Final Order 1

Order Details: Copy of Judgment
Pdf Text: SUIT NO.3100-2019 1 Judgment
MHCC010058562019
Presented on : 13-06-2019
Registered on : 25-11-2019
Decided on : 06-05-2025
Duration : 05 yr, 10 mths, 23 days
IN THE BOMBAY CITY CIVIL COURT AT MUMBAI
L.C. SUIT NO. 3100 of 2019
Exhibit No.:14
1. Nirmala Pundalik Sawant
(Deleted since deceased)
2. Vilas Pundalik Sawant ]
Age : 50 years, Occ. : Service, ]
R/at : 1/5, Shiv Prerna Rahivashi Sangh, ]
S.N. Dube Road, Dahisar (East), ]
Mumbai-400 068. ]
3. Sandhya Santosh Sawant ]
Age : 50, Occ. : Naturopathy Doctor, ]
R/at : Flat No. 102, ‘B’ Wing, ]
Vinay CHSL, Baji Prabhu Deshpande ]
Road, Old Police Lane, Mumbai - 56 ]..Plaintiffs
Versus
1. Pundalik Jayram Sawant ]
(Deleted as per order dated 25.04.2024) ]
2. The State of Maharashtra, ]
(Through Kalachowki Police Station) ]
3. The Brihan Mumbai Municipal Corporation ]
Municipal Head Office, Annexe Building, ]
Opp. Chatrapati Shivaji Maharaj Terminus, ]
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Mahapalika Marg, No.1, Fort, ]
Mumbai-400 001. ]...Defendants
Appearances:-
Ld. Adv. Lalitprabha Pillay for Plaintiff.
Ld. Adv. Amit Kapse for Defendant No.2/State.
Ld. Adv. Apurva Dalal for Defendant No.3/BMC.
CORAM : DR. S.D. TAWSHIKAR
JUDGE, (C.R.NO.08)
Heard on : 29/04/2025.
Decided on : 06/05/2025.
JUDGMENT
(Dictated and pronounced in open court)
1. This is a suit for declaration of civil death of missing person
namely Shri. Pundalik Jayram Sawant (herein after referred as “a
missing person”) and for getting his death certificate.
Plaintiffs case, in nutshell, is as under :-
2. Plaintiff No.1 is the mother of plaintiff Nos.2 and 3. Shri.
Pandalik Jayram Sawant was husband of plaintiff No.1 and father of
plaintiff Nos.2 and 3. He was made a party as a defendant No.1 only
for the sake of service of writ of summons. Thereafter, plaintiffs want to
delete the name of defendant No.1 who is missing. Therefore, the
name of defendant No.1 is deleted as per order in Ch/s No.857/2024
dated 25.04.2024.
3. Plaintiffs claim that Shri. Pundalik is missing since 22.10.1976.
Plaintiffs and their family members tried to search Shri. Pundalik in all
possible places, however they could not search him out. Therefore,
plaintiff No.1 rushed to the Kalachowki Police Station and filed a
missing complaint bearing S.D.E. No.30/76 on 07.11.1976. The
plaintiffs contend that despite all possible efforts, till date Shri.
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SUIT NO.3100-2019 3 Judgment
Pundalik is not being traced out. Plaintiffs further contend that despite
lapse of more than 42 years, even police also could not trace out Shri.
Pundalik. Hence, the present suit.
Defendant’s case -
4. Defendants were duly served. Defendant No.3/BMC though
appeared, failed to file written statement. Defendant No.2 filed written
statement and admitted the fact of lodging missing complaint with
Kalachowki Police Station on 17.11.1976 bearing S.D.E. No.30/76.
Defendant No.2 further contends that plaintiffs failed to serve notice
under Sec.80 of Code of Civil Procedure (C.P.C.). The defendant No.2
also contends that the suit is misconceived, bad in law. Suit is filed
beyond the period of limitation and same is not maintainable.
Issues -
5. In view of rival pleadings, my learned Predecessor framed
issues at Exh.07. The issues are reproduced herein below along with
the findings and reasons thereon :-
Sr.No. ISSUES FINDINGS
1. Whether plaintiffs prove that Shri. Pundalik
Sawant is missing from 22.10.1976 ?
In
Affirmative
2. Whether plaintiffs prove that Shri. Pundalik
Sawant was not traceable in spite of all
efforts ?
In
Affirmative
3. Whether plaintiffs prove that Shri. Pundalik
Sawant is not heard of by the the people who
would have heard of him in natural course
for more than 7 years ?
