Final Order 1

Order Details: Copy of Judgment
Pdf Text: 1
Lodged on : 28.08.2019
Registered on : 01.10.2019
Decided on : 04.03.2023
Duration : 03Y 06M 04D
EXHIBIT-15
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
SUIT NO. 2576 OF 2019
( CNR No.MH-CC-01-008974-2019)
SHRI SITARAM CHANNARAM ]
CHAWLA, Indian Inhabitant, ]
Age 55 years, Residing at 105, Raja ]
Milind Society, Behind Tashkand ]
Bhawan Society, Chembur, ]
Mumbai – 400 071. ].. Plaintiff.
V/s.
1. THE STATE OF MAHARASHTRA ]
Through Secretary, Home Department]
Mantralaya, Mumbai. ]
2. BRIHANMUMBAI MUNICIPAL ]
CORPORATION, For Greater Mumbai ]
Mahapalika Marg, Mumbai. ]..Defendants.
Advocate Mrs. Suman P. Bhangare for the plaintiff.
Advocate Mr. Kapse for State/defendant No.1.
Advocate Mrs. Chandramore for BMC/defendant No.2.
CORAM : HIS HONOUR JUDGE
SHRI SITARAM N. PATIL
(C.R.No.09).
DATE : 4th MARCH 2023.
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JUDGMENT
The suit is instituted for the relief of death declaration that
Mr. Chennaram Bidram Chawla 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. Chennaram
Bidram Chawla.
2. It is the case of plaintiff that he is the son of Mr.
Chennaram Bidram Chawla residing with his family. Mr. Chennaram
Bidram Chawla was Cobbler and doing business of selling shoes etc. at
Chembur. Mr. Chennaram Bidram Chawla has gone out of house of
travel by train from Dadar Railway Station to Bikaner, but he did not
reach to Bikaner and could not return back to the home. The plaintiff
and his family member searched him and whereabouts Mr.
Chennaram Bidram Chawla was not known to them. Therefore, the
plaintiff reported the said incident to Mumbai Central Railway Police
Station on 16.12.2011 and gave missing complaint which was Mumbai
Central Railway Police Station recorded with registration numbner as
Missing Person No.08/2011 dated 16.12.2011. and issued Certificate
dated 29.01.2019.
3. It is further case of the plaintiff that his family members
have tried their level best to trace out missing person Mr. Chennaram
Bidram Chawla since 2011, but unable to trace out him and is missing
since 23.11.2011. Thus, Mr. Chennaram Bidram Chawla has not heard
of four last more than 07 years and the mother of the plaintiff also died.
His father Mr. Chennaram Bidram Chawla is deemed as dead as per
Section 108 of the Indian Evidence Act, 1972. The plaintiff served a
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notice as per the provisions of section 80 of the C.P.C. upon the
Government on 25.03.1993.
4. It is further case of the plaintiff that this Court has
jurisdiction to try and entertain the present suit. The plaintiff has not
filed any other suit in respect of present cause of action either in this
Court or in any other Court. The suit is not barred by law of limitation
as it continuous cause of action. Hence, the plaintiff has prayed for
decree.
5. The Defendant No.1 has filed written statement and denied
all the averments made in the plaint. It is submitted that the suit is bad
for want of Statutory Notice under Section 80 of Civil Procedure Code.
The plaint does not disclose any cause of action against the defendants.
therefore, the same be dismissed with costs. Defendant No.2 has not
filed its written statement. Hence, suit proceeded without written
statement of the defendant No.2.
6. I have heard learned advocate for the plaintiff, the learned
advocate for defendant No.1/State and learned advocate for defendant
No.2/BMC.
7. In view of pleadings, issues have been framed on
11.01.2023 vide Exhibit-8 and my findings to them are as stated below
for the following reasons.
Sr.
No.
ISSUES FINDINGS
1 Whether plaintiff is entitled to a decree for
declaration for death of Mr. Chennaram
In the
Affirmative
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Bidram Chawla as per Section 108 of the Indian
Evidence Act ?
2 Whether plaintiff is entitled for a Death
Certificate of Mr. Chennaram Bidram Chawla to
be issued by B.M.C. ?
In the
Affirmative
3 What Order and decree ? As per Final Order
R E A S O N S
AS TO ISSUE NOS.1 AND 2 :
8. As all three points are related with each other. Hence, they
are discussed at once to avoid repetition.
9. The plaintiff has filed her Affidavit in Examination in Chief
at Exhibit97 and deposed on oath and he has reiterated all the
contentions in his plaint in the Affidavit Evidence. He was cross-
examination by the defendant Nos.1 and 2. In cross examination he has
stated that missing person is his father and he was residing with him.
His father was missing since 23.11.2011. His father was left from Dada
and he was not returned. After missing his father, he lodged report to
the Police Station. He tried to search to his father near places of
relatives. Police Station issued Missing Certificate to him He has issued
Notice under section 80 of C.P.C. The plaintiff has admitted that he has
not made an application to defendant No.2/BMC for issuing death
certificate. And he has not issued notice to defendant No.2 prior to
filing this suit.
10. In support of the suit claim, the plaintiff has produced on
record copy of certificate issued by Mumbai Central Railway Police
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Station dated 29.10.2019 (Exh.11), Copy of Notice under section 80 of
C.P.C. (Exh.12) and copy of postal acknowledgement of defendant No.1
(Exh.13). The learned advocate for the plaintiff has filed evidence
closed pursis (Exh.14).
11. The learned advocate for defendant No.1 submitted that
the suit is misconceived, bad-in-law and not maintainable. The suit is
barred by law of limitation. Therefore, it is not maintainable. In reply,
the learned advocate for the plaintiff submitted that Mumbai Central
Railway Police Station has issued Certificate on 29.01.2019. The Suit is
filed on 28.08.2019. Therefore, it is within limitation.
12. 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;
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
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been alive, the burden of proving that he is alive is
shifted to the who affirms it.
13. It is clear that the plaintiff will institute the suit only when
the father of the plaintiff feels that his father cannot be traced out. He
cannot be compelled to institute such suit. Further-more, 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.
14. In view of all above discussion, I have come to the
conclusion that Mr. Chennaram Bidram Chawla is found to be missing
for a period of more than 11 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.
15. The State is under statutory obligation to maintain the
record of birth and death. Therefore, the suit filed against the State is
maintainable. It is proved that the husband of the plaintiff Mr.
Chennaram Bidram Chawla is proved to be not heard of for more than
seven years, I hold that the legal presumption arises that he is dead.
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 2 in the affirmative and in answer to Issue No.
3, I proceed to pass following order.
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ORDER
1. The suit is hereby decreed.
2. It is hereby declared that the father of plaintiff
i.e. Mr. Chennaram Bidram Chawla 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. Chennaram Bidram
Chawla and issue death certificate accordingly.
4. No order as to costs of the suit.
5. Decree be drawn accordingly.
6. The suit stands disposed of accordingly.
(SITARAM N. PATIL)
Judge,
City Civil Court,
Date: 04.03.2023 Gr.Mumbai.
Dictated on: 04.03.2023
Typed on : 06.03.2023
Signed on : 09.03.2023
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
10/03/2022 At 2.30 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
04/03/2023
Judgment/Order signed by P.O. on 09/03/2023
Judgment/Order uploaded on 10/03/2023
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