Order 1

Order Details: Copy of Judgment
Pdf Text: 1
Lodged on : 22.06.2018
Registered on : 21.06.2019
Decided on : 30.01.2023
Duration : 04Y 07M 08D
EXHIBIT-19
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
S. C. CIVIL SUIT NO. 1778 OF 2018
( CNR No.MH-CC-01-007489-2018)
SMT. SUSHEELA GOPAL SHRIYAN ]
Age 65 Years, Occupation: Housewife]
Hindu, Indian Inhabitant, Residing at]
51-15-6, Kranti Nagar, Near Satyam ]
Junction, Nakkavanipalem, ]
Visakapatnam (U), P & T Colony ]
(Vm), Andhra Pradesh-5300013 ].. Plaintiff.
V/s.
STATE OF MAHARASHTRA, ]
Through Collector of Mumbai. ]..Defendant.
Advocate Mr. R.R. Thakur h/f Advocate Mr. A.A. Sayyid and Co. for the
plaintiff.
Advocates Mr. Kapse for State/defendant.
CORAM : HIS HONOUR JUDGE
SHRI SITARAM N. PATIL
(C.R.No.09).
DATE : 30th JANUARY 2023
JUDGMENT
The suit is instituted for the relief of death declaration of
Shri Gopala Rama Shriyan.
2. It is the case of plaintiff that she is a wife of Shri Gopala
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Rama Shriyan. Her husband Shri Gopala Rama Shriyan was working
with R.R. Shipping as Chief Officer. On night of 06.02.2008, Shri
Gopala Rama Shriyan after performing his duty had his dinner
alongwith all other crew members in the mess. Thereafter, he went to
his cabin for sleeping. From that, he went missing as he did not turn
up in the morning of 07.02.2008. Deck Officer Mr. Kishore Kumar
informed the Master Anjani Dhawan that Shri Gopala Rama Shriyan
was not to be found on his bed. Thereupon search operation
commenced immediately every where on board. They also tried to call
him on his mobile which was shown out of reach.
3. It is furher case of the plaintiff that the Manager of the
Company was informed to send boat immediately for searching beyond
the vesses and continuous search operation was put into motion, but he
has not bee found inspite of best efforts. The Chief Engineers Mr. Anjani
Dhawant and Mr. Chinmay Das working for M.T. Rajaji went to Yellow
Gate Police Station alongwith the Company’s representatives and lodged
their individual statements. The plaintiff also lodged a missing
complaint to the police station of her residence town and obtained
report on 23.05.2018.
4. It is further case of the plaintiff that on 15.02.2008, the
Sub-Inspector of Yellow Gate Police Station sent letter to the son of Shri
Gopala Rama Shriyan regarding missing complaint lodged with the
police station. As per the directions of the Police Authorities, R.R.
Shipping Company published missing person new in the National
Newspaper, Maharashtra Times on 24.02.2008. The best efforts were
carried out to trace Shri Gopala Rama Shriyan since from 2008. But till
today the plaintiff is unable to trace whereabouts of Shri Gopala Rama
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Shriyan. The cause of action arose on 07.02.2008. The plaintiff wife of
Shri Gopala Rama Shriyan who is missing and not heard for last 10
years and hence she had locus standi to file present suit for declaration.
The suit is within limitation. Therefore, the plaintiff has prayed for
declaration.
5. Defendant has filed written statement vide Exhibit-5. It is
contended that there is no cause of action against the State and the suit
is liable to be dismissed. The plaintiff has not obtained leave under
section 80(2) of the Code of Civil Procedure. There are no reliefs
claimed against the defendant. It is admitted that the complaint was
lodged on 07.02.2008 and accordingly same was registered under
missing persons in the city of Mumbai.
6. I have heard learned advocate for the plaintiff and the
learned advocate for State/defendant.
7. My learned predecessor has framed issues at Exhibit-7. I
have reproduced the same as below. My findings to them are as stated
below for the reasons mentioned thereunder.
Sr.
No.
ISSUES FINDINGS
1 Whether plaintiff proves that Shri Gopala Rama
Shriyan 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 the
Affirmative
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2 Whether the defendant proves that suit is bad
for want of Notice under section 80(2) of Code
of Civil Procedure ?
In the
Negative
3 Whether plaintiff is entitled for the relief of
declaration as prayed for?
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 :
8. As all three points are related with each other. Hence, they
are discussed at once to avoid repetition.
9. The plaintiff has filed her Affidavit of Evidence by way of
examination-in-chief at Exhibit-10 and deposed on oath and she has
reiterated all the contentions in her plaint in the Affidavit. She was
cross-examination by the defendant. In the cross-examination she has
admitted that the company searched to her husband, but he was not
found. She also deposed that Mr. Anjani Dhavan and Chinmay Das who
working with her husband lodged police complaint in Yellow Gate
Police Station. She also published a news about missing of her husband.
