Final Order 1

Order Details: Copy of Judgment
Pdf Text: 1
MHCC010078772018
Lodged on : 02.07.2018
Registered on : 06.07.2018
Decided on : 25.09.2023
Duration : 05Y 02M 23D
EXHIBIT-14
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
SUIT NO. 1655 OF 2018
1. MRS. SUVARNA KERBA ]
KESARKAR, Adult, ]
Aged about 52 years ]
Occupation : Housewife. ]
2. MRS. DEEPALI SACHIN ]
PAWAR @ DEEPALI KERBA ]
KESARKAR, Adult, ]
Aged about 33 years ]
Occupation : Housewife. ]
3. MR. SANKET KERBA ]
KESARKAR, Adult, ]
Aged about 31 years ]
Occupation : Service ]
All Adult, Indian Inhabitant ]
Presently Residing at: Room ]
No.07, Wani Chawl No.06, ]
Opposite Podar Mill, ]
N. M. Joshi Marg, Lower Parel, ]
Mumbai – 400 011. ].. Plaintiffs.
V/s.
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1. THE STATE OF ]
MAHARASTRA, Through ]
Chief Secretary, Government ]
of Maharashtra, Mantralaya, ]
Mumbai – 400 032. ]
Through Government Pleader. ]
2. THE MUNICIPAL ]
CORPORATION OF GREATER ]
MUMBAI, Through Assist. ]
Commissioner/Ward Officer, ]
G/South Ward, N.M. Joshi ]
Marg, Lower Parel, ]
Mumbai – 400 013. ]..Defendants.
Advocate Mr. Khandesh Bagate for the plaintiffs.
Advocate Ms. Martina Sakpal for State/ defendant No.1.
Advocate Mrs. Chandramore for BMC/defendant No.2.
CORAM : HIS HONOUR JUDGE
SHRI VAIBHAV V. PATIL
(C.R.No.09).
DATE : 25th SEPTEMBER 2023.
JUDGMENT
Present suit is instituted for the relief of death declaration
that Mr. Kerba Gangaram Kesarkar is presumed to be Civil dead as he
has not been heard of for more than 7 years and for giving directions to
the defendants for issuance of death certificate.
2. It is the case of plaintiffs that plaintiff No.1 is the wife of
Mr. Kerba Gangaram Kesarkar who has been missing from his residence
since 18.12.2006. The plaintiffs took due and diligent search to find
him. However, all attempts were gone futile. Despite due and diligent
search by the plaintiffs and their family members, Mr. Kerba Gangaram
Kesarkar could not be found. Therefore, the plaintiffs have lodged
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missing complaint with Senior Inspector of Police, N.M. Joshi Marg
Police Station vide complaint No.81 of 2006 dated 18.12.2006. The
Senior Inspector of Police, N.M. Joshi Marg Police Station issued letter
on 16.07.2007 that Mr. Kerba Gangaram Kesarkar is untraceable as per
the record of police station.
3. It is further case of the plaintiffs that Mr. Kerba Gangaram
Kesarkar was residing in Mumbai and he went missing from his
residence and therefore, entire cause of action has arisen at Mumbai.
Hence, this Court has jurisdiction to entertain, try and dispose of this
Suit. Hence, the plaintiffs have sought declaration that Mr. Kerba
Gangaram Kesarkar is civil dead and prayed that direction be given to
defendant No.2 for issuance of death certificate of Mr. Kerba Gangaram
Kesarkar and also prayed for decree of the suit.
4. The Defendant No.1 has filed written statement vide
Exh.5A and resisted the suit. It is contended that there is no cause of
action against the State and the suit is liable to be dismissed. The suit is
also barred by law of limitation. The suit be dismissed for want of cause
of action against defendant No.1. The present suit is not maintainable.
The Notice under section 80(2) of the Civil Procedure Code, 1908
which is served no any urgency is made out by the plaintiffs. Hence,
on this ground also the suit is liable to be dismissed.
