Final Order 1

Order Details: Copy of Judgment
Pdf Text: 1
MHCC010105812019
Lodged on : 17.10.2019
Registered on : 25.11.2019
Decided on : 01.04.2023
Duration : 03Y 05M 16D
EXHIBIT-16
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
SUIT NO. 3095 OF 2019
MR ANAND BHIMRAO UKE ]
Aged 45 years, Occupation: Service ]
Residing at Room No.278/30, ]
Panchsheel Nagar, B.A.D Marg, ]
Wadala (East), Mumbai – 400 037, ]
Son of Missing Person ].. Plaintiff.
V/s.
1. THE STATE OF MAHARASHTRA ]
Through its Commissioner of ]
Missing Person Bureau Departments, ]
Opp. Crawford Market, ]
Mumbai-400 001. ]
AND
1. THE UNDER SECRETARY TO ]
Government Law and Judiciary ]
Departments, Mantralaya, ]
Mumbai – 400 032. ]
2. THE ASST. COMMISSIONER ]
F/North Ward, Municipal Corporation]
Greater Mumbai, Behind Plaza ]
Cinema. ]..Defendants.
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Advocate Mr. Sagar Marathe for the plaintiff.
Advocate Mr. Kapse for State/defendant Nos.1.
Advocate Mr. Khandagale for BMC/defendant No.2.
CORAM : HIS HONOUR JUDGE
SHRI SITARAM N. PATIL
(C.R.No.09).
DATE : 1st APRIL 2023.
JUDGMENT
The suit is instituted for the relief of death declaration that
Mr. Bhimrao Ramji Uke 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 her husband Mr. Bhimrao
Ramji Uke.
2. It is the case of plaintiff that he is the son of Mr. Bhimrao
Ramji Uke, who is missing from the residence. The father of the
plaintiff went out from house by stating that he was going for catering
work at Shivaji Park, Dadar, Mumbai and form same day he did not
return at home till date. The plaintiff has filed missing complaint to the
Sr. Inspector of Police, Wadala Police Station dated 14.05.2010. The
plaintiff gave missing advertisement of his father in Newspaper.
3. It is further case of the plaintiff that the police department
sent messages through television, telgraphs, wireless messages and
newspaper about missing of his father. Thereafter, the plaintiff and his
relatives searched for his father who is missing from more than nine
years, but all in vain. The Wadala police department registered missing
complaint bearing No.22/2010 on 14.05.2010 and the plaintiff demand
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to issue missing certificate of his father. This Court has jurisdiction to
try, entertain and decide the present suit. 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 Defendant No.1 has filed written statement and denied
all the averments made in the plaint. It is submitted that the suit filed
by the plaintiff is not maintainable. The plaintiff has not given Notice
Under Section 80 of the C.P.C. The suit is barred by law of limitation.
Therefore, the same be dismissed with costs. The Defendant No.2 has
not filed its written statement. Hence, suit proceeded without written
statement of the defendant No.2.
5. I have heard learned advocate for the plaintiff, the learned
advocate for defendant No.1/State and learned advocate for defendant
No.2/BMC.
6. In view of pleadings, issues have been framed on
24.02.2023 vide Exhibit-6 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 the year 2010 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
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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.
8. The plaintiff has filed her Affidavit in Examination in Chief
at Exhibit-7 and deposed on oath and he has reiterated all the
contentions in his plaint in the Affidavit Evidence. He was cross-
examination by the defendants. In cross examination he has stated that
his father was missing and he was residing along with him. He was
missing since 03.05.2010. The plaintiff had filed missing complaint to
the police station and searched near vicinity. The plaintiff lodged
complaint at Wadala Police Station, but his father was not found. He
also published news in the news paper. The letter from the Collector of
Nagpur was received to him, hence, the death certificate is required.
He has admitted that the police issued certificate in the year 2018 as the
missing person is not found. The plaintiff had issued notice under
section 80 of the C.P.C.
9. In support of the suit claim, the plaintiff has produced on
record list of documents vide Exh.8. The plaintiff has produced copy of
the Certificate issued by Senior Inspector of Police on 14.05.2020
(Exh.9), Copy of the newspaper (Exh.10), Original copy of the said
application (Exh.11), Copy of the Notice sent by the Collector (Exh.12),
Original Certificate issued by the Senior Inspector of Police of Wadala
Police Station dated 28.01.2019 and his request letter dated 27.12.2018
(Exh.13) and Original Public notices publishes on11.02.2023 in two
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newspapers (Exh.14 colly.). The learned advocate for the plaintiff has
filed evidence closed pursis (Exh.15).
10. The learned advocate for defendant No.1 submitted that
the suit is 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 Wadala Police Station has issued Certificate on
28.01.2019. The Suit is filed on 17.10.2019. Therefore, it is within
limitation.
11. 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
been alive, the burden of proving that he is alive is
shifted to the who affirms it.
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12. It is clear that the plaintiff will institute the suit only when
the father of the plaintiff feels that her 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.
13. In view of all above discussion, I have come to the
conclusion that Mr. Bhimrao Ramji Uke is found to be missing for a
period of more than 12 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.
14. 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 father of the plaintiff Mr. Bhimrao
Ramji Uke is proved to be not heard of for more than seven years, I hold
that the legal presumption arises that he is dead.
15. 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.
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2. It is hereby declared that the husband of
plaintiff i.e. Mr. Bhimrao Ramji Uke 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 husband of plaintiff i.e. Mr. Bhimrao Ramji Uke
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: 01.04.2023 Gr.Mumbai.
Dictated on: 01.04.2023
Typed on : 01.04.2023
Signed on : 01.04.2023
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
01/04/2022 At 5.30 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
01/04/2023
Judgment/Order signed by P.O. on 01/04/2023
Judgment/Order uploaded on 01/04/2023
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