Final Order 1

Order Details: Copy of Judgment
Pdf Text: 1
MHCC010133562019
Lodged on : 12.12.2019
Registered on : 18.12.2019
Decided on : 01.11.2023
Duration : 03Y 10M 20D
EXHIBIT-19
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
SUIT NO. 3392 OF 2019
SMT. SHAILA SURESH PAI ]
Age 62 years, Indian Inhabitant]
Residing at 157/4341, Pant ]
Nagar Om Sai Co-operative ]
Housing Society Ltd., Naidu ]
Colony, Pant Nagar, Ghatkopar ]
(East), Mumbai – 400 075. ].. Plaintiff.
V/s.
1. THE STATE OF ]
MAHARASHTRA, Through ]
Sr. Inspector of Police, ]
Ghatkopar Police Station, ]
Chirag Nagar, Ghatkopar(West)]
Mumbai 400 086. ]
2. THE MUNICIPAL ]
CORPORATION GREATER ]
BOMBAY, Through the Asstt. ]
Commissioner “N” Ward, ]
Jawahar Road, Ghatkopar (E), ]
Mumbai – 400 077. ]..Defendants.
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Advocates Mr. Parshuram Barge for the plaintiff.
Advocate Mr. Krishna Yadav h/f Advocate Ms. Martina Sakpal for
State/defendant No.1.
Advocate Mrs. Chandramore for BMC/defendant No.2.
CORAM : HIS HONOUR JUDGE
SHRI VAIBHAV V. PATIL
(C.R.No.09).
DATE : 1st NOVEMBER 2023.
JUDGMENT
Present suit is instituted for the relief of death declaration
that Shri Vishwanath Annappa Pai 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 daughter-in-law of Shri
Vishwanath Annappa Pai who has been missing from the year 1975 and
inspite of diligent search and missing complaint lodged by her mother-
in-law Smt. Shantabai Vishwanath Pai (since deceased) in Chirag Nagar
Police Station in the year 1975, her father-in-law could not be traced.
Since the complaint lodged by her mother-in-law is not traceable,
therefore, the plaintiff herself made an application dated 01.09.2012, as
the mother in law has already been expired and requested Chirag Nagar
Police Station to issue a certificate of complaint lodged by her mother-
in-law and on the said application, Chirag Nagar Police Station was
pleased to issue a certificate dated 07.09.2012 thereby informing the
plaintiff about the records pertaining to the complaint of the year 1975
is not available with the Police Station since the records prior to the
year 2004 are destroyed.
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3. It is further case of the plaintiff that her husband has
expired on 17.08.1998 and thereafter subsequently, plaintiff’s mother in
law also expired on 15.06.2003. Thus, the plaintiff has become the sole
legatee and heir and legal representative of the said missing person.
After missing of her father-in-law Shri Vishwanath Annappa Pai, the
plaintiff and her other members of the family made diligent search with
all the relatives, but he could not be traced. The plaintiff has issued a
public notice dated 21.08.2018 both in English Daily “Free Press
Journal” and Marathi daily “Navshakti”. Till date nobody has claimed
any objection nor the whereabouts of the missing person could not be
traced.
4. It is further case of the plaintiff that the complaints are
made in Mumbai. Therefore, the entire 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 Shri
Vishwanath Annappa Pai is presumed to be dead and direction be given
to defendant No.2 for issuance of death certificate in the name of
missing person Shri Vishwanath Annappa Pai to the plaintiff.
5. Though defendant No.1/State and defendant No.2/BMC
appeared, failed to file their written statement. Hence, suit came to be
proceeded without their written statement.
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.
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7. Perused plaint and documents filed by the plaintiff. The
following points arise for my determination and I have recorded my
findings to each of them for the reasons stated below.
Sr.
No.
ISSUES FINDINGS
1 Whether the plaintiff is entitled to a decree
for declaration of death of Shri Vishwanath
Annappa Pai as per Section 108 of the
Indian Evidence Act ?
In the
Affirmative
2 Whether plaintiff is entitled for a Death
Certificate of Shri Vishwanath Annappa Pai
to be issued by B.M.C. ?
In the
Affirmative
3 Whether the plaintiff is entitled for the relief
of declaration as prayed ?
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 :
8. As all three 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-6 and deposed on oath and she has
reiterated all the contentions in her plaint in the Affidavit of Evidence.
She was cross-examined by both the advocates of defendants. In cross
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examination she has stated that they had published paper publication
regarding missing of her father-in-law. She had not applied to BMC for
issuing Death Certificate of her father-in-law.
10. In support of the suit claim, the plaintiff has produced on
record list of documents vide Exh.7. The plaintiff has produced on
record original Allotment Letter dated 27.06.1966 (Exh.8), Application
dated 01.09.2012 and Certificate issued by Inspector of Police, Crime on
07.09.2012 and destroyed record till 2004 (Exh.9 colly.), original Death
Certificate of deceased husband of the plaintiff (Exh.10), Pension Book
(Exh.11), original death Certificate of mother-in-law of plaintiff
(Exh.12), Original Electricity Bill, Ration Card, Voter ID Card, Aadhar
Card, Death Certificate of mother-in-law, PAN Card, Gas Connection
Receipt and Maintenance Bill standing in the name of father-in-law of
Plaintiff (Exh.13 colly.), Application dated 25.06.2017 to the society by
the plaintiff (Exh.14), Reply from Society dated 21.11.2017 (Exh.15),
Public Notice published in “Free Press Journal and “Navshakti dated
21.08.2018 (Exh.16) and Notice under section 80 of C.P.C. and Notice
under section 527 of MMC Act,1888 (Exh.17 colly). The learned
advocate for the plaintiff has filed evidence closed pursis (Exh.18).
11. The learned advocate for defendants submitted that the suit
is barred by law of limitation. It is further submitted that the father-in-
law of the plaintiff went missing from the year 1975. 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 father-in-law of the plaintiff went missing in 1975 and her mother-
in-law lodged complaint in the year 1975. The plaintiff got married
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with son of missing person on 21.04.1979 and both her mother-in-law
and husband expired. The record of missing complaint was destroyed
by the police. She did not hear anything about her father-in-law Shri
Vishwanath and the cause of action for institution of the suit is
recurring one and until the plaintiff realized that her father-in-law Shri
Vishwanath Annappa Pai cannot be traced, she cannot be compelled to
institute the suit 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 father-in-law of
the plaintiff went missing since 1975. The plaintiff has deposed on
oath that she took all the efforts to find him and her mother-in-law also
lodged missing complaint with police, but police also could not trace
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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 father-in-law was missing since 1975 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.
14. In view of above documents and the oral evidence, plaintiff
has proved that Shri Vishwanath Annappa Pai went missing since
1975. 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
Vishwanath Annappa Pai 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 3 in the affirmative and in answer to Issue No. 4,
I proceed to pass following order.
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ORDER
1. The suit is hereby decreed.
2. It is hereby declared that the father-in-law of the
plaintiff Shri Vishwanath Annappa Pai 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 Vishwanath Annappa Pai 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: 01.11.2023 Gr.Mumbai.
Dictated on : 01.11.2023
Typed on : 01.11.2023
Signed on : 02.11.2023
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
02/11/2023 At 03.00 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
01/11/2023
Judgment/Order signed by P.O. on 02/11/2023
Judgment/Order uploaded on 02/11/2023
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