Final Order 3

Order Details: Copy of Judgment
Pdf Text: 1 L.C. Suit No.3368/2019
Judgment.
MHCC010128362019
Presented on : 28.11.2019
Registered on : 16.12.2019
Decided on : 21.07.2026
Duration : 06 Y 07M 24 days.
IN THE BOMBAY CITY CIVIL COURT AT MUMBAI
S.C. SUIT NO. 3368 OF 2019.
Exhibit No.: 36
1.
2.
3.
Geeta Krishnakant Pantwalawalkar,
Age: 55 years, Occupation: Housewife,
Dr. (Ms.) Komal Krishnakant Pantwalawalkar,
Age: 31 years, Occupation : Doctor,
Mr. Gautam Krishnakant Pantwalawalkar,
Age: 26 years, Occupation : Student,
All are residing at D-202, Gurukrupa CHS, Opp. Plaza
Cinema, Dadar (West), Mumbai – 28. …Plaintiffs.
VERSUS
1
2.
1.
2.
Mr. Krishnakant Ganpat Pantwalawalkar,
Age: 61 years, Occupation : Business,
R/at : D-202, Gurukrupa CHS, Opp. Plaza Cinema,
Dadar (West), Mumbai – 28. (Deleted).
The Collector of Mumbai,
Old Custom House, Mumbai-01. (since deleted)
State of Maharashtra,
Through the Office of the Govt. Pleader,
City Civil Court, Mumbai.
The Officer-in-charge,
Through Shivaji Park Police Station
Having its address at Ram Niwas, Ram Maruti Road,
]
]
]
]
]
]
]
]
]
]
]
-- 1 of 11 --
2 L.C. Suit No.3368/2019
Judgment.
3.
Near Sena Bhavan, Dadar (W), Mumbai-28.
The Municipal Corporation of Gr. Mumbai,
A Govt. Body, having its address at ‘G’ North Ward
Office, Harishchandra Yelve Marg, Behind Plaza
Cinema, Dadar (W), Mumbai-28. Defendants.
CORAM : HIS HONOUR JUDGE
SHRI. A.B. HODAWADEKAR
C.R.NO..
: 08.
DATE : 21.07.2026.
APPEARANCES :
Ld. Adv. Uma Kshirsagar-Wagle for the plaintiff.
Ld. Adv. Aslam Tadvi for defendant/BMC.
Ld. Adv. Amit Kapse for defendant/State.
JUDGMENT
1. The plaintiff has filed this suit for declaration of civil death
of Mr. Krishnakant Ganpat Pantwalawalkar, who has gone missing
since 20.07.2010 and for direction to issue death certificate and other
reliefs.
CASE OF THE PLAINTIFF, IN BRIEF, IS AS FOLLOWS :-
2. Plaintiff No.1 is wife of Krishnakant Ganpat Pantwalawalkar.
Plaintiff Nos.2 and 3 are respectively daughter and son of plaintiff
No.1. Krishnakant is missing since 20.07.2010, therefore,the plaintiffs
are unable to take any steps in respect of his affairs, hence, this suit
for declaration and consequential reliefs.
3. Plaintiff No. 1 was married with Krishnakant on 21.12.1986.
By the wedlock with said Krishnakant, they have two children i.e.
-- 2 of 11 --
3 L.C. Suit No.3368/2019
Judgment.
plaintiff Nos.2 and 3. Said Krishnakant was running garment business
and the plaintiffs were initially residing at Kankavli. Thereafter, they
shifted to Mumbai in the year of 2001, but the building, where they
were residing was redeveloped and they were allotted flat therein.
Defendant No.1 is the State of Maharashtra. Defendant No.2 is Shivaji
Park police station. Defendant No.3 is MCGM. The plaintiffs further
submitted that since 2010, said Krishnakant is missing and never
returned till the date. She registered complaint with Shivaji Park
Police Station vide register No.24/2010, but Krishnakant could not be
found. Thereafter, plaintiff No.1 filed Criminal Writ Petition No.
2377/2010 for transfer of the investigation and the said petition was
disposed off on 12.08.2010.
4. On 27.07.2010 plaintiff No.1 had issued advertisement of
missing person in ‘Loksatta’ newspaper. Thereafter, on 11.08.2010, Sr.
Inspector of Police of the Missing Persons Cell, Crime Branch issued
certificate of the missing person. The information of missing person
was also telecasted on the television, despite that said Krishnakant
was not found.
5. On 30.05.2019, Shivaji Park Police station issued Shodh
Ahwal/final report stating therein that the said Krishnakant was not
traced till that date. The plaintiffs suffered with mental and financial
hardship due to disappearance of said Krishnakant. Despite all
possible efforts, said Krishnakant remained untraceable, hence, this
suit for declaration and directing defendant No.3 to issue death
certificate of said Krishnakant. Due to urgency of the matter, the
-- 3 of 11 --
4 L.C. Suit No.3368/2019
Judgment.
plaintiffs did not send statutory notice under section 80 of the Civil
Procedure Code, 1908 (CPC) to the defendants.
