he was not found. P.W.1 deposed that he lodged
missing complaint at Bhandup police station and in spite of efforts his
father was not traced. The documents produced and proved by the
plaintiff corroborates testimony of plaintiff. The testimony of plaintiff is
also not shaken in his cross examination.
9) It is also not the defence of the defendants that Mr.
Dattatray Rambhau Jadhav is alive and he was heard within last 7
years. As such there is no reason so as to disbelieve the testimony and
claim of the plaintiff that his father 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 defendant did not affirm
that Mr. Dattatray Rambhau Jadhav is alive, it will have to be presumed
that Mr. Dattatray Rambhau Jadhav is dead.
10) Considering the matter on record and above discussion,
Court hold that plaintiff proved by preponderance of probability the fact
that Mr. Dattatray Rambhau Jadhav has not been heard for last 7 years
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5 Judgment in Suit No. 21402019
or more by those who would naturally have heard of him, if he had
been alive and therefore he is presumed to be dead. Therefore, point
no. 1 is answered in Affirmative.
As to point no. 2:
10) In view of affirmative decision as to point no. 1, Court hold
that the plaintiff is entitled for declaration of civil death of Mr.
Dattatray Rambhau Jadhav. Therefore, point no. 2 is answered in
affirmative.
As to point no. 3:
11) In view of the affirmative decision of the point no.1 and 2
suit deserves to be decreed with cost. Therefore, Court proceeds to pass
the following order:
ORDER
1) Suit is decreed with costs.
2) It is hereby declared that Mr. Dattatray Rambhau
Jadhav is dead.
3) Decree be drawn up accordingly.
(K.P.KSHIRSAGAR)
Judge
Date.: 07/01/2023 City Civil Court,
Gr. Mumbai
Dictated on : 07.01.2023
Typed on : 07.01.2023
Checked on : 09.01.2023
Corrected & signed on : 10.01.2023
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6 Judgment in Suit No. 21402019
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT.”
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
10.01.2023 at 02.58 p.m. Mr. Ashok S. Patil.
Name of the Judge (With Court room
no.)
SHRI K.P. Kshirsagar (Court Room
No.08)
Date of Pronouncement of
JUDGMENT
07.01.2023
JUDGMENT signed by P.O. on 10.01.2023
JUDGMENT uploaded on 10.01.2023
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