Final Order 1

Order Details: Copy of Judgment
Pdf Text: 1
MHCC010131142019
Lodged on : 13.12.2019
Registered on : 24.01.2020
Decided on : 09.11.2023
Duration : 03Y 10M 27D
EXHIBIT-14
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
SUIT NO. 296 OF 2020
SMT. SHEELA BALU KAMBLE ]
Age 50 years, Occupation : ]
Housewife, Residing at Room ]
No. 13, Building No.2, ]
Bhandup Tekdi Vasahat, BMC ]
Quarters, Jamil Nagar, Near ]
Adhilya Vidyalaya, ]
Bhandup (West), ]
Mumbai – 400 078. ].. Plaintiff.
V/s.
1. STATE OF MAHARASHTRA,]
Through Senior Police ]
Inspector, Sion Police Station, ]
Mumbai. ]
2. MUNICIPAL CORPORATION ]
OF GREATER MUMBAI. ]
Municipal Head Office, ]
Mahapalika Marg, C.S.T. ]
and Ward Office “S” Ward ]
Local Office at Bhandup. ]..Defendants.
Advocates Mr. Sandip Zalte h/f Advocate Mr. Tejas Patil for the plaintiff.
Advocate Mr. Amit Kapse for State/defendant No.1.
Advocate Mrs. Chandramore for BMC/defendant No.2.
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CORAM : HIS HONOUR JUDGE
SHRI VAIBHAV V. PATIL
(C.R.No.09).
DATE : 9th NOVEMBER 2023.
JUDGMENT
Present suit is instituted for the relief of death declaration
that Shri Balu Dhanu Kamble 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 she is the legally wedded wife
of Shri Balu Dhanu Kamble who was husband of the plaintiff. On
20.05.2006, Shri Balu Dhanu Kamble went out from his residence for
some work, but did not return back. The plaintiff and her family
members took search for her husband, but they could not find him.
Hence, the plaintiff lodged the Missing Complaint of her husband on
21.05.2006 at Sion Police Station, Mumbai and the police registered the
said complaint under A.M.R.No.21/2006 dated 21.05.2006. Also the
complaint was made to the Senior Police Inspector, Crime Branch on
26.05.2006 under V.R. No.221/2006. Thereafter, the plaintiff as well as
police made every possible efforts to trace Shri Balu Dhanu Kamble,
however he was not found out after due and diligent search. The police
issued Missing Certificate dated 15.05.2013 and Permanent Missing
Certificate dated 14.06.2013 was issued by Senior PI, Crime Branch,
Mumbai.
3. It is further contention of the plaintiff that her husband’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
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declaration that this Hon’ble Court be pleased to make an order of
presumption of death of Shri Balu Dhanu Kamble who is not heard of
for more than seven years under section 108 of Indian Evidence Act,
1908 and also prayed that direction be given to the Municipal
Corporation of Greater Mumbai to record the death of Shri Balu Dhanu
Kamble in the register of deaths and issuance of his death certificate.
4. The Defendant No.1 has filed written statement vide Exh.5
and resisted the suit. It is contended that the suit is misconceived, bad-
in-law and not maintainable. The suit is bad for want of Statutory
Notice under section 80 of the Civil Procedure Code, 1908. The plaint
does not disclose any cause of action as against this defendant. The
present suit is filed beyond the period of limitation of period. Hence, the
suit is liable to be dismissed with costs.
5. Though defendant No.2/BMC appeared, failed to file its
written statement. Hence, suit came to be proceeded without written
statement of the defendant No.2.
6. I have heard learned advocate for the plaintiff, the learned
advocate for State/defendant No.1 and learned advocate for defendant
No.2/BMC.
7. In view of pleadings, on 06.07.2023, I have framed issues
vide Exhibit-06 and I have recorded my findings to each of them for the
reasons stated below.
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Sr.
No.
