Final Order 1

Order Details: Copy of Judgment
Pdf Text: 1
MHCC010085532019
Lodged on : 16.08.2019
Registered on : 09.10.2019
Decided on : 06.05.2023
Duration : 03Y 08M 20D
EXHIBIT19
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
SUIT NO. 2695 OF 2019
SHRI RAMNATH ABAJI NAIK ]
Aged 66 years, Occupation: Retired ]
Indian Inhabitant of Mumbai ]
Residing at Room No. 6, Bhagwan ]
Dhuri Chawl, Sambhaji Chawk, ]
New Mill Road, Kurla West, ]
Mumbai – 400 070. ].. Plaintiff.
V/s.
1. THE STATE OF MAHARASHTRA ]
Through Chief Secretary, ]
Mantralaya, Mumbai – 400 023. ]
2. THE MUNICIPAL CORPORATION]
FOR GREATER MUMBAI. ]
(A Body Corporation incorporated ]
under the MCGM Act) having its ]
Head office at Annex Building ]
Mahapalika Marg, C.S.T. ]
Mumbai400 001. ]..Defendants.
Advocate Mr. Dinesh Haldankar for the plaintiff.
Advocate Mr. Khatib for State/defendant No.1.
Advocate Mrs. Chandramore for BMC/defendant No.2.
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CORAM : HIS HONOUR JUDGE
SHRI SITARAM N. PATIL
(C.R.No.09).
DATE : 6th MAY 2023.
JUDGMENT
The suit is instituted for the relief of death declaration that
Mr. Abaji Shivram Naik is presumed to be Civil dead as he has not been
heard of for more than 7 years and directions be given to the
defendants for issuance of death certificate of his father Mr.Abaji
Shivram Naik.
2. It is the case of plaintiff that he is the son of Mr. Abaji
Shivram Naik, who is missing since 24.10.2005 and the plaintiff
informed missing of his father to Kurla Police Station on 25.10.2005
after taking due search for his father. The Crime Branch Mumbai issued
a Certificate dated 21.09.2006 to the plaintiff. None of the relatives of
the plaintiff is knowing anything about the father of the plaintiff nor
any friend of him knowing about living Mr. Abaji Shivram Naik. Kurla
Police Stion issued another certificate dated 06.11.2012 stating that
they did not find plaintiff's father though they took due search. Mr.
Abaji Shivram Naik was 82 years old when he was missing and now
thirteen years are passed.
3. It is further case of the plaintiff that he has issued legal
notice dated 30.04.2019 to the defendant No.2. The death certificate of
father of the plaintiff is required on the record of Revenue Department
and also in other department including SRA and for other legal purpose.
The plaintiff requires the declaration of Civil Death of Abaji Shivram
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Naik.. The suit is not barred by law of limitation. The plaintiff has not
filed any other suit before any other Court on the same cause of action
or reliefs. Hence, the plaintiff has prayed for decree of the suit.
4. The Defendants have not filed written statement. Hence,
suit proceeded without written statement of the defendants.
5. I have heard learned advocate for the plaintiff and the
learned advocate for defendant No.1/State and learned advocate for
defendant No.2/BMC.
6. Considering the pleadings, the following points arise for my
determination and my findings to them are as stated below for the
following reasons.
Sr.
No.
POINTS FINDINGS
1 Whether plaintiff proves that his father is
missing since 24.10.2005 and he was not being
heard for more than seven years by the persons
who ought to have heard of him?
In the
Affirmative
2 Whether plaintiff is entitled to the declaration
and mandatory injunction as prayed for?
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 :
7. As all three points are related with each other. Hence, they
are discussed at once to avoid repetition.
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8. The plaintiff has filed his Affidavit in Examination in Chief
at Exhibit5 and deposed on oath and he has reiterated all the
contentions in his plaint in the Affidavit Evidence and placed on record
documents i.e. Certificate from Crime Branch dated 21.09.2006
(Exh.7), Certificate from Kurla Police Station dated 06.10.2006
(Exh.8), Letter from Kurla Police Station dated 20.09.2006 (Exh.9),
Certificate from Kjurla Police Station dated 06.11.2012 (Exh.10),
Election Card of his father (Exh.11), Electricity Bill of his father
(Exh.12), Death Certificate of his mother (Exh.13), Aadhar Card and
Pan Card of the plaintiff (Exhs.14 and 15), Notice dated 30.04.2019 to
defendant No.2 (Exh.16) and Letter from MCGM 'L' Ward (Exh.17).
The learned advocate for the plaintiff has filed evidence closed pursis
(Exh.18).
9. In the crossexamination of the plaintiff, he has stated that
he tried to search his father near the vicinity and his relatives, but he
was not found. Thereafter, he lodged missing complaint to the Kurla
Police Station on 26.10.2005. The police disclosed that they made
enquiry, but missing person is not found. Hence, issued certificate.
10. 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 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;
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Section 107: Burden proving death of the 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 who affirms it.
Section 108: Burden of proving that the is alive who
has not been heard of for seven years. 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 who affirms it.
11. It is clear that the plaintiff will institute the suit only when
the plaintiff feels that his father cannot be traced out. He cannot be
compelled to institute such suit. Furthermore, 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.
12. In view of all above discussion, I have come to the
conclusion that Mr. Abaji Shivram Naik is found to be missing for a
period of more than 17 years. The legal presumption is attracted under
section 108 of the Evidence Act that his father is dead. I therefore, hold
that the plaintiff is entitled for declaration to that effect.
13. The State is under statutory obligation to maintain the
record of birth and death. Therefore, the suit filed against the State is
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maintainable. It is proved that the father of the plaintiff Mr. Abaji
Shivram Naik is proved to be not heard of for more than seven years, I
hold that the legal presumption arises that he is dead.
14. In the circumstances above, I have come to the conclusion
that plaintiff is entitled to the declaration as prayed for. Accordingly, I
answer points 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 father of plaintiff i.e.
Mr. Abaji Shivram Naik 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
father of plaintiff i.e. Mr. Abaji Shivram Naik 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
concerned person after the appeal period is over.
7. The suit stands disposed of accordingly.
(SITARAM N. PATIL)
Judge,
City Civil Court,
Date: 06.05.2023 Gr.Mumbai.
Dictated on: 06.05.2023
Typed on : 06.05.2023
Signed on : 06.05.2023
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
08/05/2022 At 12.30 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
06/05/2023
Judgment/Order signed by P.O. on 06/05/2023
Judgment/Order uploaded on 08/05/2023
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