Final Order 2

Order Details: Copy of Judgment
Pdf Text: 1
MHCC010059202019
Presented on : 14.06.2019
Registered on : 04.07.2019
Decided on : 17.02.2024
Duration : 04 Y : 08 M : 03 D
EXHIBIT-35
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
SUIT NO. 1948 OF 2019
(C.N.R. NO. MHCC01-005920-2019)
Smt. Sunanda Rawaji Main, ]
Age 60 years, Occ. : House Wife ]
R/a. :Room No.07, Rawaji Patel Chawl, ]
Gaondevi Road, Kaju Pada, Opp. Pandey Dairy, ]
Poisar, Kandivali (E), Mumbai- 400 101 ] ...Deleted since
deceased.
1 (a) Pramod Rawaji Main, ]
Age : Adult, Occ. Service ]
1 (b) Amol Rawaji Main ]
Age : Adult, Occ. Service ]
Both are residing at : Room No.07, Rawaji Patel ]
Chawl, Gaondevi Road, Kaju Pada, Opp. Pandey ]
Dairy, Poisar, Kandivali (E), Mumbai- 400 101 ] ... Plaintiffs.
V/s.
1. The State of Maharashtra, ]
Through the Chief Secretary, Government of ]
Maharashtra, Mantralaya, Mumbai – 400 032 ]
2. The Brihanmumbai Municipal Corporation, ]
Mahapalika Marg, Mumbai – 400 001 ] ...Defendants.
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Advocates Mr. P. M. Mulky for the plaintiff.
Advocate Mr. Khatib for Defendant No.1/State.
Advocate Ms. Chandramore for Defendant No.2/BMC.
CORAM : HIS HONOUR JUDGE
SHRI VAIBHAV V. PATIL
(C.R.No.09).
DATE : 17th FEBRUARY 2024.
JUDGMENT
Present suit is instituted for the relief of death declaration that
Rawaji Ramchandra Main is presumed to be Civil dead as he has not
been heard of for more than 7 years.
2. It is the case of plaintiff that plaintiff is the wife of Rawaji
Ramchandra Main who went missing on 20.06.2002 from Mankhurd,
Mumbai. The plaintiff took search of her husband but she could not find
him. Hence she lodged missing complaint of her husband on
23.06.2002 with R. A. K. Marg Police Station, Mumbai and the police
registered said complaint and recorded missing report dated
23.06.2002. Thereafter, plaintiff, as well as police made every possible
efforts to trace Rawaji Ramchandra Main however, he could not be
found even-after due and diligent search. R. A. K. Marg Police Station
issued missing certificate on 10.07.2009.
3. It is further contention of the plaintiff that her husband’s
whereabouts are not known for last more than seven years. The cause
of action has arisen at Mumbai. Hence, this Court has jurisdiction to
entertain, try and dispose of this Suit. Hence, the plaintiff has sought
declaration that this Hon’ble Court be pleased to make an order of
presumption of death of Rawaji Ramchandra Main who is not heard of
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for more than seven years under section 108 of Indian Evidence Act,
1908.
4. Defendants has failed to filed their written statements.
Hence, suit came to be proceeded without written statements of
defendants.
5. In view of pleadings, following issues arises for my
determination and I have recorded my findings to each of them for the
reasons stated below.
Sr.
No.
ISSUES FINDINGS
1. Whether the plaintiff is entitled to a decree
for declaration that Rawaji Ramchandra
Main is presumed to be dead as per Sec. 108
of the Indian Evidence Act?
In the
Affirmative
2. Whether the plaintiff is entitled for a Death
Certificate of Rawaji Ramchandra Main to
be issued by B.M.C.?
In the
Affirmative
3. Whether the plaintiff is entitled for the relief
of declaration as prayed ?
In the
Affirmative
4. What Order and decree ? As per Final Order
R E A S O N S
AS TO ISSUE NOS.1 TO 3 :
6. As all the points are related with each other, they are
discussed together to avoid repetition.
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7. Plaintiff No.1 (a) Pramod Rawaji Main has filed affidavit of
evidence in lieu of Examination-in-Chief at Exhibit-5. He has deposed
on oath and he has reiterated all the contentions in the plaint in the
Affidavit of Evidence. He was cross-examined by the advocates of
defendant. In cross examination he has stated that on 20.06.2002 his
father went to the mill but he did not return back, hence they lodged
missing complaint with R. A. Kidwai Marg Police Station. He stated that
they had not issued notice to the State prior to institution of the suit.
