Final Order 1

Order Details: Copy of Judgment
Pdf Text: 1 L.C. SUIT NO.1471-2018 - Judgment
MHCC010060832018
Presented on : 04-05-2018
Registered on : 19-06-2018
Decided on : 11-01-2023
Duration : 4 years, 8 months, 7 days
Exhibit :
IN THE BOMBAY CITY CIVIL COURT AT MUMBAI
L.C. SUIT NO. 1471 of 2018
Husainali Mohamed Husain Merchant ]
Age:46 years, of Bombay Indian Inhabitant ]
residing at 701, Bldg. No.5, Agarwal ]
Peace Heaven, Near Bhabola Naka, ]
Vasai Road West, Taluka Vasai, ]
District Thane ]....Plaintiff.
Versus
1) The State of Maharashtra ]
to be served through Law and ]
Judiciary Department, Mantralaya ]
Mumbai. ]
2) Senior Inspector of Police, ]
Dongri Police Station, ]
Bombay 400 009. ]
3) Municipal Corporation of Gr. ]
Bombay, Mahapalika Bhuvan, ]
Mahapalika Marg, Fort, Mumbai1 ]
& its B Ward office at Babula Tank ]
Road, Bombay9. ]....Defendants.
Appearances:
Ld. Advocate Bhatiya for Plaintiff.
Ld. Advocate Kapse for Defendant No.1 and 2/State.
Ld. Advocate Chandramore for Defendant No.3/MCGM.
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2 L.C. SUIT NO.1471-2018 - Judgment
CORAM : K.P. KSHIRSAGAR
JUDGE, (C.R.NO.08)
DATE : 11th JANUARY, 2023.
JUDGMENT
1) This is a suit for declaration that Mumtaz Mohamed Hussain
Merchant is dead and for mandatory injunction directing defendant
No.3 to record the death of Mumtaz Mohamed Hussain Merchant in the
register of death.
Plaintiff’s case in brief is as under:
2) Mumtaz Mohamed Hussain Merchant was the sister of plaintiff
and she was residing in Room No.4, 4th floor, Banatwalla building,
ShaidaMarg, Dongri, Mumbai400 009. Mumtaz Mohamed Hussain
Merchant had lost her mental balance. Sister of plaintiff Mumtaz
Mohamed Hussain Merchant went missing from her home at Dongri
since 1/6/2002. Therefore, plaintiff lodged missing complaint with
Dongri police station on 2/6/2002. In spite of the efforts of plaintiff and
the police to trace Mumtaz Mohamed Hussain Merchant she was not
traced. After investigation police issued certificate that in spite of efforts
Mumtaz Mohamed Hussain Merchant could not be traced till date. Since
1/6/2002 Mumtaz Mohamed Hussain Merchant has not been heard.
Therefore, plaintiff prayed for declaration that his sister Mumtaz
Mohamed Hussain Merchant is dead and for mandatory injunction
directing defendant No.3 to record death of his sister in the register of
death.
3) Defendant No.1 and 2 resisted the claim of plaintiff by filing
written statement vide Exh.5. Defendant No.1 and 2 admitted that
missing person was residing at Banatwalla building, Shaida Marg,
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Dongri, Mumbai and missing complaint was lodged by Mohamed
Hussain Kasamali Merchant i.e. father of missing person on 1/6/2002.
Defendants No.1 and 2 admitted that thereafter certificate was issued
regarding the complaint of father of the missing person. Defendants
No.1 and 2 contended that inspite of several inquiries and efforts
missing person could not be traced. The suit is barred by law of
limitation. Suit is bad for want of statutory notice under Section 80 of
Code of Civil Procedure and therefore suit is not maintainable.
Therefore, defendants No.1 and 2 submitted that suit be dismissed.
4) Defendant No.3 failed to appear and to file written statement and
therefore, suit was proceeded without written statement of defendant
No.3.
5) From the pleadings of the parties predecessor of this court framed
issues at Exh.6. Court has reproduced those issues below alongwith its
decision thereon.
SR.NO. ISSUES DECISION
1) Whether plaintiff proves that, Mumtaz
Mohamed Hussain Merchant is missing
since 1/6/2002 and not found till date?
Yes.
2) Whether the defendants prove that suit is
bad for want of notice under section 80
of the Code of Civil Procedure?
No.
3) Whether the defendants prove that the suit
is barred by limitation?
No.
4) Whether plaintiff is entitled for the relief
of declaration as sought?
Yes.
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5) What Order and decree? As per final order.
REASONS
6) In order to prove his claim plaintiff examined himself as PW1 by
filing his affidavit in lieu of examination in chief vide Exh.7. Plaintiff
also relied upon documents like death certificate Exh.9, certificate issued
by Dongri police station Exh.10, final certificate issued by Sr. Police
Inspector of Crime Branch Exh.11, certified copy of miscellaneous
application Exh.12 original newspaper publication Exh.13 etc. On the
other hand defendants did not adduce any oral or documentary
evidence.
7) Heard arguments of Ld. Advocate for plaintiff and Ld. Advocate
for defendants.