6. Defendant Nos.1 and 2 (though mentioned in docket of
wrtitten statement defendant No.3) filed written statement at Exhibit-
21. These defendants submitted that on 21.07.2010, missing
complaint bearing No.24/2010 was filed. As per the said complaint,
due to some quarrel between said Krishnkant and plaintiff Nos.1 and
3, Krishnakant left the house and never returned back. On
11.08.2010, Sr. Inspector of Police of Missing Persons Cell, Crime
Branch issued certificate of the missing person and thereafter, on
30.05.2019, final report was given as regards the missing person is
untraceable. The present suit is filed beyond the limitation period and
prayed for dismissal of the suit.
7. As defendant/BMC failed to file written statement, the
matter proceeded without written statement of defendant/BMC i.e.
defendant No.3.
8. Considering the rival submissions my learned predecessor
framed the issues at Exhibit-22. Those issues along-with my findings
thereon, with reasons are as follows:
SR.
NO ISSUES FINDINGS
1. Whether the plaintiffs prove that Mr. Krishnakant
Ganpat Pantwalawalkar went missing from
20.07.2010 ?
In
Affirmative
-- 4 of 11 --
5 L.C. Suit No.3368/2019
Judgment.
2. Whether the plaintiffs prove that Mr. Krishnakant
Ganpat Pantwalawalkar was not traceable in spite
of all efforts by the plaintiffs and police?
In
Affirmative
3. Whether the plaintiffs prove that Mr. Krishnakant
Ganpat Pantwalawalkar is not heard of 7 years by
those who would naturally have heard of him, if
he had been alive?
In
Affirmative
4. Whether the plaintiffs are entitled to reliefs
claimed?
Partly
affirmative
5. What order and decree ? As per
final Order
9. In order to prove the case and discharge the burden casted
upon the plaintiffs, they have examined plaintiff No.1 as P.W.1. Apart
from the oral evidence, the plaintiff relied upon marriage registration
extract at Exhibit-27 and 28, birth certificates of plaintiff Nos.2 and 3
at Exhibit-29 and 30, newspaper advertisements at Exhibit-31 and 32,
missing person certificate at Exhibit-33, Shodh Ahwal/final report
dated 30.05.2019 at Exhibit-34. The plaintiffs filed evidence close
pursis at Exhibit-35 and the defendants endorsed thereon that they do
not want to lead evidence. Thus, there is no evidence on behalf of
defendants.
REASONS
AS TO ISSUE NOS. 1 TO 4:
10. Heard arguments of Ld. Adv. Uma Kshirsagar-Wagle for the
plaintiffs. She argued that the plaintiffs have succeeded to prove that
-- 5 of 11 --
6 L.C. Suit No.3368/2019
Judgment.
Krishnakant is not been heard for more than 7 years till date of filing
of this suit, by those persons who would naturally have heard of him
if he was alive. According to her, in view of section 108 of the Indian
Evidence Act, 1872 r/w 34 of Specific Relief Act, 1963, the plaintiffs
are entitled for the declaration, claimed by them.
11. Per contra, Adv. Amit Kapse on behalf of defendant/State
argued that no prior notice under section 80 of the Civil Procedure
Code, 1908 (CPC) has been served on the defendants. According to
him, the suit is not tenable as barred by limitation. Ld. Advocate for
defendant/BMC objected the suit on the ground that no prior notice
under section 527 of the MMC Act and prayed for dismissal of the
suit.
12. I thoughtfully considered the rival contentions. It is
necessary to advert to the oral evidence of the plaintiff No.1 Geeta
(PW-1). In her affidavit of examination-in-chief, she deposed that her
husband Krishnakant, who was of age 61 years, left the house on
20.07.2010, without informing anyone and never returned back or
found despite of efforts of the plaintiffs to trace him out. Missing
complaint was filed on 21.07.2010. Thereafter, final report is received
(Exhibit-34). She also deposed that she has produced missing
certificate issued by the Sr. Inspector of Police of Missing Persons Cell,
Crime Branch dated 11.08.2010, intimating this witness that on her
complaint dated 21.07.2010, missing complaint was registered
bearing No.24/2010. On behalf of defendants, this witness is cross-
examined. In her cross-examination, P.W.-1 admitted that she had not
-- 6 of 11 --
7 L.C. Suit No.3368/2019
Judgment.
given prior notice to BMC under section 527 of the BMC Act.
