Final Order 1

Order Details: Copy of Judgment
Pdf Text: 1 Judgment in Suit No.1594/2018
Filed on : 18.06.2018
Registered on : 02.07.2018
Decided on : 13.02.2020
Duration : Year-01 Month-07 Days-26
Exh-16
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
Suit No.1594/2018
(CNR NO. MH CC01-007233-2018)
Shri Vitthal Ramu Gholap
Age :- 63 years,
Occupation:- Nil,
R/at :- Room No.101, 1st Floor,
Pancharatna Co-op Hsg. Society,
Chandrabhaga Building,
Lalubhai Compound,
Govandi, Mumbai.
…..Plaintiff
V/s.
1) The Collector,
Mumbai Subarban District,
Collector Office, Bandra,
Mumbai
2) Sr. Police Inspector,
Deonar Police Station, Govandi
Mumbai
....Defendants
Appearance:-
Mr. Siddharth Bhosale, Advocate for the plaintiff.
Ex-parte against defendants.
CORAM :- HER HONOUR JUDGE
JAYSHRI R. PULATE
(C.R.NO.12)
DATE :- 13th February, 2020.
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JUDGMENT
1. This suit is filed for declaration of civil death of father
of plaintiff that Mr. Ramu Bapu Gholap be presumed as dead.
2. It is averred by plaintiff that he is elder son of missing
person Mr. Ramu Bapu Gholap (In short “Mr. Ramu”). He is
missing since 06.06.2007 from Room No.101, 1st Floor, Panchratna
Co-op. Hsg. Society, Chandrabhaga Building Lalubhai Compound,
Govandi, Mumbai. He was residing their along with younger
brother of plaintiff Mr. Chandar Ramu Gholap.
3. It is further averred that younger brother of plaintiff Mr.
Chandar lodged missing complaint of Mr. Ramu on 06.06.2007 to
concerned Deonar police Station bearing complaint No.A.
AM.R.No.72/07 Mumbai. Mother of plaintiff Mrs. Tanubai Ramu
Gholap is expired on 10.03.2017 and his second younger brother
Mr. Laxman Ramu Gholap is expired on 10.02.2011. Mr. Chandar
is expired on 19.03.2008. Therefore, the plaintiff is legal heir of
missing person Mr. Ramu. Legal notice is issued to defendant Nos.1
and 2 and therefore suit is filed.
4. In response to writ of summons, defendants failed to
appear. Therefore, ex-parte order is passed against them.
5. Following points arise for determination. Those are
reproduced along with the findings and reasons against each of
them as stated below.
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SR.
NOS.
POINTS
FINDINGS
1. Whether the plaintiff proves
that Mr. Ramu Bapu Gholap is
not heard of who would have
naturally heard of him since the
date of his missing for period of
more than 7 years, if he would
have been alive ?
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
As to Point No.1:-
6. In order to substantiate the claim, plaintiff Mr. Vitthal
Ramu Gholap has tendered affidavit of Examination-in-Chief at Exh-
5. He has reiterated the contentions raised in the plaint. In support
of his contention, he has relied on certificate dated 16.12.2008
issued by Sr. P.I. Deonar Police Station at Exh-7, Death certificate
of plaintiff’s mother Mrs. Tanubai Gholap, Mr. Laxman Gholap and
younger brother Mr. Chandar Gholap Exh-8 to 10, legal notice along
with R.P.A.D. receipts and postal acknowledgment Exh-11 colly and
Electricity Bill Exh-12.
7. It has been deposed by PW-1 Mr. Vitthal Ramu Gholap
that his father Mr. Ramu is missing since 06.06.2007 and missing
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complaint dated 06.06.2007 was lodged at Deonar police station.
Certificate Exh-7 issued by Sr. P. I. Deonar police station is evident
to show that complaint was registered about missing person Mr.
Ramu and he is untraceable as per the record of police station.