As to issue No. 2 & 3:
8) From the record it appears that leave u/s.80(2) of Code of Civil
Procedure was granted to the plaintiff. Therefore, present suit is not bad
for want of notice u/s.80 of Code of Civil Procedure. Moreover, the
cause of action for filing the present suit is continuing cause of action.
As such present suit is within limitation and it is not barred by law of
limitation. Therefore, court hold that defendants failed to prove that suit
is bad for want of notice u/s. 80 of Code of Civil Procedure and suit is
barred by law of limitation. Therefore, issue No.2 and 3 are answered in
negative.
As to Issue No.1 & 4:
9) In respect of fact involved in this issue PW1 i.e. plaintiff vide his
affidavit in lieu of examination in chief Exh.7 deposed in accordance
with his claim. PW1 categorically deposed that his sister Mumtaz
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Mohamed Hussain Merchant went missing since 1/6/2002 and missing
complaint was lodged on 2/6/2002. PW1 deposed that in spite of effort
till date they have not received any information about Mumtaz
Mohamed Hussain Merchant. The documents produced and proved by
the plaintiff also corroborates the testimony of plaintiff that Mumtaz
Mohamed Hussain Merchant went missing since 1/6/2002 and missing
complaint was lodged on 2/6/2002 and the police issued certificate that
all the efforts were made to trace the missing lady but she could not be
traced till today. Moreover, testimony of PW1 is also not shaken in his
cross examination.
10) It is also not the defence of the defendants that Mumtaz
Mohamed Hussain Merchant is alive and she was seen or heard within
last seven years. As such, there is no reason so as to disbelieve the
testimony and claim of plaintiff that his sister Mumtaz Mohamed
Hussain Merchant has not been heard for last seven years or more by
those who would naturally have heard of her if she had been alive.
Therefore, this court hold that plaintiff proved the fact by
preponderance of probabilities that his sister Mumtaz Mohamed Hussain
Merchant has not been heard for last seven years or more. Therefore,
this court hold that plaintiff proved the fact by preponderance of
probabilities that his sister Mumtaz Mohamed Hussain Merchant has not
been heard for last seven years or more by those who would have
naturally heard of her if she had been alive. Therefore, the presumption
u/s.108 of Indian Evidence Act will have to be raised. As the defendants
did not affirm that his sister Mumtaz Mohamed Hussain Merchant is
alive, it will have to be presumed u/s. 108 of Indian Evidence Act that
Mumtaz Mohamed Hussain Merchant is dead.
11) Considering the matter on record and above discussion court hold
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that plaintiff proved by preponderance of probabilities the fact that his
sister Mumtaz Mohamed Hussain Merchant has not been heard for last
seven years or more by those who would naturally have heard of her, if
she had been alive and therefore, she is presumed to be dead. Hence,
issue no.1 is answered in affirmative.
12) In view of affirmative decision as to issue No.1 and negative
decision as to issue No.2 and 3 court hold that plaintiff is entitled for
declaration of civil death of his sister Mumtaz Mohamed Hussain
Merchant. Therefore, issue No.1 and 4 are answered in affirmative.
As to Issue no. 5:
13) Plaintiff has also prayed for relief of mandatory injunction
directing defendant No.3 to record death of Mumtaz Mohamed Hussain
Merchant in the register of death. However, presumption u/s.108 of
Indian Evidence Act is about death and there is no presumption as to the
time or date of death of person. There is no evidence on record about
the date of death of sister of plaintiff. Moreover, as per provisions of
Registration of Births and Deaths Act 1969 special procedure/remedy is
provided for delayed registration of birth and death. Therefore, in view
of the provisions of Registration of Births and Deaths Act 1969 this court
hold that there is implied bar of jurisdiction to civil court for directing
defendants to register the death of sister of plaintiff. Therefore, court
hold that plaintiff is not entitled for the relief of mandatory injunction
directing defendant No.3 to record the death of his sister Mumtaz
Mohamed Hussain Merchant in the register of death. However, in view
of affirmative findings as to issue No.1 and 4 the plaintiff is entitled for
the relief of declaration of death of his sister. Therefore, the suit
deserves to be partly decreed with proportionate cost. Therefore, Court
proceeds to pass the following order :
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ORDER
1) Suit is partly decreed with proportionate costs.
2) It is hereby declared that, Mumtaz Mohamed Hussain Merchant is
dead.
3) Decree be drawn up accordingly.
(K.P.KSHIRSAGAR)
Judge
Dt.:11/1/2023. City Civil Court,
Gr. Mumbai
Dictated on : 11/1/2023.
Typed on : 11/1/2023.
Draft received on: 12/1/2023.
Checked on: 13/1/2023.
Corrected & Signed on :13/1/2023.
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER.”
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
16/1/2023 Mrs. S.A. Shekade.
Name of the Judge (With Court room
no.)
SHRI K.P. Kshirsagar (Court Room
No.08)
Date of Pronouncement of
JUDGMENT/ORDER
11/1/2023.
JUDGMENT/ORDER signed by P.O.
on
13/1/2023.
JUDGMENT/ORDER uploaded on 16/1/2023.
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