Yellow Gate Police Station issued a certificate to her as her husband was
not found after searching. She admitted that she has issued notice
under section 80 of C.P.C. prior to filing of the suit.
10. In support of the suit claim, the plaintiff has produced on
record Certificate (Exh.12) in favour of the plaintiff. The plaintiff has
produced Letter of Yellow Gate Police Station (Exh.13), Letter dated
31.03.2008 issued by R.R. Shipping to the plaintiff (Exh.14), Letter
issued by Yellow Gate Police Station dated 23.07.2008 to the plaintiff
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(Exh.15). The plaintiff has produced Letter of Yellow Gate Police Station
dated 17.07.2014 (Exh.16) and Certificate of Yellow Gate Police
Station dated 20.04.2016 (Exh.17) The learned advocate for the
plaintiff has filed evidence close pursis (Exh.18).
11. The learned advocate for defendant submitted that the suit
is barred by law of limitation. It is not maintainable. There is no cause
of action against the State and the suit is liable to be dismissed. The
plaintiff has not obtained leave under section 80(2) of the Code of Civil
Procedure. In reply, the learned advocate for the plaintiff submitted
that the plaintiff waited for last 14 years and meanwhile search through
Government machinery as well as the company of Shri Gopala Rama
Shriyan. The missing person i.e. Shri Gopala Rama Shriyan is also
published in newspaper, but her husband cannot be traced.
12. The learned advocate for the plaintiff drawn my attentions
towards sections 107 and 108 of the Indian Evidence Act. It is further
submitted that burden of proving death of the father known to have
been alive within thirty years as mentioned in section 107 of the Indian
Act and period of seven years as mentioned in section 108 of the Indian
Evidence Act is minimum period. Therefore, the suit is within limitation.
The sections 107 and 108 of the Indian Evidence Act speak as under;
Section 107: Burden proving death of the father 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 father who affirms it.
Section 108: Burden of proving that the father is alive
who has not been heard of for seven years. When the
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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 father who affirms it.
13. In the case of Smt. Narbada and Another V/s. Ram Dayal
reported in AIR 1968 Raj 48 wherein disclosed descriptions of sections
107 and 108 of the Evidence Act. Therefore, the said citation is
applicable.
14. In the case of Surat Rupchand Hingorani Vs Smt. Dayali
Khusaldas Mankani (since deceased) reported in Testamentary Petition
No. 1027 of 2015. In the matter, before Hon’ble Lordship, the father
went missing in the year 1989 and the petition was filed in the year
2015 which came to be allowed. The said citation is applicable to the
fact of the present case.
15. It is clear that the plaintiff will institute the suit only when
the plaintiff feels that her husband cannot be traced out. She cannot be
compelled to institute such suit. Further-more, period of seven years as
mentioned in Sec. 108 of the Indian Evidence Act cannot be treated as
mandatory period, but it is minimum period which gives right to
institute the suit. However, the cause of action is recurring one.
Therefore, suit cannot be stated to be barred by law of limitation.
16. In view of all above discussion, I have come to the
conclusion that Shri Gopala Rama Shriyan is found to be missing for a
period of more than 14 years. The legal presumption is attracted under
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section 108 of the Evidence Act that his father is dead. I therefore, hold
that the plaintiff is entitled for declaration to that effect.
17. The State is under statutory obligation to maintain the
record of birth and death. Therefore, the suit filed against the State is
maintainable. It is proved that Shri Gopala Rama Shriyan is proved to
be not heard of for more than seven years, I hold that the legal
presumption arises that he is dead.
18. In the circumstances above, I have come to the conclusion
that plaintiff is entitled to the declaration as prayed for. Accordingly, I
answer Issue Nos.1 and 3 in the affirmative, answer Issue No.2 in the
negative and in answer to point No. 4, I proceed to pass following order.
ORDER
1. The suit is hereby decreed.
2. It is hereby declared that the husband of
plaintiff i.e. Shri Gopala Rama Shriyan is not being
heard of for more than last seven years and he is
Civil Dead.
3. No order as to costs of the suit.
4. Decree be drawn accordingly.
5. The suit stands disposed of accordingly.
(SITARAM N. PATIL)
Judge,
City Civil Court,
Date: 30.01.2023 Gr.Mumbai.
Dictated on: 30.01.2023
Typed on : 30.01.2023
Signed on : 30.01.2023
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
30/01/2023 At 5.30 p.m. MRS. SUPRIYA S.PAWAR
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (With Court Room
Number)
HHJ MR. SITARAM N. PATIL
(C.R.NO.09)
Date of pronouncement of Judgment/
Order
30/01/2023
Judgment/Order signed by P.O. on 30/01/2023
Judgment/Order uploaded on 30/01/2023
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