5. Though defendant No.2/BMC appeared, failed to file its
written statement. Hence, suit came to be proceeded without written
statement of the defendant No.2.
6. I have heard learned advocate for the plaintiffs, the learned
advocate for State/defendant No.1 and learned advocate for defendant
No.2/BMC.
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7. In view of pleadings, issues have been framed by my
learned predecessor on 24.01.2020 vide Exhibit-05 and I have
recorded my findings to them for the reasons stated below.
Sr.
No.
ISSUES FINDINGS
1 Whether the plaintiffs prove that Mr. Kerba
Gangaram Kesarkar 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
2 Whether the suit is barred by limitation ? In the
Negative
3 Whether the plaintiffs are 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 4 :
8. As all the points are related with each other, they are
discussed together to avoid repetition.
9. The plaintiff No.1 has filed her Affidavit of Evidence in lieu
of Examination-in-Chief at Exhibit-7 and deposed on oath and she has
reiterated all the contentions in her plaint in the Affidavit of Evidence.
She was cross-examined by both the advocates of defendants. In cross
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examination she has stated that she had not issued public notice in
news paper about missing of her husband. In cross-examination, she
further stated that she had not made application to BMC for issuing
Death Certificate of her husband and she has not issued notice to BMC
before institution of the suit.
10. In support of the suit claim, the plaintiff has produced on
record list of documents vide Exh.8. The plaintiff has produced on
record the original Certificate dated 16.07.2007 (Exh.9). It shows that
the the plaintiff No.1 has filed complaint to N.M. Joshi Marg Police
Station regarding missing of her husband vide Registration
No.81/2006. The plaintiff has produced on record original Electricity
Bill (Exh.10), original Ration Card (Exh.11) and original office copy of
Notice under section 80 of C.P.C. issued to the State. The learned
advocate for the plaintiffs has filed evidence closed pursis (Exh.13).
11. The learned advocate for defendants submitted that the suit
is barred by law of limitation. It is further submitted that the husband of
the plaintiff No.1 went missing since 18.12.2006. Therefore, she ought
to have instituted the suit within three years from the date of cause of
action, to which she 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 Mr. Kerba Gangaram Kesarkar since
18.12.2006 and the cause of action for institution of the suit is
recurring one and until the plaintiffs realized that Mr. Kerba Gangaram
Kesarkar 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
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continuous cause of action and therefore, it cannot be said 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.
12. 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.
13. In the present case, it is evident that the husband of the
plaintiff No.1 went missing since 18.12.2006. The plaintiff No.1 has
deposed on oath that she took all the efforts to find him and 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 No.1
that her husband was missing since 18.12.2006 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
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missing person is alive. Therefore, in such circumstances, presumption
under section 108 of the Indian Evidence Act can be raised in this case.
14. In view of above documents and the oral evidence,
plaintiffs have proved that Mr. Kerba Gangaram Kesarkar went missing
since 18.12.2006. 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 dead. I therefore, hold that the plaintiffs are entitled for
declaration to that effect.
15. The State is under statutory obligation to maintain the
record of birth and death of citizens. Therefore, in view of above
discussion, the plaintiffs are entitled for death certificate of Mr. Kerba
Gangaram Kesarkar to be issued by the defendant No.2.
16. 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 and 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 the
plaintiff No.1 Mr. Kerba Gangaram Kesarkar is not
being heard of for more than last seven years and he
is Civil Dead.
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3. The defendants are directed to register the death
of Mr. Kerba Gangaram Kesarkar and 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: 25.09.2023 Gr.Mumbai.
Dictated on : 25.09.2023
Typed on : 26.09.2023
Signed on : 30.09.2023
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
30/09/2023 At 4.00 p.m. MRS. SUPRIYA S.PAWAR2
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
25.09.2023
Judgment/Order signed by P.O. on 30.09.2023
Judgment/Order uploaded on 30.09.2023
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