Delhi District Court
Smt. Chaman Devi vs Krishna Pal on 12 September, 2022
IN THE COURT OF SHRI LALIT KUMAR:
ADDITIONAL DISTRICT JUDGE-04: SOUTH EAST DISTRICT:
SAKET COURTS: NEW DELHI
RCA - 94/2018
Smt. Chaman Devi
W/o Sh. Ram Kumar,
R/o 899 A, Gali no.2C, Ekta Vihar,
Mithapur Extension, Jaitpur,
New Delhi - 110044.
..... Appellant
Versus
1. Krishna Pal
S/o Sh. Late Raghuvir,
R/o H. No.A-41, FF, BP, Kh. No.171,
Budh Vihar Colony, Tajpur Pahari,
Badarpur, New Delhi - 110044.
2. Sh. Bhanwar Singh
S/o Sh. Manohar Lal Singh
R/o 1/11, 348 A, Gali No.7,
Subhash Park Extension, Shahadra,
Delhi -110032
3. Sh. Pawan Kumar Gehlot
S/o Sh. Ram Kumar
R/o Not known to appellant.
4. State / Govt. of NCT of Delhi
8th Level, C-Wing, Delhi Secretariat,
I.P. Estate, New Delhi- 110001
Through Chief Secretary
RCA - 94/2018 dated 12.09.2022 Chaman Devi Vs. Krishan Pal Ors Page no. 1 of 18
5. South MCD
17th Floor, SPM, Civic Centre,
Minto Road, New Delhi - 110002.
Through its Commissioner
..... Respondents
ORDER
12.09.2022
1. By this order I shall dispose off an appeal under Section 96 read with Order XLI Code of Civil Procedure filed by the appellant against the impugned judgment and decree dated 28.03.2018 passed by Ld. Civil Judge, Saket Courts, New Delhi in suit no.50537/2016 titled as Smt. Chaman Devi Vs. Sh. Krishan Pal & Ors. whereby the suit was dismissed.
2. Facts in brief giving rise to the present appeal are that plaintiff (appellant herein) had filed a suit before Ld. Trial Court for declaring her husband, Sh. Ram Kumar S/o Late Sh. Lakhmi Chand as dead in view of the provisions of Section 107 of the Indian Evidence Act as he was missing since 30.12.2001 and his present whereabouts are not known.
2.1 The case of the appellant / plaintiff before Ld. Trial Court was that whereabouts of husband of the appellant / plaintiff, Sh. Ram Kumar RCA - 94/2018 dated 12.09.2022 Chaman Devi Vs. Krishan Pal Ors Page no. 2 of 18 have not been known for the past more than 13 years, ever since he had gone missing from 30.12.2001, when he had left in a Tata sumo bearing No. DL-3C-0166 from his home and had thereafter gone missing. Despite attempts to search Sh. Ram Kumar, he could not be traced. The son of the appellant / plaintiff lodged a police complaint with Badarpur Police Station on 30.12.2001 regarding missing of his father. On the said complaint, an FIR No.19/2002 was registered with the Badarpur Police Station on 07.01.2002 u/Sec.365 IPC. The son of the plaintiff came to know that at the night of 30.12.2001, Sh. Ram Kumar had made the last phone call from Aligarh, stating that he was to go to Agra and would return the next day.
2.2 Further it was stated that as per the report in newspaper Dainik Jagran, published on 30.05.2008, it can be presumed that Sh. Ram Kumar was killed by one Dr. Devender Sharma under a conspiracy. It was further averred that the plaintiff and her entire family have lost all hopes with respect to the return of Sh. Ram Kumar, who has left behind his wife, Sh. Pawan Kumar Gehlot (defendant no.3 / eldest son), Sh. Arvind, Sh. Rajnagar and Sh. Bunty (other sons) as his legal heirs. Defendant no.3 is stated to be living separately and other sons have been residing with the appellant / plaintiff. Thus, the suit had been instituted for the relief of declaration with respect to Sh. Ram Kumar being declared as dead. 2.3 Subsequently, application u/O 6 rule 17 CPC was moved praying for the impleadment of State Govt. of NCT of Delhi as defendant no.4 and in the prayer clause sought to be recast, the appellant / plaintiff RCA - 94/2018 dated 12.09.2022 Chaman Devi Vs. Krishan Pal Ors Page no. 3 of 18 had prayed for the relief to state therein that she was legally entitled to all the rights as a widow of Sh. Ram Kumar and vide order dated 27.02.2015, the said amendments were allowed and the notice of the application moved under Section 80(2) CPC was also issued through publication on State, i.e. defendant no.4.
