Final Order 1

Order Details: Copy of Judgment
Pdf Text: 1
MHCC010085142019
Lodged on : 14.08.2019
Registered on : 10.03.2021
Decided on : 17.07.2023
Duration : 03Y 11M 03D
EXHIBIT-18
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
SUIT NO. 765 OF 2021
MR. ASHWINKUMAR PANACHAND ]
SHAH, Age 68 years, Adult, Indian ]
Inhabitant, Residing at 27, Mahavir ]
Krupa, Maharana Pratap Road, ]
Bhayandar West, Dist. Thane-401101 ].. Plaintiff.
V/s.
1. STATE OF MAHARASHTRA ]
(Represented by Sr. Inspector of ]
Police, L. T. Marg Police Station, ]
Mumbai. ]
2. MUMBAI MUNICIPAL ]
CORPORATION, Ward(A), Fort, ]
Mumbai–400 001. ]..Defendants.
Advocate Mr. Ramprakash Pandey for the plaintiff.
Advocate Mr. Khatib for State/defendant Nos.1.
Advocate Mrs. Chandramore for BMC/defendant No.2.
CORAM : HIS HONOUR JUDGE
SHRI VAIBHAV V. PATIL
(C.R.No.09).
DATE : 17TH JULY 2023.
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JUDGMENT
Present suit is instituted for the relief of death declaration
that Mr. Mahendra Panachnad Shah is presumed to be Civil dead as he
has not been heard of for more than 7 years.
2. It is the case of plaintiff that Mr. Mahendra Panachnad
Shah is his younger brother. On 16.10.2001, the brother of the plaintiff
i.e. Mr. Mahendra Panachnad Shah had been to attend his first shift
duty and thereafter, he had been to M.J. Market Marriage Bureau and
he did not return back and since then he is missing. The plaintiff and his
family members tried to search Mr. Mahendra Panachnad Shah, but he
could not be traced. Hence, the plaintiff had reported regarding
missing of his brother Mr. Mahendra Panachnad Shah to L.T. Marg
Police Station, Mumbai. The police had recorded the complaint being
No.74/2001 dated 17.10.2001 vide its Adult Missing Persons Register.
3. It is further case of the plaintiff that the plaintiff had also
published the missing of his brother Mr. Mahendra Panachnad Shah in
Gujarati and Marathi newspapers. The Sr. Inspector of Police Missing
Persons Bureau, Crime Branch, CID Mumbai also issued the Certificate
dated 20.10.2001. The plaintiff also filed the Form about missing of his
brother to L.T. Marg Police Station. Since the missing of brother of the
plaintiff, he himself and relatives tried to search the Mr. Mahendra
Panachnad Shah, but none had seen him. The plaintiff had again wrote
letter dated 22.06.2012 to the Sr. Inspector of Police, L.T. Marg Police
Station about the said fact and the said police Station issued the
Certificate dated 04.08.2012 certifying that as per police record the said
Mr. Mahendra Panachnad Shah is missing since 16.10.2001 and none
had seen him.
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4. It is further case of the plaintiff that his missing brother is
bachelor and the plaintiff is only legal heir of his missing brother. The
cause of action has arisen in Mumbai. Therefore, this Court has
jurisdiction to entertain, try and dispose of this Suit. The plaintiff has
not filed any of the suit on the same cause of action prior to this in any
of the Court. The plaintiff has sought leave under section 80(2) of the
C.P.C. and prayed for decree of the suit.
