Final Order 1

Order Details: Copy of Judgment
Pdf Text: 1
Lodged on : 03.10.2019
Registered on : 14.11.2019
Decided on : 27.01.2022
Duration : 02Y 03M 24D
EXHIBIT-
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
L. C. SUIT NO. 2985 OF 2019
( CNR No.MH-CC-01-010160-2019)
SMT. UMA RAJENDRA GHODAKE ]
Residing at Building No.5/34, ]
Naigaon Police Head Quarters, ]
Naigaon, Mumbai – 400 014. ].. Plaintiff.
V/s.
1. STATE OF MAHARASHTRA ]
Crime Branch, C.G. Department, ]
Mumbai. ]
2. THE MUNICIPAL CORPORATION ]
OF GREATER MUMBAI, a body ]
incorporated under Provision of ]
BMC Act, Having its office situated ]
Through Assistant Municipal ]
Commissioner “D” Ward, ]
Grant Road (West), Nana Chowk, ]
Mumbai – 400 007. ]..Defendants.
Advocate Mr. Sanjay Dhadam for the plaintiff.
Advocate Mr. Kapse for defendant No.1.
Advocate Mrs. Chandramore for defendant No.2/BMC.
CORAM : HIS HONOUR JUDGE
SHRI VIDYADHAR B. KAKATKAR
(C.R.No.09).
DATE : 27th JANUARY, 2022
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JUDGMENT
The Suit is instituted for the relief of declaration that the
husband of Plaintiff that is Rajendra Namdeo Ghodake is civil dead and
for directions to the Defendants to register the death of the husband of
Plaintiff and issue death certificate accordingly. It is further prayed to
incorporate the name of the plaintiff in the record on that basis.
2. It is the case of the Plaintiff that, her marriage took place
with Rajendra Namdeo Ghodake on 02.06.1997. Thereafter, they
resided at Naigaon Police Head Quarters, Building No.5/34, Naigaon,
Mumbai-400034. The plaintiff has got Ration Card and other
documents on that residence. The husband of the plaintiff was working
as Police Constable buckle No.31489 at D.B. Marg Police Station. He
used to attend his duty at 09.00 a.m. and return at 8.30 p.m.
3. It is the case of the plaintiff that her husband went for his
duty on 08.04.2005, but did not return. Plaintiff and her relatives, after
waiting for a day, enquired with relatives and family friends regarding
whereabouts of Rajendra Namdeo Ghodake. However, he was not
found. Hence, complaint came to be lodged on 13.04.2005 at D.B.
Marg Police Station vide A.M.R. No.50/2005. Police issued a certificate
of missing accordingly. Police conducted necessary enquiry, but the
husband of the plaintiff was not found. She has further stated that he
has not been not heard of him for more than last seven years by the
person who naturally ought to have heard of him. Hence, the plaintiff
is constrained to institute the present suit.
4. Defendant No.1 has filed written statement and has stated
that the suit is bad for want of statutory notice under section 80 of the
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Code of the Civil Procedure. There is no cause of action against the
defendants. Defendant No.1 has admitted that the missing complaint
was filed regarding Rajendra Namdeo Ghodake, who was working as
Police Constable, Buckle No.31489 at D.B. Marg Police Station. It is
further contended that the suit is not within limitation. Hence, the
defendant No.1 has prayed for dismissal of the suit. Suit proceeded
without written statement of the defendant No.2.
5. My learned Predecessor has framed issues at Exh.6 and my
findings to them are as stated below for the following reasons.
Sr.
No.
ISSUES FINDINGS
1 Does the Plaintiff prove that her husband
Rajendra Namdeo Ghodake is not heard by
those who would have naturally heard of
him since 08.04.2005 for a period of more
than 7 years, if he would have been alive?
In the
Affirmative
2 Does Plaintiff is entitled for declaration as
sought?
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 :
6. Both these issues are related to each other and they are
discussed at once to avoid the repetition.
