Final Order 1

Order Details: Copy of Judgment
Pdf Text: 1
Lodged on : 02.12.2019
Registered on : 18.02.2021
Decided on : 02.03.2024
Duration : 04 Y : 03 M : 00 D
EXHIBIT-18
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
SUIT NO. 623 OF 2021
(C.N.R. NO. MHCC01-012519-2021)
Mrs. Vijaya Shantaram Jadhav ]
Age 63 years,Occ. Housewife ]
R/a. : B-197, Jijamata Nagar, ]
Kalachowki, Mumbai – 400 033. ] ... Plaintiff.
V/s.
1. The State of Maharashtra, ]
Through Senior Police Inspector, ]
N.M. Joshi Marg Police Station, ]
Lower Parel (E), Mumbai – 400 033. ]
2. Municipal Corporation of ]
Gr. Mumbai ]
2nd floor, Annex Building, Mahpalika ]
Marg, CST, Mumbai – 400 001. ] ...Defendants.
Advocates Mr. Rajesh Dumbare for the plaintiff.
Advocate Mr.Martina Sakpal for Defendant No.1/State.
Advocate Ms. Chandramore for defendant No.2/BMC.
CORAM : HIS HONOUR JUDGE
SHRI VAIBHAV V. PATIL
(C.R.No.09).
DATE : 2nd MARCH 2024.
-- 1 of 8 --
2
JUDGMENT
Present suit is instituted for the relief of death declaration
that Shri. Bhiva Sakharam Mohite is presumed to be Civil dead as he
has not been heard of for more than 7 years.
2. It is the case of plaintiff that plaintiff is the daughter of
Shri. Bhiva Sakharam Mohite who went missing on 07.03.2004 from
Lower Parel, Mumbai. The plaintiff took search of her father but she
could not find him. Hence she lodged missing complaint of her father
on 07.03.2004 with N.M. Joshi Marg Police Station, Mumbai under the
AMR No.18/2004 and the police registered said complaint and recorded
missing report dated 07.03.2004. Thereafter, plaintiff, as well as police
made every possible efforts to trace Shri. Bhiva Sakharam Mohite
however, he could not be found even-after due and diligent search. N.
M. Joshi Marg Police Station issued missing certificate on 29.04.2013.
3. It is further contention of the plaintiff that her father’s
whereabouts are not known for last more than seven years. The cause
of action has arisen at Mumbai. Hence, this Court has jurisdiction to
entertain, try and dispose of this Suit. Hence, the plaintiff has sought
declaration that this Hon’ble Court be pleased to make an order of
presumption of death of Shri. Bhiva Sakharam Mohite who is not heard
of for more than seven years under section 108 of Indian Evidence Act,
1908.
4. The Defendant No. 1 filed written statement vide Exh.06
and resisted the claim of plaintiff. Defendant No.2 failed to file written
statement. Hence, suit came to be proceeded without written statement
of defendant No.2.
-- 2 of 8 --
3
5. In view of pleadings, following issues arises my
determination, I have recorded my findings to each of them for the
reasons stated below.
Sr.
No.
ISSUES FINDINGS
1. Whether the plaintiff proves that Shri.
Bhiva Sakharam Mohite has not been heard
of for more than seven years, since the date
of missing i.e. 07.03.2004 ?
In the
Affirmative
2. Whether the plaintiff is entitled for decree of
declaration that Shri. Bhiva Sakharam
Mohite 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. Bhiva Sakharam Mohite
to be issued by B.M.C.?
In the
Affirmative
4. What Order and decree ? As per Final Order
R E A S O N S
AS TO ISSUE NOS.1 TO 3 :
6. As all the points are related with each other, they are
discussed together to avoid repetition.
7. The plaintiff has filed affidavit of evidence in lieu of
Examination-in-Chief at Exhibit-8. She has deposed on oath and she has
-- 3 of 8 --
4
reiterated all the contentions in the plaint in the Affidavit of Evidence.
She was cross-examined by the advocates of defendants. In cross
examination she has stated that missing person is her father who went
missing from 07.03.2004 from Lower Parel, Mumbai. In her cross-
examination se stated that she had not issued paper notice. Further, she
stated that she did not apply to BMC for getting the Death Certificate of
her father.
8. In support of the suit claim, the plaintiff has produced on
record list of documents vide Exh.09. The plaintiff has produced on
record Copy of certificate dated 29.04.2013 issued by the Senior Police
Inspector of N.M. Joshi Marg Police Station, Deliel Road, Mumbai
(Exh.10), Copy of Permanent Certificate dated 22.05.2015 issued by Sr.