5. The Defendant No.1 has filed written statement vide Exh.6
and resisted the suit. It is contended that the suit is misconceived, bad-
in-law and not maintainable. The suit is bad for want of Statutory
Notice Under Section 80 of the C.P.C. The plaint does not disclose any
cause of action. It is further contended that letter of request has been
served on 29.01.2022 and accordingly, the letter has been written to the
police authority for sending report. The complaint about the missing
brother of the plaintiff has been registered under the missing person
diary bearing No.74/2001 dated 17.10.2001 and the Sr, Inspector of
Police, Crime Branch, Missing Person Bureau, Crime Investigation
Department, Mumbai issued Certificate bearing No.467/TVR/2001
dated 20.10.2001. Thereafter, the Investigating Officer tried to find out
the missing person. Ultimately, certificate has been issued on
04.08.2012 mentioning that the for last 21 years the said missing
person could not be found. In the above circumstances, it appears that
the present suit is not filed within a period of 10 years after missing
complaint dated 20.10.2001. Therefore, the present suit is required to
be dismissed on the ground of limitation.
6. The Defendant No.2/BMC has not filed its written
statement. Hence, suit was proceeded without written statement of
defendant No.2.
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7. I have heard learned advocate for the plaintiff and the
learned advocate for defendant No.1/State and the learned advocate for
defendant No.2/BMC.
8. In view of pleadings, issues have been framed on
16.06.2023 vide Exhibit-08 and I have recorded my findings to them for
the reasons stated below.
Sr.
No.
ISSUES FINDINGS
1 Whether the plaintiff proves that he is
entitled to a decree for a declaration that
Mr. Mahendra Panachand Shah is presumed
to be dead as per Section 108 of the Indian
Evidence Act 1972 ?
In the
Affirmative
2 Whether the plaintiffs proves that he is
entitled for a Death Certificate in the name
of Mr. Mahendra Panachand Shah ?
In the
Affirmative
3 Whether defendant No.2 proves that the suit
is bad for statutory notice under section 80
of Civil Procedure Code, 1908 ?
In the
Negative
4 What Order and decree ? As per Final Order
R E A S O N S
AS TO ISSUE NOS.1 AND 2 :
8. The plaintiff has filed his Affidavit of Evidence at Exhibit-9
and deposed on oath and he has reiterated all the contentions in his
plaint in the Affidavit Evidence. He was cross-examined by both the
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advocates of defendant Nos.1 and 2. In cross examination the plaintiff
has deposed that he has filed present suit for issuing Death Certificate
of his missing younger brother Mahendra Panachand Shah. He was
unmarried. He went missing since 16.10.2001 and they searched him
everywhere at the house of relatives. Then on 17.10.2001, they filed
missing complaint at L.T. Marg Police Station. L.T. Marg Police Station
issued Certificate on 04.08.2012 about taking missing entry. He
admitted that he has not issued prior notice to the State or BMC before
institution of the suit.
9. In support of the suit claim, the plaintiff has produced on
record list of documents vide Exh.10. The plaintiff has produced on
record his original Ration Card WA No.444655 (Exh.11), original
Election Identity Card of Mr. Mahendra Panachand Shah (Exh.12),
Gujarat Samachar, Mumbai newspaper dated 18.10.2001 (Exh.13) and
Marathi newspaper Maharashtra Times dated 20.10.2001 (Exh.14). It
shows that the news of missing Mr. Mahendra Panachand Shah was
published. The plaintiff has produced original letter dated 22.06.2012
addressed to Sr. Inspector of Police, L.T. Marg Police Station, Mumbai
400 002 (Exh.15) which shows that his brother has not been traced out
till 22.06.2012. The plaintiff has produced Certificate dated 04.08.2012
issued by L.T. Marg Police Station, Mumbai (Exh.16). It shows that the
plaintiff has filed complaint to L.T. Marg Police Station regarding
missing of his brother vide No.74/2001 dated 17.10.2001. The learned
advocate for the plaintiff has filed evidence closed pursis (Exh.17).
10. The learned advocate for defendant No.1 submitted that
the suit is barred by law of limitation. He further submitted that the
brother of the plaintiff went missing since 16.10.2001. Therefore, he
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ought to have instituted the suit within three years from 16.10.2008 i.e.