8. Considering the evidence of Shri. Vitthal Ramu Gholap,
relevant documents i.e. complaint lodged in Deonar police station
and certificate Exh-7 issued by Deonar police station, it has come
on record that Mr. Ramu is untraceable.
9. Section 107 and 108 of Indian Evidence Act, 1872 reads
thus :
Section:-107 Burden of proving death of person
known to have been alive within thirty years. - When
the question is whether a man is alive or dead, and
it is shown that he was alive within thirty years, the
burden of proving that he is dead is on the person
who affirms it.
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.
In the scheme of Indian Evidence Act, Section 108 is an
exception to the rule enacted in Section 107. The life of person
shown to be in existence at a given point of time according to
Section-107 ought to be a point within 30 years calculated
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backwards from the date when the question arises, is presumed to
continue to be living. As per Section 108, if the person who would
have naturally and in the ordinary course of human affairs heard of
the person in question have not so heard of him for seven years,
the presumption raised under Section 107 ceases to operate.
Though, it will be presumed that person is dead but there is no
presumption as to the date or time of death. There is no
presumption as to the facts and circumstances under which the
person may have died.
10. Learned Advocate for plaintiff has filed written argument
at Exh-14. The gist of the said argument is that from the certificates
issued by Deonar police station, it has come on record that Mr.
Ramu is missing since 06.06.2007 and therefore plaintiff is entitled
for the relief of declaration as sought.
11. In order to support her contention, learned Advocate for
plaintiff has cited the Judgment in the matter of
Smt. Swati w/o
Abhay Deshmukh and ors. V/s. Mr. Abhay s/o Purushottam
Deshmukh & ors. in Second Appeal No.18/2016, dated 26.02.2016.
It has been observed by Hon'ble High Court, Nagpur Bench
that :
The Civil Court acting under Section-9, has
inherent powers in its plenary jurisdiction de hors
with reference to Section 34 of the Specific Relief
Act to grant relief qua Section 108 of the Evidence
Act.
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Considering the observations in the cited judgment and in
view of the dictum laid down by Hon'ble Supreme Court in “
LIC of
India V/s. Anuradha AIR 2004 SC 2017”, that the presumption as
to death by reference to Section-108 would arise only on lapse of
seven years. An occasion for raising the presumption would arise
only when the question is raised in a Court, Tribunal or before an
Authority who is called upon to decide as to whether a person is
alive or dead considering the observations, I am of the opinion that
evidence on record is evident to show that Mr. Ramu has not been
heard of by the persons who would have naturally heard of him
since 06.06.2007. Accordingly, point No.1 is answered in affirmative.
As to Point No.2:-
12. Considering the evidence adduced on record and
the documents relied on behalf of plaintiff, I am of the opinion that
plaintiff is entitled for the relief of declaration of civil death of Mr.
Ramu. In view of the findings and reasons for point No.1, plaintiff
is entitled for relief of declaration as sought. The plaintiff has
claimed the declaration of civil death of Mr. Ramu against The
Collector/Sr. Police Inspector. Therefore, he shall bear the cost of
suit. Resultantly, point No.2 is answered in affirmative and for the
answer of point No.3, I pass following order.
ORDER
1) Suit is decreed.
2) Plaintiff shall bear his own cost.
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3) It is declared that Mr. Ramu Bapu Gholap is presumed to be
dead as he is missing since 06.06.2007.
4) Decree be drawn accordingly.
(Jayshri R. Pulate)
Judge
City Civil Court,
Gr. Bombay
Date :- 13/02/2020
Dictated on : 13.02.2020
Transcribed on : 14.02.2020
Signed on : 20.02.2020
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED ORDER.”
UPLOAD DATE TIME STENOGRAPHER NAME
21.02.2020 11.25 a.m. Ms. Ujwala J. Bhagat.
Name of the Judge H.H.J. Jayshri R. Pulate.
(Court Room No.12)
Date of pronouncement of Order 13.02.2020
Order signed by P.O. on 20.02.2020
Order uploaded on 21.02.2020
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