Police Inspector, about the missing of the plaintiff’s father (Exh-11),
Original copy of Ration Card showing name and address of the Bhiva S.
Mohite and other family members (Exh.12), Railway pass issued by
Railway Authority (Exh.13), Copy of the pass book issued by Bank of
Maharahstra, Delisle Road Branch, Lower Parel, Mumbai (Exh.14),
Copies of letter dated 02.04.2016 and 30.01.2020 addressed by
plaintiff’s advocate Mr. Rajesh P. Dumbre to various authorities
including MCGM, Mumbai and copies of postal receipts issued by the
Postal Department (Exh.15 and Exh.16 respectively).
9. The learned advocate for defendants submitted that the suit
is barred by law of limitation. It is further submitted that the father of
the plaintiff went missing since 07.03.2004. Therefore, she ought to
have instituted the suit within three years from the date of cause of
action, to which she failed. Hence, suit is barred by law of limitation. In
reply, the learned advocate for the plaintiff submitted that the plaintiff
-- 4 of 8 --
5
did not hear anything about her father Shri. Bhiva Sakharam Mohite
since 07.03.2004 and the cause of action for institution of the suit is
recurring one and until the plaintiff realized that her father Shri. Bhiva
Sakharam Mohite cannot be traced, she cannot be compelled to
institute the suit for declaring him civil dead. Therefore, the suit is
within limitation. I find substance in the argument advanced on behalf
of the plaintiff. The cause of action for filing the present suit is recurring
one and there is continuous cause of action and therefore, it cannot be
said that the suit is barred by law of limitation. Therefore, submission
made by the learned advocate for the defendants in this regard cannot
be accepted. Thus, it is crystal clear that the suit is very well within
limitation.
10. Here reference needs to be made to section 108 of the
Indian Evidence Act which runs as under;
Section 108: Burden of proving that person is alive
who has not been heard of for seven years - Provided
that 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 person who affirms it.
11. In the present case, it is evident that the father of the
plaintiff went missing since 07.03.2004. The plaintiff has deposed on
oath that she took all the efforts to find her missing father and she also
lodged missing complaint with police, but police also could not trace
him. Despite of her efforts, she could not find the missing person. Thus,
it is proved from the evidence produced on record by the plaintiff that
-- 5 of 8 --
6
her father was missing since 07.03.2004 and despite all the efforts to
find him, he could not be found. Therefore, presumption under section
108 of the Indian Evidence Act comes into play. Section 108 of the
Indian Evidence Act enables the Court under the circumstances stated
therein to draw the statutory presumption that a man is not alive unless
the contrary is proved by the opposite party. In the present case,
nobody has come forward to state that the missing person is alive. Even
the defendants have not raised contention that the missing person is
alive. Therefore, in such circumstances, presumption under section 108
of the Indian Evidence Act can be raised in this case.
12. In view of above documents and the oral evidence, plaintiff
has proved that Shri. Bhiva Sakharam Mohite went missing since
07.03.2004. The defendants have not disputed the said fact that he is
still missing and his whereabouts are not traced. As stated above, the
legal presumption is attracted under section 108 of the Evidence Act
that he 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 of citizens. Therefore, in view of above
discussion, the plaintiff is entitled for death certificate of Shri. Bhiva
Sakharam Mohite to be issued by the defendant No.2.
14. 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 to 3 in the affirmative and in answer to Issue No. 4,
I proceed to pass following order.
-- 6 of 8 --
7
ORDER
1. The suit is hereby decreed.
2. It is hereby declared that the father of the
plaintiff Shri. Bhiva Sakharam Mohite 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 Shri. Bhiva Sakharam Mohite and to issue
death certificate accordingly.
4. No order as to costs of the suit.
5. Decree be drawn up accordingly.
6. The original documents, if any, be returned to
the plaintiff after the appeal period is over.
7. The suit stands disposed of accordingly.
(VAIBHAV V. PATIL)
Judge,
City Civil Court,
Date: 02.03.2024 Gr.Mumbai.
Dictated on : 02.03.2024
Typed on : 02.02.2024
Signed on : 02.03.2024
-- 7 of 8 --
8
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
04.03.2024 At 5.30 P.M. Ms. Manisha Hirole
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (With Court Room
Number)
HHJ MR. VAIBHAV V. PATIL
(C.R.NO.09)
Date of pronouncement of Judgment/
Order
02.03.2024
Judgment/Order signed by P.O. on 04.03.2024
Judgment/Order uploaded on 04.03.2024
-- 8 of 8 --