Final Order 1

Order Details: Copy of Judgment
Pdf Text: 1 Judgment LC SU 2580-19
MHCC010082672019 Presented on : 06-08-2019
Registered on : 01-10-2019
Decided on : 02-01-2025
Duration : 05 Y : 03 M : 02 D
EXHIBIT-17.
IN THE BOMBAY CITY CIVIL COURT AT MUMBAI
L.C. SUIT NO. 2580 OF 2019
Smt. Shobha Nana Gaikwad,
Age : 57 years, Occu : Housewife,
Indian Inhabitant, Religion- Hindu,
Residing at – Nalanda Society, Ambedkar
Society, Near Buddha Vihar, Vikhroli Park Site,
Vikhroli (West), Mumbai- 400 079.
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Versus
1. Mrs. Sushma Raju Mohole
Miss. Sushma Nana Gaikwad
Age : 37 years, Occu : Housewife,
Indian Inhabitant, Religion- Hindu,
R/at : Plot No. 07, New Nagababa, Near Vaishali
Buddha Vihar, Mahul Road, Vashinaka,
Chembur, Mumbai- 400 074.
2. Mr. Pravin Nana Gaikwad,
Age : 34 years, Occu : Service,
Indian Inhabitant, Religion- Hindu,
R/at : Nalanda Society, Ambedkar Society, Near
Buddha Vihar, Vikhroli Park Site, Vikhroli
(West), Mumbai- 400 079.
3. Mrs. Reshma Gurunath Kamble,
Age : 33 years, Occu : Housewife,
Indian Inhabitant, Religion- Hindu,
R/at : Nalanda Society, Ambedkar Society, Near
Buddha Vihar, Vikhroli Park Site, Vikhroli
(West), Mumbai- 400 079.
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4. Mrs. Saloni Sagar Khaire,
Age : 27 years, Occu : Housewife,
Indian Inhabitant, Religion- Hindu,
R/at : Plot No. 07, New Nagababa, Near Vaishali
Buddha Vihar, Mahul Road, Vashinaka,
Chembur, Mumbai- 400 074.
5. The State of Maharashtra,
Through Collector of Mumbai, Suburban
District, Mumbai, The Collector’s Office,
Administrative Building, 10th Floor, Bandra
(East), Mumbai- 400 051.
6. The Senior Inspector of Police,
Chembur Police Station, Chembur, Mumbai- 400
074.
7. Asst. Commissioner Municipal Corporation of
Greater Mumbai,
“M” Ward, Chembur, Mumbai- 400 074.
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(Rider I)
...Defendants
Appearances :
Learned Adv. Mr. Nitin Pokhrankar along with Mr. Santosh Jagtap for the
plaintiff.
None for defendant Nos.1 to 4.(Exparte)
Learned Adv. Mr. Amit Kapse for defendant Nos.5 and 6/State.
Learned Adv. Mr. Rahul Rathod for defendant No. 7/BMC.
CORAM : HER HONOUR JUDGE
SMT. A. V. KASTURE
(C.R.NO.09)
DATE : 02nd JANUARY, 2025
JUDGMENT
(delivered on 02nd January, 2025)
1. This suit is instituted for, declaration of death and issuance
of death certificate of missing person under the provisions of Section 108
of the Indian Evidence Act.
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2. The facts of the case can be stated as under :
The plaintiff is a wife of the missing person Mr. Nana Yeshwant
Gaikwad and residing at above mentioned address. Her husband turned
missing since 22.10.2007. He came to be searched but nobody could
trace him. Finally she lodged the complaint with Chembur Police Station,
Mumbai on 19.11.2007 bearing No. 105/2007. After due search he could
not be traced. Therefore, police station, Chembur issued letter to the
plaintiff on 29.07.2019, wherein they have intimated to the plaintiff that
despite efforts being made, they could not trace or find out the
whereabouts of the missing husband of the plaintiff. The plaintiff wants
the death certificate of missing person for administrative purposes. She
left with no alternative but to file the suit for declaration of death and
issuance of death certificate. The plaintiff prayed for the same.
3. After institution of the suit, the suit summons came to be
issued to the defendants. The defendant Nos. 1 to 4 failed to appeared in
response to the suit summons, therefore, suit is proceeded exparte
against them. The defendant Nos.5 to 7 failed to file the written
statement. Hence, suit proceeded further without Written Statement of
defendant Nos. 5 to 7.
4. Heard learned Advocate for the plaintiff, learned Advocate
for the defendant Nos.5 and 6/State and learned Advocate for the
defendant No.7/BMC.
