Final Order 1

Order Details: Copy of Judgment
Pdf Text: 1
Presented on : 22.10.2019
Registered on : 02.01.2020
Decided on : 06.08.2024
Duration : 04 Y : 09 M : 15 D
EXHIBIT-15.
IN THE BOMBAY CITY CIVIL COURT AT MUMBAI
L.C. SUIT NO. OF 10 OF 2020
(C.N.R.No.MHCC01-010761-2019)
Smt. Beryl Merwyn Fernandes, ]
R/a. : 30, Chuim- Village, ]
Khar-Danda, Near Samudra Hotel, ]
Khar (W), Mumbai. ] …. Plaintiff.
V/s.
1. The State of Maharashtra ]
Through its Chief Secretary, State of Maharashtra,]
General Administration Department, ]
Mantralaya, Mumbai – 400 032 ]
2. The Municipal Corporation of Gr. Mumbai. ]
Having its office at Mahapalika Building, ]
Mahapalika Marg, Fort, Mumbai – 400 001. ] ..Defendants.
Appearance :
Learned Adv. Enail Shaikh for the plaintiff.
Learned Adv. Mr. Kapse for defendant No.1/State.
Learned Adv. Mr. Rahul Rathod for defendant No. 2/BMC.
CORAM : HIS HONOUR JUDGE
SHRI. V. S. KHOT
(C.R.NO.09)
DATE : 6th AUGUST, 2024
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Judgment 2 L.C. Suit No.10-2020
JUDGMENT
(delivered on 6th August, 2024)
01. This suit is instituted for declaration that the missing
person is dead and for issuance of death certificate of missing person
under the provisions of Section 108 of the Indian Evidence Act.
02. The facts of the case can be stated as under :
The plaintiff is retired and residing at 30, Chuim- Village, Khar-
Danda, Near Samudra Hotel, Khar (W), Mumbai. She is cousin of one
Deswit Thomas Pereira. Her cousin on 02.10.2002 at about 10.35 A.M.
while coming down from the over bridge at platform No.1 of Dadar
Railway Station, Mumbai turned missing in the crowd. The plaintiff
took the search of her cousin and she could not trace his whereabouts.
Finally, she approached to the police. Police station Mumbai Central
Railway registered the missing complaint No.19/2002 and tried to
search the missing person. Police finally issued the certificate that
missing person is still missing. The plaintiff want the death certificate
of missing person for administrative purposes. She left with no
alternative to file suit for declaration and issuance of death certificate.
The plaintiff prayed for the same.
03. After institution of the suit, the suit summons came to be
issued to the defendants. The defendants appeared in response to the
suit summons. The defendant No.1 filed the written statement and
contended that suit is bad for want of statutory notice under Section
80 of the C.P.C. The missing person turned missing at Dadar Railway
Station. The police tried to search at their level best but could not
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Judgment 3 L.C. Suit No.10-2020
trace him. The suit is misconceived and not maintainable. It does not
reveal any cause of action. The suit is liable to be dismissed.
04. In view of rival contentions of the suitor my learned
predecessor framed issues vide Exh.06 and I reproduce the said issues
which are described below alongwith reasons for findings as
mentioned hereinafter.
Sr. no. Issues Findings
1. Whether the plaintiff proves that Mr.
Deswit Thomas Pereira has not been
heard of for seven years, since
02.10.2002?
In the
affirmative.
2. Whether the plaintiff is entitled for
decree of declaration that Mr. Deswit
Thomas Pereira is presumed to be dead
as per Sec. 108 of the Indian Evidence
Act?
In the
affirmative.
3. Whether the plaintiff is entitled for a
Death Certificate of Shri. Deswit Thomas
Pereira to be issued by B.M.C.?
In the
affirmative.
4. What order ? As per final
order.
REASONS
05. This suit is instituted by the plaintiff, therefore, burden of
proof under Section 101 of Indian Evidence Act lies upon her and in
order to discharge the said burden, the plaintiff examined herself. The
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Judgment 4 L.C. Suit No.10-2020
plaintiff relied upon the following documents viz., Aadhar card
(Exh.09), original death certificate of Mary Pereira (Exh.10), original
receipt and certificate issued by Mumbai Central Railway Police
Station, Mumbai (Exh.11), original times of India Newspaper dated
21.03.2003 alongwith photographs and other details of missing person
(Exh.12), original letter dated 21.07.2016 (Exh.13). The plaintiff filed
evidence close pursis vide Exh.14. The plaintiff in her oral evidence
deposed that missing person was her cousin. He turned missing on
Dadar Railway station. He could not be traced by her as well as police.
She approached the police to register the missing complaint and issue
certificate that cousin of plaintiff is still missing. The other side cross-
examined the plaintiff wherein she admitted that she lodged the
complaint with police but did not issue notice to State before filing the
suit. She published notice in newspaper. She did not approach to BMC
before filing the suit.
06. The oral evidence of plaintiff as well as documents makes
it clear that the missing person was cousin of plaintiff and he turned
missing in the year 2002. Plaintiff as well as police could not trace the
missing person. The period of 7 years or more has been elapsed from
the date of missing of cousin of plaintiff. There is a provision under
Section 108 of the Indian Evidence Act that missing person can be
declared dead, if, he is missing for 7 years or more. The plaintiff is
entitled for the declaration as prayed.
07. The plaintiff is also praying for issuance of death
certificate. She never approached to the BMC for issuance of death
certificate. As far as the death certificate is concerned, the plaintiff is
entitled to receive it under the patronage of Section 108 of the Indian
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Judgment 5 L.C. Suit No.10-2020
Evidence Act. The plaintiff has completed all the formalities and
entitled to the relief claimed. The plaintiff has not served the notice
under Section 80 of C.P.C. and Section 527 of MCGM Act for prior to
institution of the suit but plaintiff is not challenging the action or act
of any public servant, therefore, the suit is not bad for want of above
notices. The plaintiff is also entitled for the death certificate under
Section 108 of the Indian Evidence Act under the presumption
mentioned in Section 108 of the Indian Evidence Act. In view of above
said reasons, my answer to issue Nos. 1 to 3 are in affirmative. In view
of circumstances, the parties to bear their own costs. Finally, I am
inclined to pass following order resulting in grant of declaration and
issuance of death certificate. Hence, the following order :
ORDER
1. The suit No.10 of 2020 is hereby decreed.
2. It is hereby declared that cousin of plaintiff by name Deswit
Thomas Pereira is dead (Civil death) under the provision of 108
of Indian Evidence Act.
3. The death certificate of cousin of plaintiff by name Deswit
Thomas Pereira be issued under Section 108 of Indian Evidence
Act (presumption of Civil Death).
4. No any order as to costs.
5. The decree be drawn up accordingly.
(V. S. KHOT)
Judge,
City Civil Court,
Date: 06.08.2024 Gr. Bombay.
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Judgment 6 L.C. Suit No.10-2020
Dictated on : 06.08.2024
Transcribed on : 06.08.2024
Signed on : 07.08.2024
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
07.08.2024 At 04.50 P.M. Ms. Manisha D. Hirole
UPLOAD DATE AND TIME Stenographer, Grade-I
Name of the Judge (With Court Room
Number)
HHJ SHRI. V. S. KHOT
(C.R.NO.09)
Date of pronouncement of Judgment/
Order
06.08.2024
Judgment/Order signed by P.O. on 07.08.2024
Judgment/Order uploaded on 07.08.2024
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