Delhi District Court
Sh. Sohan Singh vs The State on 28 November, 2016
IN THE COURT OF MS. SHUCHI LALER, SCJ CUM RC
(SHAHDARA) KKD COURTS, DELHI.
Suit No. : 10027/16
In the matter of :-
1. Sh. Sohan Singh,
S/o Sh. Kuldeep Singh
R/o 170D, DDA Flats (LIG),
Jhilmil Colony, Delhi ......... Plaintiff
Versus
1. The State
N.C.T. of Delhi
Govt. of Delhi
2. The SDM,
Vivek Vihar, Nand Nagari,
Shahdara, Delhi - 93
3. The commissioner of EDMC
EDMC Headquarter
Industrial Area Patparganj,
East Delhi
4. The Deputy Commissioner,
Nand Nagari, Delhi. ........ Defendants
Date of institution of the suit : 02/03/2016
Final Arguments Heard on : 28/11/2016
Date of Judgment : 28/11/2016
Suit No. 10027/16 Sohan Singh Vs. State & Ors. Page 1 of 6 pages
SUIT FOR DECLARATION AND MANDATORY INJUNCTION.
JUDGMENT :-
1. Vide this judgment, the court shall decide a suit for declaration and mandatory injunction filed by the plaintiff.
2. Brief resume of the facts is desirable, same is as under :-
The plaintiff has averred that he is a son / legal heir of Sh. Kuldeep Singh, who is missing since 17.08.2004 and a missing report was lodged at PS Vivek Vihar on 18.08.2004 vide DD No. 72-B. The plaintiff tried his best to search his father, however, till date he has not received any information about whereabouts of his father. On 03.03.2014, mother of plaintiff, namely, Ms. Inderjeet Kaur went to P.S. and the SHO of P.S. Vivek Vihar had issued a untrace report dated 03.03.2014. After receipt of the untrace report dated
03.03.2014, the plaintiff had approached defendant no. 2 and had requested its officials to issue the death certificate of his father, however, they did not pay any heed and refused to issue the same. The plaintiff has sent a legal notice to defendants through his counsel. The plaintiff is in need of Death Certificate of his father and he has no other efficacious remedy except to file the present suit. Hence, the present suit.
3. Defendant no. 1 and 4 were served on 10.03.2016, however, they did not prefer to contest the present suit. Defendant no. 2 and 3 / EDMC have contested the present suit by filing written statement wherein preliminary objections such as present suit is not maintainable for want of statutory notice under Section 477/478 DMC Suit No. 10027/16 Sohan Singh Vs. State & Ors. Page 2 of 6 pages Act; suit is not maintainable as no cause of action ever arose in favour of plaintiff; plaintiff has concealed material facts before this court have been raised. It has been averred that the plaintiff has not made sincere efforts by way of print / electronic media to search Sh. Kuldeep Singh who allegedly went missing. The death certificate can be issued by the defendant only after a declaratory decree is passed by the competent court. Dismissal of the suit has been prayed for.
4. Replication was duly filed on behalf of the plaintiff wherein contrary averments were denied and the corresponding averments made in the plaint were reiterated and reaffirmed as true and correct.
5. On the basis of pleadings of the parties, the following issues were framed vide Order dated 01/10/2016 :-
(i). Whether plaintiff is entitled to the relief of declaration as prayed? OPP
(ii). Whether plaintiff is entitled to the relief of mandatory injunction as prayed? OPP
(iii). Relief.
Thereafter, parties were directed to lead evidence.
6. In support of his case, the plaintiff stepped into the witness as PW-1 and tendered his evidence by way of affidavit which is Ex. PW1/A. He has relied upon the following documents: -
➢ Copy of Missing Report as Ex.PW1/1 (OSR); ➢ Copy of Untraced Report as Ex.PW1/2 (OSR); ➢ Copy of Notice dated 11.11.2015 as Ex.PW1/3 (OSR); ➢ Copy of Election I Card of father of plaintiff as Ex.PW1/4 (OSR);
Suit No. 10027/16 Sohan Singh Vs. State & Ors. Page 3 of 6 pages ➢ Copy of Aadhar Card as Ex.PW1/5 (OSR);
➢ Original Postal Receipts as Ex.PW1/6 ➢ Copy of Ishtehar Shore Goga as Mark A. The summoned witness HC Hari Singh has been examined as PW-2 and he proved on record Copy of the Untrace Report as Ex.C1 and Copy of DD Entry DD Entry No. 72-D, dated 18.08.2004 as Ex.C2. No cross examination of the aforesaid witnesses has been conducted. Thereafter, plaintiff closed his evidence.
