Final Order 2

Order Details: Copy of Judgment
Pdf Text: 1
MHCC010085132019
Lodged on : 14.08.2019
Registered on : 23.08.2019
Decided on : 28.07.2023
Duration : 03Y 11M 14D
EXHIBIT-15
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
SUIT NO. 2381 OF 2019
HARENDRA MAGANLAL VORA, ]
Male, Adult, Aged about 70 years, ]
Occupation : Business, Hindu, ]
Indian Inhabitant of Gujarat State, ]
Residing at Nilamber Bunglow No.2, ]
Near Vasna Jakat Naka, ]
Vadodara – 390015, Gujarat State; ]
and also Temporarily residing at ]
Flat No.24, Bhaweshwar Shikhar, ]
Building No.2, Kanchan Junga ]
Co-operative Housing Society Ltd., ]
R.B. Mehta Marg, Ghatkopar (East), ]
Mumbai 400 077. ].. Plaintiff.
V/s.
1. THE STATE OF MAHARASHTRA ]
Through the Government Pleader’s ]
Office, City Civil Court, Mumbai. ]
2. THE SENIOR INSPECTOR OF ]
POLICE, Missing Persons Bureau, ]
Crime Branch, Having its office at ]
the Office of the Commissioner of ]
Police, 92, Dr. Dadabhai Naoroji ]
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Road, Police Colony, Dhobi Talao, ]
Chhatrapati Shivaji Terminus Area, ]
Fort, Crowfard Market, ]
Mumbai – 400 001. ]
3. THE SENIOR INSPECTOR OF ]
POLICE, Pant Nagar Police Station, ]
Having its office at Swami Samarth ]
Marg, Pant Nagar, Savitribai Phule ]
Junction, Near Ghatkopar Bus Depot,]
Ghatkopar (East), Mumbai – 400075.]
4. THE MUNICIPAL CORPORATION ]
OF GREATER MUMBAI, A body ]
incorporated under the Provisions of ]
the Mumbai Municipal Corporation ]
Act, 1888 having its head office at ]
Mahapalika Marg, Fort, ]
Mumbai-400 001, through the ]
Assistant Municipal Commissioner, ]
“N” Ward, Municipal Corporation of ]
Greater Mumbai, Annexe Building, ]
Jawahar Road, Near Ghatkopar ]
Railway Station, Ghatkopar (E), ]
Mumbai – 400 077. ]..Defendants.
Advocate Mr. Y.S. Bhate alongwith Advocate Mr. Anil Bagwe for the
plaintiff.
Advocate Mr. Khatib for State/defendant Nos.1 to 3.
Advocate Mrs. Chandramore for BMC/defendant No.4.
CORAM : HIS HONOUR JUDGE
SHRI VAIBHAV V. PATIL
(C.R.No.09).
DATE : 28TH JULY 2023.
JUDGMENT
Present suit is instituted for the relief of death declaration
that Dinesh Ishwarlal Vora is presumed to be Civil dead and for giving
directions to the defendants for issuance of death certificate.
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2. It is the case of plaintiff that he is the cousin brother of
Dinesh Ishwarlal Vora. Dinesh Ishwarlal Vora had left the house due to
dispute with his father and did not return back to Mumbai. He was not
heard of either by the deceased Ishwarlal Tribhovandas Vora who was
his father or any of his relatives. The plaintiff is not aware about any
missing complaint lodged with the Police by the father of Dinesh
Ishwarlal Vora or their relative after the disappearance of Dinesh
Ishwarlal Vora. Dinesh Ishwarlal Vora had left his father more than two
decades ago and he does not have any information of his whereabouts
and also about his family. Thus, the said Dinesh Ishwarlal Vora might
be missing since 1993. There is no record or any other document,
which would show that any complaint was filed by his father during his
life time in respect of his missing son Dinesh Ishwarlal Vora.