ISSUES FINDINGS
1 Does the plaintiff prove that the father of the
plaintiff Shri Balu Dhanu Kamble went
missing from 20.05.2006 and not traceable ?
In the
Affirmative
2 Whether the plaintiff is entitled to a decree
for declaration of death of Shri Balu Dhanu
Kamble as per Section 108 of the Indian
Evidence Act ?
In the
Affirmative
3 Whether plaintiff is entitled for a Death
Certificate of Shri Balu Dhanu Kamble to be
issued by B.M.C. ?
In the
Affirmative
4 Whether the plaintiff is entitled for the relief
of declaration as prayed ?
In the
Affirmative
5 What Order and decree ? As per Final Order
R E A S O N S
AS TO ISSUE NOS.1 TO 4 :
8. As all the points are related with each other, they are
discussed together to avoid repetition.
9. The plaintiff has filed her Affidavit of Evidence in lieu of
Examination-in-Chief at Exhibit-7 and deposed on oath and she has
reiterated all the contentions in her plaint in the Affidavit of Evidence.
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She was cross-examined by both the advocates of defendants. In cross
examination she has stated that she had issued Notice under section 80
of the C.P.C. to the State. She further deposed that she had not issued
paper notice about missing of her husband and had not issued
publication on television. She had not made application to BMC for
issuing death certificate of her husband to BMC. She had not issued
notice to BMC before institution of the suit.
10. In support of the suit claim, the plaintiff has produced on
record list of documents vide Exh.8. The plaintiff has produced on
record Service Certificate dated 13.07.2016 (Exh.9), Missing Certificate
dated 15.05.2013 issued by defendant No.1 (Exh.10). It shows that the
the plaintiff has filed complaint to Sion Police Station regarding missing
of her husband vide AMR No.21/2008 dated 15.05.2013. The plaintiff
has produced on record Permanent Missing Certificate dated
14.06.2013 issued by Senior PI, Crime Branch, Mumbai (Exh.11) and
letter ated 30.11.2019 issued to defendant No.1 (Exh.12). The learned
advocate for the plaintiff has filed evidence closed pursis (Exh.13).
11. The learned advocate for defendants submitted that the suit
is barred by law of limitation. It is further submitted that the husband of
the plaintiff went missing since 20.05.2006. 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
did not hear anything about her husband Shri Balu Dhanu Kamble since
20.05.2006 and the cause of action for institution of the suit is recurring
one and until the plaintiff realized that her husband Shri Balu Dhanu
Kamble cannot be traced, she cannot be compelled to institute the suit
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for declaring him 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.
12. 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.
13. In the present case, it is evident that the husband of the
plaintiff went missing since 20.05.2006. The plaintiff has deposed on
oath that she took all the efforts to find him and she also lodged missing
complaint with police, but police also could not trace him. Despite of
their efforts, they could not find the missing person. Thus, it is proved
from the evidence produced on record by the plaintiff that her husband
was missing since 20.05.2006 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
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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.
14. In view of above documents and the oral evidence, plaintiff
has proved that Shri Balu Dhanu Kamble went missing since
20.05.2006. 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.
15. 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 Balu
Dhanu Kamble to be issued by the defendant No.1.
16. 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 4 in the affirmative and in answer to Issue No. 5,
I proceed to pass following order.
ORDER
1. The suit is hereby decreed.
2. It is hereby declared that the husband of the
plaintiff Shri Balu Dhanu Kamble is not being heard
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of for more than last seven years and he is Civil
Dead.
3. The defendants are directed to register the death
of Shri Balu Dhanu Kamble 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: 09.11.2023 Gr.Mumbai.
Dictated on : 09.11.2023
Typed on : 23.11.2023
Signed on : 28.11.2023
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
28/11/2023 At 04.00 P.M. MRS. SUPRIYA S.PAWAR
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
09/11/2023
Judgment/Order signed by P.O. on 28/11/2023
Judgment/Order uploaded on 28/11/2023
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