Final Order 1

Order Details: Copy of Judgment
Pdf Text: 1
Lodged on : 11.07.2019
Registered on : 01.08.2019
Decided on : 07.02.2024
Duration : 04 Y : 06 M : 27 D
EXHIBIT-12
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
SUIT NO. 2204 OF 2019
(C.N.R. NO. MHCC01-007158-2019)
1. Gulam Sarwar Khan ]
Age 63 years, Occ. : Service ]
R/a. : Room No.04, Fakku Manzil ]
1st floor, 135, Maulana Shaukat Ali ]
Road, Two Tank, Mandvi, ]
Mumbai – 400 003. ]
2. Shakir Gulaam Mohd. Khan ]
Age : 60 years, Occ. : Service ]
R/a. : 49/17, L.I.G. Colony, ]
V. B. Nagar, Pipe Road, ]
Mumbai – 400 070 ]
3.Mrs. Firdous Sirajuddin Sayyed ]
Age : 61 years, Occ. : Housewife ]
R/a. : Noor CHS, Building No.2, ]
Flat No.14, 3rd Floor, Sector 9A. ]
Plot No.18, Masjid Chowk Vashi, ]
Navi Mumbai, Turbhe, Raigarh – 400 703 ]
4. Zameer Gulam Mohammed Khan ]
Age : 59 years, Occ. : Service ]
R/a. : 49/17, L.I.G. Colony, ]
V. B. Nagar, Pipe Road, ]
Mumbai – 400 070 ]
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5. Farrukh Kamruzzama Shahzad Khan ]
Age : 58 years, Occ.: Service, ]
R/a. : 348, West Bapti Road, Jeevaji ]
Lokhandwala Chawl, 2nd floor, R34, ]
P. P. Marg, Grant Road, Mumbai – 400 008 ]
6. Khushnud Jameel Khan, ]
Age : 63 years, Occ. : Housewife, ]
R/a. : Building No.229, Room No.1, ]
Firoaz Manzil, Shalimar Hotel, Daruwala ]
Chawl, Kurla West, Mumbai – 400 070 ] ... Plaintiffs.
V/s.
1. The State of Maharashtra, ]
Through Senior Police Inspector, ]
Kurla Police Station, Mumbai. ]
2. Public Health Department, Medical ]
Officer of Health, Sub-Registrar Birth and ]
Death, ‘L’ Ward Office, Municipal ]
Corporation of Gr. Mumbai ]
Kurla Market, S. G. Barve Marg, Kurla (W), ]
Mumbai – 400 070. ] ...Defendants.
Advocates Mr. Siddhique for the plaintiff.
Advocate Ms. Priyanka Gaonkar h/f. Adv. Martina Sakpal 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 : 7th FEBRUARY 2024.
JUDGMENT
Present suit is instituted for the relief of death declaration
that Shri. Ghulam Mohammed Ghulam Jilani Khan is presumed to be
Civil dead as he has not been heard of for more than 7 years.
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2. It is the case of plaintiff that plaintiffs are children of
Shri. Ghulam Mohammed Ghulam Jilani Khan who went missing on
02.05.2008 from V. B. Nagar, Mumbai. The plaintiffs took search of their
father but they could not find him. Hence they lodged missing
complaint of their father on 05.05.2008 with V. B. Nagar Police Station,
Mumbai and the police registered said complaint and recorded missing
report dated 05.05.2008. Thereafter, plaintiffs, as well as police made
every possible efforts to trace Shri. Ghulam Mohammed Ghulam Jilani
Khan however, he could not be found even-after due and diligent
search. V.B. Nagar Police Station issued certificate on 10.05.2019 stating
that police station record regarding missing report is not available.
3. It is further contention of the plaintiffs that their father’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 Shri. Ghulam Mohammed Ghulam Jilani Khan
who is not heard of for more than seven years under section 108 of
Indian Evidence Act, 1908.
4. The Defendant No. 1 filed written statement vide Exh.04
and resisted the claim of plaintiff. Defendant No.2 failed to file written
statement. Hence, suit came to be proceeded without written statement
of defendant No.2.
5. In view of pleadings, following issues arises for my
determination and I have recorded my findings to each of them for the
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reasons stated below.
Sr.
No.
ISSUES FINDINGS
1. Whether the plaintiff proves that Shri.
Ghulam Mohammed Ghulam Jilani Khan has
not been heard of for seven years, since the
date of missing i.e. 12.01.2015 ?
In the
Affirmative
2. Whether the plaintiff is entitled for decree of
declaration that Shri. Ghulam Mohammed
Ghulam Jilani Khan is presumed to be dead
as per Sec. 108 of the Indian Evidence Act?
In the
Affirmative
3. Whether the plaintiff is entitled for a Death
Certificate of Shri. Ghulam Mohammed
Ghulam Jilani Khan to be issued by B.M.C.?
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.
7. The plaintiff No. 1 has filed affidavit of evidence in lieu of
Examination-in-Chief at Exhibit-06. 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 defendants. In cross
examination he has stated that missing person is his father who was 94
years old and went missing in the year 2008. He stated that his brother
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had lodged the complaint of missing of his father. He further stated that
they had approached BMC for issuing Death Certificate of his father but
they were directed to go to the Court. He stated that they had not
issued notice to BMC prior to institution of the suit.
8. In support of the suit claim, the plaintiff has produced on
record list of documents vide Exh.07. The plaintiff has produced on
record Power of Attorney dated 10.12.2018 (Exh.08), Ration Card
(Exh-09 Colly.), Letter dated 10.05.2019 from Sr. Police Station, V. B.
Nagar Police Station (Exh.10).
9. The learned advocate for defendants submitted that the suit
is barred by law of limitation. It is further submitted that the father of
the plaintiffs went missing since 02.05.2008. Therefore, they ought to
have instituted the suit within three years from the date of cause of
action, to which they failed. Hence, suit is barred by law of limitation.
In reply, the learned advocate for the plaintiffs submitted that the
plaintiffs did not hear anything about their father Shri. Ghulam
Mohammed Ghulam Jilani Khan since 02.05.2008 and the cause of
action for institution of the suit is recurring one and until the plaintiff
realized that their father Shri. Ghulam Mohammed Ghulam Jilani Khan
cannot be traced, they 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 plaintiffs. 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 defendants in this regard cannot be accepted.
Thus, it is crystal clear that the suit is very well within limitation.
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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 father of the
plaintiffs went missing since 02.05.2008. The plaintiff has deposed on
oath that he took all the efforts to find him and his brother also lodged
missing complaint with police, but police also could not trace him.
Despite of his efforts, he 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 02.05.2008 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
defendants have 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
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has proved that Shri. Ghulam Mohammed Ghulam Jilani Khan went
missing since 02.05.2008. The defendants have 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 Shri. Ghulam
Mohammed Ghulam Jilani Khan to be issued by the defendant No.2.
14. In the circumstances above, I have come to the conclusion
that plaintiffs are entitled to the declaration as prayed for. Accordingly,
I 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 Shri. Ghulam Mohammed Ghulam Jilani
Khan is not being heard of for more than last
seven years and he is Civil Dead.
3. The defendants are directed to register the death
of Shri. Ghulam Mohammed Ghulam Jilani Khan
and to issue death certificate accordingly.
4. No order as to costs of the suit.
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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: 07.02.2024 Gr.Mumbai.
Dictated on : 07.02.2024
Typed on : 07.02.2024
Signed on : 08.02.2024
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
08.02.2024 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
07.02.2024
Judgment/Order signed by P.O. on 08.02.2024
Judgment/Order uploaded on 08.02.2024
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