7. The defendants did not chose to lead evidence in the instant suit. Accordingly, DE was closed.
8. Final arguments have been heard on behalf of defendant no. 2 and 3 and record perused. None appeared on behalf of plaintiff to address arguments.
9. Issue wise findings are as under:-
Issue No. (i) : Whether plaintiff is entitled to the relief of declaration as prayed? OPP
10. The onus to prove the said issue is upon the plaintiff. The case of the plaintiff is that Sh. Kuldeep Singh, who is his father, has been missing since 17.08.2004 and he has not been heard of by anyone for last more than 7 years.
11. The defendant no. 1 and 4 have not preferred to file the written statement. The defendant no. 2 and 3, in their written statement, have denied the aforesaid averment of the plaintiff for want of knowledge. There has been no specific denial by the defendant no. 2 and 3 and the story of the plaintiff regarding Sh. Kuldeep Singh being missing since 17.08.2004 is deemed to be Suit No. 10027/16 Sohan Singh Vs. State & Ors. Page 4 of 6 pages admitted in view of Order 8 Rule 5 CPC.
12. The summoned witness i.e. HC Hari Singh examined as PW-2 has also supported the version of the plaintiff by proving the missing report as well as untrace report Ex.C1 and Ex.C2.
13. In view of the facts and circumstances, the impending need of declaratory relief is required for the purpose of establishing rights to the movable and immovable property of Sh. Kuldeep Singh. As per Indian Evidence Act, particularly, Section 108 prescribes / incorporate a rule of evidence that a burden to prove that the person is alive who has not been heard for more than seven years is on the person who affirms it. Herein the police officials and the LRs of Sh. Kuldeep Singh have not affirmed the fact that Sh. Kuldeep Singh is still alive. In a manner they have not contested the present suit. Decree of declaration is required for claiming legal rights and entitlement to the movable and immovable assets of Sh. Kuldeep Singh. Consequently, in my opinion, the plaintiff is entitled to the relief of declaration.
Issue (i) is decided in favour of the plaintiff and against the defendants.
Issue No. (ii): Whether plaintiff is entitled to the relief of mandatory injunction as prayed? OPP
14. The onus to prove the said issue was upon the plaintiff. The plaintiff has sought the relief that defendant no. 2 be directed to issue death certificate of Sh. Kuldeep Singh. The defendant no. 2, in the written statement, has averred that they are ready to register and issue a death certificate as per law.
15. As discussed herein above, the plaintiff has been held entitled to the relief of declaration. Sh. Kuldeep Singh has been Suit No. 10027/16 Sohan Singh Vs. State & Ors. Page 5 of 6 pages declared to be dead. Accordingly, there is no reason to deprive the plaintiff of the death certificate of Sh. Kuldeep Singh. The plaintiff has successfully established his claim to the relief of the mandatory injunction.
Issue (ii) is decided in favour of the plaintiff and against the defendants.
RELIEF :-
16. Keeping in view the foregoing reasons and discussions, the suit of the plaintiff is decreed. It is hereby declared that Sh. Kuldeep Singh, who has not been heard for the last more than seven years had died. The defendant no. 2 is directed to issue death certificate of Late Sh. Kuldeep Singh subject to fulfillment of requisite formalities and payment of fees by the plaintiff. No order as to costs.
Decree sheet be prepared accordingly.
File be consigned to Record Room after due compliance.
Announced in the open court (SHUCHI LALER) on this 28th day of November, 2016 SCJ/RC (SHAHDARA) KKD Courts, Delhi Suit No. 10027/16 Sohan Singh Vs. State & Ors. Page 6 of 6 pages