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 his
brother since he went missing and the cause of action for institution of
the suit is recurring one and until the plaintiff realized that his brother
cannot be traced, he cannot be compelled to institute the suit for
declaring him dead. Therefore, the suit is within limitation.
11. 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.
12. In the present case, it is evident that the brother of the
plaintiff went missing since 16.10.2001. The plaintiff has deposed on
oath that he took all the efforts to find him. On 17.10.2001, he lodged
missing complaint with police, but police also could not trace him.
Despite of their efforts, they could not find the missing person. The
plaintiff also issued public notice in newspaper. Thus, it is proved from
the evidence produced on record by the plaintiff that his brother was
missing since 16.10.2001 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
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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 missing person is alive. Therefore, in
such circumstances, presumption under section 108 of the Indian
Evidence Act can be raised in this case.
13. In the circumstances above and from the oral evidence,
plaintiff has proved that his brother went missing since 16.10.2001.
The defendants have not disputed the said fact that he is still missing
and his whereabouts are not traced.
14. So far as the contention of the learned advocate for the
defendant No.2 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 i.e. from
16.10.2001. As per contention of the learned advocate for the
defendant No.2, the plaintiff ought to have filed the suit within three
years from 16.10.2001. 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 the suit is barred by law of limitation.
Therefore, submission made by the learned advocate for the defendant
No.2 in this regard cannot be accepted. Thus, it is crystal clear that the
suit is very well within limitation.
15. In view of all above discussion, I have come to the
conclusion that Mr. Mahendra Panachand Shah is found to be missing
since 16.10.2001 i.e. for more than period of seven years. As stated
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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.
16. The State is under statutory obligation to maintain the
record of birth and death. Therefore, in view of above discussions, the
plaintiff is entitled for death certificate of his brother to be issued by the
defendant No.1. Thus, I have come to the conclusion that plaintiff is
entitled to the declaration as prayed for. Accordingly, I answer Issue
Nos. 1 and 2 in the affirmative.
AS TO ISSUE NO.3 :
17. The basic objection of defendant No. 1 is that the notice
under section 80 of the Civil Code Procedure was not issued prior to the
institution of the suit. It is pertinent to note that the purpose of issuance
of notice under section 80 of C.P.C. is for giving an opportunity to the
State to aware of the nature of the claim against State in advance, in
case of any action to be brought against the Government or Public
Officer. However, in the present suit, there is no relief claimed or action
as such brought against the State or Government. Therefore,
considering the nature of the relief in the present case, notice under
section 80 of C.P.C. is not essential and it cannot be said that the suit is
bad for statutory notice under section 80 of the Civil Code Procedure.
Accordingly, I answer Issue No. 3 in the Negative.
18. In view of affirmative findings to Issue Nos.1 and 2 and
negative finding to Issue No.3, I hold that the plaintiff is entitled to the
declaration as prayed for. In the result, I proceed to pass the following
order:
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ORDER
1. The suit is hereby decreed.
2. It is hereby declared that the brother of plaintiff i.e.
Mr. Mahendra Panachand Shah 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
brother of plaintiff i.e. Mr. Mahendra Panachand Shah
and to 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
plaintiff after the appeal period is over.
7. The suit stands disposed of accordingly.
(VAIBHAV V. PATIL)
Judge,
City Civil Court,
Date: 17.07.2023 Gr.Mumbai.
Dictated on : 17.07.2023
Typed on : 17.07.2023
Signed on : 19.07.2023
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
20/07/2023 At 04.45 P.M. MRS. SUPRIYA S.PAWAR
UPLOAD DATE AND TIME NAME OF STENOGRAPhis
Name of the Judge (With Court Room
Number)
HHJ MR. VAIBHAV V. PATIL
(C.R.NO.09)
Date of pronouncement of Judgment/
Order
17/07/2023
Judgment/Order signed by P.O. on 19/07/2023
Judgment/Order uploaded on 20/07/2023
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