7. Plaintiff has deposed on oath at Exhibit-7. Plaintiff did not
examine any other witness. Defendants did not adduce any oral
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evidence. Documents produced on record are discussed at appropriated
places.
8. Plaintiff has produced on record original Character
Certificate and School Leaving Certificate of Rajendra at Exhibit-9 colly..
Plaintiff has filed on record the original marriage invitation card. It
needs to be exhibited. It is at Exhibit-17. Plaintiff has filed on record
the original photograph of the plaintiff and her husband. Plaintiff has
filed on record the original Ration card at Exhibit-10. But the name of
the plaintiff is not appearing therein. The salary slip of Rajendra
Namdeo Ghodake is at Exhibit-11. Certificate issued by the Sr. Police
Inspector of D.B. Marg Police Station is at Exhibit-12. The certificates of
the complaint issued by the Missing Person Bureau is at Exhibits-13 and
14 respectively.
9. Plaintiff has proved all these documents in her oral
evidence. She was cross-examined by the defendant No.1, but nothing
material has come out of the same.
10. It appears from the oral evidence and the documents filed
on record that husband of the plaintiff Rajendra Namdeo Ghodake was
serving in Mumbai Police as police constable Buckle No.31489. He
went missing since 08.04.2005. One Ravindra Bhosale i.e. maternal
uncle of Rajendra Namdeo Ghodake lodged complaint bearing Missing
Register No.15 of 2005 and Station Diary No.50 of 2005. The
Certificate at Exhibit-14 was issued on 04.12.2015 which discloses that
Rajendra Namdeo Ghodake was not found till that day. In the
circumstances, I have come to the conclusion that Rajendra Namdeo
Ghodake is missing since 08.04.2005 and nobody has heard of him till
date. Therefore, the plaintiff is entitled of declaration of his civil death.
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11. Defendant No.1 has stated that a Notice under section 80
was not issued to defendant No.1 prior to the institution of the suit.
However, the roznama dated 06.11.2019 shows that plaintiff was
permitted to institute the suit without issuance of the notice. Therefore,
this objection raised by the defendant No.1 does not hold any merit.
12. So far as another objection regarding limitation is
concerned, it cannot be said that after completion of the seven years
from the date of missing, the plaintiff has to institute the suit within
three years. The plaintiff has stated in the plaint that the cause of action
has arisen till filing of the suit. In the circumstances, it cannot be said
that the suit is barred by limitation.
13. In view of the discussion above, I have come to the
conclusion that the plaintiff is entitled for the relief of declaration that
her husband Rajendra Namdeo Ghodake is civil dead. She is entitled
for mandatory injunction against the defendants to register the death of
Rajendra Namdeo Ghodake and issue his death certificate accordingly. I
answer Issue Nos.1 and 2 in the affirmative and proceed to pass the
following order.
O R D E R
1. Suit No. 2985 of 2019 is decreed.
2. It is hereby declared that the Husband of Plaintiff
i.e. Rajendra Namdeo Ghodake is Civil Dead.
3. Defendants are directed to register the death of
Rajendra Namdeo Ghodake and issue his death
certificate accordingly to plaintiff.
4. Considering the relief granted, parties are
directed to bear their own costs.
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5. Decree be drawn accordingly.
6. Suit No. 2985 of 2019 is disposed of accordingly.
(VIDYADHAR B. KAKATKAR)
Judge,
City Civil Court,
Date:27.01.2022 Gr.Mumbai.
Dictated on: 27.01.2022
Typed on : 27.01.2022
Signed on : 27.01.2022
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
27.01.2022 AT 2.30 P.M. MRS. SUPRIYA S. PAWAR
Name of the Judge (with Court Room
no.)
HHJ SHRI VIDYADHAR B.
KAKATKAR (C.R. No.09)
Date of Pronouncement of
Judgment/Order
27.01.2022
Judgment/Order signed by P.O. on 27.01.2022
Judgment/Order uploaded on 27.01.2022
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