3. It is further contention of the plaintiff that he had
unsuccessfully tried to find out the whereabouts of Dinesh Ishwarlal
Vora since the death of his deceased father on 22.10.2013. The plaintiff
had issued a Public Notice in the daily newspaper viz. “Free Press
Journal” in English and another in “Janma Bhoomi” in Gujarathi
language respectively on 20.01.2017 stating therein about the filing of
the Testamentary Petition No.1405 of 2014 in respect of the Will dated
03.02.2013 of the father of Dinesh Ishwarlal Vora and also to know
about the whereabout of the missing son. However, the plaintiff had
not received any news or information from any one in respect of the
said Public Notice. Thereafter, the plaintiff through his advocate’s letter
dated 01.03.2017, addressed to Pant Nagar Police Station, Ghatkopar
asked for furnishing certificate about the missing Dinesh Ishwarlal
Vora. The said police station failed to furnish any information to the
plaintiff.
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4. It is further contention of the plaintiff that he has made so
many efforts to find out the whereabouts of Dinesh Ishwarlal Vora after
passing of the order dated 10.07.2019 in Miscellaneous Petition no.76
of 2018 in the Testamentary Petition No.1405 of 2014. Now, it is not
possible to find out the said missing Dinesh Ishwarlal Vora after such
efforts. The entire cause of action has arisen in Mumbai on 22.10.2013.
Therefore, this Court has jurisdiction to try and entertain the suit.
Hence, prayed for decree of the suit.
5. The defendants Nos.1 to 4 though appeared, they failed to
file their written statement. Hence, suit was proceeded without written
statement of the defendants Nos.1 to 4.
6. Perused plaint and documents filed by the plaintiff. I have
heard learned advocates for both the sides.
7. Considering the plaint, documents produced on record and
oral evidence of the Plaintiff, following points arise for my
determination and I have recorded my findings to each of them for the
reasons stated below.
Sr.
No.
POINTS FINDINGS
1 Whether the plaintiffs are entitled to a decree
for declaration that Dinesh Ishwarlal Vora is
presumed to be dead as per Section 108 of the
Indian Evidence Act 1972 ?
In the
Affirmative
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2 Whether plaintiff proves that he is entitled for
a Death Certificate in the name of Dinesh
Ishwarlal Vora ?
In the
Affirmative
3 What Order and decree ? As per Final Order
R E A S O N S
AS TO POINT NOS.1 TO 3 :
8. As all three points are related with each other, they are
discussed together to avoid repetition.
9. The plaintiff has filed his Affidavit in lieu of the
Examination-in-Chief at Exhibit-2 and deposed on oath and he has
reiterated all the contentions in the plaint in his Affidavit of Evidence.
He was cross-examined by both the advocates for defendants. In cross
examination he has deposed that Ishwarlal Tribhovandas Vora was his
uncle and he had one son by name Dinesh Ishwarlal Vora. His uncle
died in the year 2013. Dinesh Ishwarlal Vora is his cousin and he is
missing since many years. He is missing prior to the death of his uncle
in 2013. He was missing from his residence in Ghatkopar. His uncle did
not try to find him out and he also did not file complaint with police.
Plaintiff stated that he had not given notice under section 80 of C.P.c. to
the Government prior to the institution of the suit. In cross examination
he has admitted that he had not issued prior notice to the BMC before
filing of the suit under section 527 of BMC Act and had not filed
application in Corporation for getting Death Certificate of Dinesh
Ishwarlal Vora.