5. The following points arise for my determination. The
findings along with their reasons are recorded hereinafter :
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Sr. no. Points Findings
1. Whether the plaintiff proves that Mr. Nana
Yeshwant Gaikwad has not been heard of for
seven years, since 22.10.2007 ?
In the
Affirmative.
2. Whether the plaintiff is entitled for decree of
declaration that Mr. Nana Yeshwant Gaikwad is
dead (civil death) as per Section 108 of the
Indian Evidence Act ?
In the
Affirmative.
3. Whether the plaintiff is entitled for a Death
Certificate of Mr. Nana Yeshwant Gaikwad to be
issued by B.M.C. ?
In the
Affirmative.
4. What order and decree ? As per final
order.
REASONS
6. This suit is instituted by the plaintiff, therefore, burden of
proof under Section 101 of Indian Evidence Act lies upon her and in
order to discharge the said burden, the plaintiff examined herself. The
plaintiff relied upon the following documents viz., Missing complaint No.
105/2007 dated 19.11.2007 at Exh.07. Speed Post acknowledgment two
receipts at Exh.8 and Exh.9 respectively. Legal notice of advocate dated
20.07.2019 to Collector MSD Bandra at Exh.10. Legal notice to Senior PI
Chembur Police Station at Exh.11. Postal receipt at Exh.12. Aadhar Ccard
of plaintiff at Exh.13. School Leaving Certificate of plaintiff at Exh.14.
Marriage invitation card of plaintiff at Exh.15. The plaintiff filed pursis
vide Exh.16 and closed evidence. The plaintiff in her oral evidence
deposed that missing person was her husband. He could not be traced by
her as well as police. She approached to the police to register the
complaint and issue certificate that husband of plaintiff is missing. The
other side cross-examined the plaintiff wherein she deposed that she has
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not issued the notice Under Section 527 of B.M.C. Act before instituting
the present suit. The defendants examined no witness and filed no
documents in support of their contentions. The proceeding came to be
concluded with the arguments of plaintiff and defendant Nos. 5 to 7.
As to point No. 1 to 4 :-
7. The oral evidence of plaintiff as well as documents make it
clear that the missing person was husband of plaintiff and he turned
missing since 22.10.2007. Plaintiff as well as police could not trace the
missing person. The period of 7 years or more have been elapsed from
the date of missing of husband of plaintiff. As per the provisions under
Section 108 of the Indian Evidence Act, the missing person can be
declared dead, if, he is missing for 7 years or more. The plaintiff is
entitled for the declaration as prayed.
8. The plaintiff is also praying for issuance of death certificate.
She never approached to the BMC for issuance of death certificate. As far
as the death certificate is concerned, the plaintiff is entitled to receive it
under the patronage of Section 108 of the Indian Evidence Act. The
plaintiff has completed all the formalities and entitled to the relief
claimed.
9. The plaintiff has not served the notice under Section 80 of
C.P.C. and Section 527 of B.M.C. Act for prior to institution of the suit but
the plaintiff is not seeking relief against the act of Government or it’s
officers as well as act of BMC or it’s officers have not been challenged,
therefore, notice under Section 80 of C.P.C and under Section 527 of the
BMC Act are not necessary and non issuance of it is not fatal to the
case/suit. The plaintiff is also entitled for the death certificate under
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Section 108 of the Indian Evidence Act i.e. under the presumption
mentioned in Section 108 of the Indian Evidence Act. In view of above
said reasons, my answer to issue Nos. 1 to 3 are in affirmative. In view of
circumstances, the parties are required to bear their own costs. Finally, I
am inclined to pass following order resulting in grant of declaration and
issuance of death certificate. Hence, the following order :
ORDER
1. The L.C. Suit No. 2580 of 2019 is hereby decreed.
2. It is hereby declared that Mr. Nana Yeshwant Gaikwad is dead
(Civil death) under the provisions of 108 of Indian Evidence Act.
3. The death certificate of missing person be issued under Section
108 of the Indian Evidence Act (under Presumption of Civil
Death).
4. No order as to costs.
5. The decree be drawn up accordingly.
(A. V. KASTURE)
Judge,
City Civil Court,
Date: 02.01.2025 Gr. Bombay.
Dictated on : 02.01.2025
Transcribed on : 02.01.2025
Signed on : 03.01.2025
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
03.01.2025 At 12.45 P.M. Mrs. Poonam Y. Pawar
UPLOAD DATE AND TIME Stenographer, Grade-III
Name of the Judge (With Court Room
Number)
HHJ SMT. A. V. KASTURE
(C.R.NO.09)
Date of pronouncement of Judgment/
Order
02.01.2025
Judgment/Order signed by P.O. on 03.01.2025
Judgment/Order uploaded on 03.01.2025
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