8. In support of the suit claim, the plaintiff has produced on
record list of documents vide Exh.7. The plaintiff has produced on
record Identity Card No.ITD3150075 issued by Election Commission of
India, in the name of missing person (Exh.13), Identity Card No.47982
issued by E. S. I. Corporation in the name of missing person (Exh-14),
The Employees Provident Fund Slip bearing Account No.MH/140/7059
(Standard Industries Ltd.) issued in the name of missing person
(Exh.15), Salary Slip for the month of July 2000 issued in the name of
missing person (Exh.16), Identity Card No.56227 dated 14.07.1998
issued in the name of Missing Person, by Western Railway (Exh.17),
Monthly Railway Pass bearing No.025415 dated 13.12.2000 from
Elphinstone Road and Borivali issued in the name of missing person by
Western Railway (Exh.18), True copy of the letter
No.MH/BAN/Pen/Trf/Case No.22925/95 dated 07.04.2005 written by
Asstt. P. F. Commissioner, regarding the missing person (Exh.19), Office
copy of the letter dated 26.06.2005 written by the son of plaintiff,
Pramod Rawaji Main to the Sangameshwar police station stating that he
lost his brief-case at the Sangameshwar Bus Stop containing documents
such as missing certificate and other relevant documents (Exh.20),
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Letter dated 27.06.2005 written by Sangameshwar Police Station at
Antravali, to the son of plaintiff, Pramod Rawaji Main, stating that they
have not received any lost documents (Exh.21), true copy of the letter
No. MH/KOL/PENSION/05/377 dated 07.08.2005 written by the Asst.
P. F. Commissioner (Pension) SRO, Kolhapur, to the plaintiff regarding
the disbursement of pension to the plaintiff (Exh.22), Aadhar card
issued to the plaintiff (Exh.23), Aadani Electricity bill for the month of
March, 2019 issued in the name of plaintiff (Exh.24), Aadhar Card
issued in the name of plaintiff’s son Pramod Rawaji Main (Exh.25),
Saving Pass Book S. B. Account No.5360 issued in the name of Pramod
Rawaji Main by Bank of India Kasba (Sangameshwar) Branch (Exh.26),
Aadhar Card issued in the name of plaintiff’s son Amol Rawaji Main
(Exh.27), Saving Pass Book S. B. Account No.5356 issued in the name
of Amol Rawaji Mayin by Bank of India Kasba (Sangameshwar) Branch
(Exh.28), Office copy of the letter dated 01.07.2009 written by Pramod
R. Main to the Officer-in-charge, R.A. Kidwai Marg Police Station
(Exh.29), Certificate dated 10.07.2009 issued by R. A. Kidwai Marg
Police Station stating that till date Shri. Rawaji Ramchandra Main
could not be found/traced (Exh.30), Office Copy of the letter dated
April 8, 2019 written to The Brihanmumbai Municipal Corporation,
regarding the missing person by the plaintiff’s advocate (Exh.31), Office
copy of the letter dated April 8, 2019 written to the State of
Maharashtra regarding the missing person by the plaintiff’s advocate
(Exh.31).
9. The learned advocate for defendants submitted that the suit
is barred by law of limitation. It is further submitted that the husband of
the original plaintiff went missing since 20.06.2002. Therefore, she
ought to have instituted the suit within three years from the date of
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cause of action, to which she failed. Hence, suit is barred by law of
limitation. In reply, the learned advocate for the plaintiff submitted that
the plaintiff did not hear anything about her husband Rawaji
Ramchandra Main since 20.06.2002 and the cause of action for
institution of the suit is recurring one and until the plaintiff realized
that her husband Rawaji Ramchandra Main cannot be traced, she
cannot be compelled to institute the suit for declaring him dead.
Therefore, the suit is within limitation. I find substance in the argument
advanced on behalf of the plaintiff. The cause of action for filing the
present suit is recurring one and there is continuous cause of action and
therefore, it cannot be said that the suit is barred by law of limitation.
Therefore, submission made by the learned advocate for the defendant
in this regard cannot be accepted. Thus, it is crystal clear that the suit is
very well within limitation.
10. 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
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.
11. In the present case, it is evident that the husband of the
original plaintiff went missing since 20.06.2002. The plaintiff No.1(a)
has deposed on oath that he took all the efforts to find him and they
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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 that his father was missing since 20.06.2002 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 defendant has
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.
12. In view of above documents and the oral evidence, plaintiff
proved that Rawaji Ramchandra Main went missing since 20.06.2002.
The defendant has not disputed the said fact that he is still missing and
his whereabouts are not traced. As stated above, the legal presumption
is attracted under section 108 of the Evidence Act that he is civil dead. I
therefore, hold that the plaintiff is entitled for declaration to that effect.
13. 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 Rawaji
Ramchandra Main to be issued by the defendant No.2.
14. In the circumstances above, I have come to the conclusion
that plaintiff is entitled to the declaration as prayed for. Accordingly, I
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answer Issue Nos.1 to 3 in the affirmative and in answer to Issue No. 4,
I proceed to pass following order.
ORDER
1. The suit is hereby decreed.
2. It is hereby declared that the father of the plaintiffs
Rawaji Ramchandra Main is not being heard of for more
than last seven years and he is Civil Dead.
3. The defendant is directed to register the death of Rawaji
Ramchandra Main and to 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
plaintiff after the appeal period is over.
7. The suit stands disposed of accordingly.
(VAIBHAV V. PATIL)
Judge,
City Civil Court,
Date: 17.02.2024 Gr.Mumbai.
Dictated on : 17.02.2024
Typed on : 17.02.2024
Signed on : 17.02.2024
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
17/02/2024 At 5.30 P.M. Ms. Manisha Hirole
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
17.02.2024
Judgment/Order signed by P.O. on 17.02.2024
Judgment/Order uploaded on 17.02.2024
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