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10. In support of the suit claim, the plaintiff has produced on
record list of documents vide Exh.8. The plaintiff has produced
Certified copy of the Miscellaneous Petition No.76/2018 in
Testamentary Petition No.1405/2014 alongwith the annexures affirmed
by the plaintiff on 02.04.2018 and lodged on 04.04.2018 (Exh.9),
Certified Copy of the Additional Affidavit dated 30.03.2019 along with
the annexures filed by the plaintiff (Exh.10), Certified Copy of the
Additional Affidavit dated 11.04.2019 along with the annexures filed by
the Senior Inspector of Police of Pant Nagar Police Station, Ghatkopar
(East), Mumbai (Exh.11), Certified Copy of the Additional Affidavit
dated 06.07.2019 along with the annexures filed by the plaintiff
(Exh.12) and (Exh.13), Certified Copy of vartious orders passed in
Misc. Petition No.76/2018 in Testamentary Petition No.1405/2014
including common conditional order (Exh.14). The learned advocate for
the plaintiff has filed evidence closed pursis (Exh.15).
11. The learned advocate for defendants submitted that the suit
is barred by law of limitation. He further submitted that the Dinesh
Ishwarlal Vora went missing prior to the death of his uncle in 2013 i.e.
father of missing person. Therefore, plaintiff ought to have instituted
the suit within three years from the date of cause of action, to which he
failed. Hence, suit is barred by law of limitation. In reply, the learned
advocate for the plaintiff submitted that the plaintiff did not hear
anything about Dinesh Ishwarlal Vora since 2013 and the cause of
action for institution of the suit is recurring one and until the plaintiffs
realized that his cousin brother cannot be traced, he cannot be
compelled to institute the suit for declaring him dead. Therefore, the
suit is within limitation.
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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 cousin brother of
the plaintiff went missing prior to the death of his uncle in 2013 i.e.
father of missing person. The plaintiff has deposed on oath that he took
all the efforts to find him. Despite of his efforts, he could not find
Dinesh Ishwarlal Vora. Thus, it is proved from the evidence produced on
record by the plaintiff that his cousin brother was missing prior to the
death of his uncle in 2013 i.e. father of missing person 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 defendant has 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.
14. In the circumstances above and in view of above
documents and the oral evidence, plaintiff has proved that his cousin
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brother went missing prior to the death of his uncle in 2013 i.e. father
of missing person. The defendants have not disputed the said fact that
he is still missing and his whereabouts are not traced.
15. So far as the contention of the learned advocate for the
defendants regarding the bar of limitation is concerned, it is pertinent
to note that the cause of action for filing the present suit arose after
lapse of seven years from the date of missing person. As per contention
of the learned advocate for the defendants, the plaintiff has not filed
suit within limitation. However, 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.
16. In view of all above discussion, I have come to the
conclusion that Dinesh Ishwarlal Vora is found to be missing prior to
the death of his father in 2013 i.e. for more than period of seven years.
As stated above, the legal presumption is attracted under section 108 of
the Evidence Act that he 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 of citizens. Therefore, in view of above
discussions, the plaintiff is entitled for death certificate of his cousin
brother to be issued by the defendants.
18. In the circumstances above, I have come to the conclusion
that plaintiff is entitled to the declaration as prayed for. Accordingly, I
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answer point Nos. 1 and 2 in the affirmative and in answer to point No.
3, I proceed to pass following order.
ORDER
1. The suit is hereby decreed.
2. It is hereby declared that the cousin brother of the
plaintiff Dinesh Ishwarlal Vora 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
Dinesh Ishwarlal Vora and issue death certificate
accordingly.
4. No order as to costs of the suit.
5. Decree be drawn accordingly.
6. The original documents, if any be returned to the
plaintiffs after the appeal period is over.
7. The suit stands disposed of accordingly.
(VAIBHAV V. PATIL)
Judge,
City Civil Court,
Date: 28.07.2023 Gr.Mumbai.
Dictated on : 28.07.2023
Typed on : 05.08.2023
Signed on : 09.08.2023
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER.” (Corrected as per Roznama dated 17.08.2023.)
09/08/2023 At 02.45 P.M. MRS. SUPRIYA S.PAWAR
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
28/07/2023
Judgment/Order signed by P.O. on 09/08/2023
Judgment/Order uploaded on 09/08/2023
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