In
Affirmative
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4. Whether plaintiffs are entitled to reliefs
claimed ?
Partly in
Affirmative
5. What order ? Suit is partly
decreed.
REASONS
AS TO ISSUE NO.1 TO 5 :-
6. Plaintiffs, in order to prove their contentions examined plaintiff
No.3 (PW-1) by filing her affidavit of examination in chief at Exh.08.
Plaintiffs relied upon following documents :-
Sr. No. Exh. Particulars
1. Exh.10 Original letter dated 11.05.1977 of the employer of
the father of the plaintiff No.1 to Kalachowki police
station.
2. Exh.11 Photostat letter dated 26.06.1977 of Kalachowki
police station to employer of the father of the plaintiff
No.3.
3. Exh.12 Certified copy of order dated 26.08.2013 issued by
the Metropolitan Magistrate, 26th Court, Borivali,
Mumbai.
7. From deposition of the PW-1 and the documents tendered on
record, it can be seen that there is no dispute about the relationship of
missing person with plaintiffs. It further appears that plaintiffs claim
that Shri. Pundalik Sawant is missing since 22.10.1976. The complaint
of missing person with Kalachowki Police Station came to be registered
on 07.11.1976.
8. PW-1 has been cross-examined by the defendant Nos.2/State
and 3/BMC. She deposes that she had issued notice to defendants
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before filing of the suit. However no such notice is placed on record. As
the defendant No. 3 BMC has not filed Written Statement and has not
raised issue of non compliance of pre suit notice, such objection cannot
be entertained at this stage.
9. Thee is no fixed period prescribed fir filing suit for declaration
of civil death. Rather the minimum time gap of seven years is sine qua
non for seeking such declaration under section 108 of Evidence Act.
There seems no upper limitation for filing such suit. Hence delay in
filing suit cannot be ground to refuse to entertain the suit.
10. In the cross-examination, PW-1 is found consistent on her stand
that despite rigorous search, plaintiffs and their family members have
not heard of a missing person since 22.10.1976. Even the police failed
to trace him out.
11. Plaintiffs have also placed on record the copy of advertisement
about missing person in the two local newspaper, one in English
“Business Standard” and another in Marathi “Vrittamanas” daily
newspaper. Despite advertisement, nobody has turned up to this court
to give any information about missing person.
12. Sec.108 of Indian Evidence Act provides that, if a person had
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 shifts on the person who affirms it. Thus, if a person is not heard
of by near and dear one’s for more than 07 years, then a presumption
of his death can be drawn.
13. In view of the oral as well as documentary evidence adduced
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on record, it is clear that the missing person is not being seen or heard
of by anyone in last more than 07 years. There is no contrary claim
raised by anyone. Therefore, I find no reason to disbelieve the claim of
the plaintiffs. Hence, I hold that plaintiffs succeed to prove issue No.1
to 3 and therefore, they are entitled for declaration about civil death of
a missing person. Hence, I answered issue No.1 to 3 in affirmative.
AS TO ISSUE NO.4 AND 5 :-
14. Plaintiffs have sought direction against defendant/BMC to issue
death certificate of Shri. Pundalik Jayram Sawant. However, as there is
no fixed date and place of death of missing person, no direction can be
given to the defendant/BMC to issue death certificate of particular
date. Hence, said prayer needs to be declined. Hence, the suit deserves
to be partly decreed.
15. In view of the findings of issue Nos.1 to 4, suit deserves to be
partly decreed. In answer to issue No. 5, I proceed to pass following
order-
ORDER
1) Suit is partly decreed.
2) It is hereby declared that Shri. Pundalik Jayram Sawant, R/o. 706,
Om Sumit C.H.S. Ltd., Ganesh Galli, Lalbaug, Mumbai is dead.
3) Decree be drawn up accordingly.
Date : 06/05/2025.
(Dr. S.D. Tawshikar)
Judge, City Civil Court,
Gr. Mumbai (C.R.08).
Dictated on : 06-05-2025
Transcribed on : 07-05-2025
Corrected on : 07-05-2025
Signed on : 07-05-2025
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER.”
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
13/05/2025 12.29 p.m. Mrs. Shravanti Karre
Name of the Judge (With Court room
no.)
Dr. S.D. Tawshikar (Court Room
No.08)
Date of Pronouncement of
JUDGMENT/ORDER
06/05/2025
JUDGMENT/ORDER signed by P.O.
on
07/05/2025
JUDGMENT/ORDER uploaded on 13/05/2025
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