13. Considering the evidence of plaintiff No.1, the fact that her
husband Krishnakant is missing for more than 7 years, is remained
unshattered. Moreover, documentary evidence including missing
certificate at Exhibit-33, final report of Sr. PI at Exhibit-34 supports
the oral contentions of P.W. 1 that her husband Krishnakant is missing
and despite bonafide efforts to trace him out, he could not be found
or whereabouts were not known by the plaintiffs. Thus, the plaintiffs
are succeeded to prove that Mr. Krishnakant Ganpat Pantwalawalkar
is missing since 20.07.2010 and not being traced out or heard by
those who would naturally have heard if he was alive. So
presumption under section 108 of Indian Evidence Act,1872, comes in
picture in favour of the plaintiff.
14. So far as objection raised by the defendants that, no prior
notice under section 80 of CPC to the Government or under section
527 of the MMC Act to BMC, if plaint is perused, no substantive relief
is claimed against these defendants. The main relief claimed in the
plaint is declaration of civil death of Mr. Krishnakant, who went
missing for more than 7 years. Only the Civil Court can grant this
relief. Other reliefs are based on this relief. The object of giving notice
under section 80 is to afford the government or public officer an
opportunity to examine the nature of the claim to settle it. So even if,
the prior notice under section 80 was given to the government,
government would not be in a position to settle the claim, as
ultimately it is for the Civil Court to decide the civil death. Therefore,
-- 7 of 11 --
8 L.C. Suit No.3368/2019
Judgment.
want of giving notice under section 80 in matter at hand will not fatal
to the case of the plaintiffs. Moreover, it would be appropriate to refer
the judgment of the Hon'ble Supreme Court in Raghunath Das Vs.
Union of India, wherein Hon'ble Supreme Court held as follows :
“ The object of the notice contemplated by section 80, CPC
is to give to the concerned Government and public officers
opportunity to reconsider the legal position and to make
amends or settle the claim, if so advised without litigation.
The legislative intention behind that section is that public
money and time should not be wasted on unnecessary
litigation and the Government and the public officers
should be given a reasonable opportunity to examine the
claim made against them lest they should be drawn into
avoidable litigation. The purpose of law is advancement of
justice. The provisions in section 80 are not intended to be
used as booby trap against ignorant and illiterate persons.”
15. As such, want of notice under section 80, according to me, is
not fatal in facts of the present case. To my mind, the same analogy
will be applicable to the notice under section 527 of the MMC Act.
16. Defendant Nos.1 and 2 have taken objection on the ground
of limitation. Though, issue is not framed to this regard, parties are
well aware about the case of rival sides. It be borne in mind that for
civil death declaration, whereabouts of person should be not known
for 7 years or more. Said Krishnakant is missing since 20.07.2010.
Therefore, till 19.07.2017, no cause of action to file any suit.
‘Shodh
-- 8 of 11 --
9 L.C. Suit No.3368/2019
Judgment.
Ahawal’/final report is of 30.05.2019. Hence, suit filed in year 2019 is
well within the period of limitation.
17. In view of aforesaid discussion, as there is no reason to
disbelieve the plaintiffs’ claim, I answer issue Nos.1 to 3 in the
affirmative. So far as the reliefs are concerned, the plaintiffs have
prayed for declaration that Krishnakant is dead so also, direction to
BMC to issue the death certificate of him and other reliefs. In view of
aforesaid discussion the plaintiffs are only entitled for declaration that
Krishnakant is dead but not entitled for direction, which is prayed by
the plaintiffs against BMC. The reason is that there is no fix date of
death. Moreover, in view of provisions of Birth and Death Registration
Act, no such direction can be issued. The prayer for direction to
Shivaji Park Police station to issue missing report is also unwarranted.
The prayers to that extent cannot be granted. Hence, I answer issue
No. 4 as partly affirmative.
18. In the light of findings of issue Nos.1 to 4, the suit deserves
to be partly decreed. Hence, in answer to issue Nos.5, I pass the
following Order :
-: O R D E R :-
1. The suit is partly decreed.
2. It is hereby declared that Krishnakant Ganpat
Pantwalawalkar, who has been missing since
20.07.2010, shall be presumed dead in terms of section
108 of the Indian Evidence Act, 1872.
3. The parties to bear their own costs.
-- 9 of 11 --
10 L.C. Suit No.3368/2019
Judgment.
4. Decree be drawn up accordingly.
(A.B. Hodawadekar)
Judge,
Mumbai. City Civil & Addl. Sessions Judge,
Date :21.07.2026. Gr. Mumbai.
Directly typed on : 21.07.2026.
Checked on : 21.07.2026.
Signed on : 21.07.2026.
-- 10 of 11 --
11 L.C. Suit No.3368/2019
Judgment.
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME
21.07.2026 at 4.51 p.m.
Name of the Stenographer
Mrs. S.R. Mejari
Name of the Judge (with Court Room No.) HHJ Shri A.B.Hodawadekar
(Court Room No.8).
Date of Pronouncement of
Judgment/Order
21.07.2026
Judgment/Order signed by P.O. on 21.07.2026
Judgment/Order uploaded on 21.07.2026
-- 11 of 11 --