2.4 Another application under Order 1 Rule 10 CPC was moved by the appellant / plaintiff to have SDMC impleaded in the matter. The said application was also allowed vide order dated 20.07.2016 and SDMC was impleaded in the present suit.
2.5 In a report called from Police Station Badarpur, it came to know that no criminal case pending against Sh. Ram Kumar, qua whom the declaration had been prayed for.
2.6 Further vide order dated 26.11.2016 appellant / plaintiff was examined as PW-1 and defendants no.2 and 3 were also examined as PW-2 and PW-3 respectively, since they had stated that they wished to be examined as plaintiff's witness. The status report concerning FIR No.90/02 was also called.
2.7 Furthermore vide order dated 13.07.2017, the proceedings against the defendants were set ex-parte. The other legal heirs i.e. Sh. Raj Nagar (PW-4), Sh. Krishan Pal (PW-5), sons of Sh. Ram Kumar, were also examined subsequently. The other son of plaintiff / appellant namely Sh. Bunty was examined as PW-7.
3. After completing the evidence of parties, evidence was closed RCA - 94/2018 dated 12.09.2022 Chaman Devi Vs. Krishan Pal Ors Page no. 4 of 18 and arguments were heard thereafter vide judgment dated 28.03.2018 suit of the appellant / plaintiff was dismissed by Ld. Trial Court.
4. Feeling aggrieved with the impugned judgment dated 28.03.2018 the appellant / plaintiff has preferred the present appeal on the various grounds mainly that Ld. Trial Court failed to appreciate that the appellant has mentioned on record all facts and circumstances that are necessary in order to ascertain the cause of action for which she has approached.
5. No reply to the appeal has been filed as respondent nos.1, 3 and 4 are exparte (vide order dated 11.07.2022) whereas respondent no.2 has not filed reply to the appeal submitting that he does not want to contest this case. Ld. Counsel for respondent no.5 also does not wish to file reply to appeal stated that respondent no.5 will follow the directions of the court.
6. I have heard learned counsel for the parties and carefully gone through the trial court record and considered the respective submissions.
7. It is seen from the record that the plaintiff is residing with her husband and other family members at 889A, Gali No.2C, Ekta Vihar, Mithapur Extn. Jaitpur, South Delhi and her husband Sh. Ram Kumar has not been known for the past more than 13 years, ever since he had RCA - 94/2018 dated 12.09.2022 Chaman Devi Vs. Krishan Pal Ors Page no. 5 of 18 gone missing from 30.12.2001, when he had left in a Tata Sumo bearing No. DL-3C-0166 from his home and had thereafter gone missing.
8. It is further seen that attempts were made to search Sh. Ram Kumar but he could not be traced. It is further seen that a police complaint was lodged by son of the appellant / plaintiff with Police Station Badarpur on 30.12.2001 regarding missing of his father and on its basis an FIR No.19/2002 u/Sec. 365 IPC was registered in the same Police Station on 07.01.2002. It is averred that the son of the plaintiff came to know that at the night of 30.12.2001, Sh. Ram Kumar had made the last phone call from Aligarh, stating that he was to go to Agra and would return the next day.
9. It is further seen that respondent no.2 is not interested in contesting this case, even he does not wish to file reply to the appeal. Respondent no.5 has also not filed reply to the appeal and stated that respondent no.5 will follow the directions of the court.
10. It is further seen that as per the report in Dainik Jagran Newspaper, published on 30.05.2008, it can be presumed that Sh. Ram Kumar was killed by one Dr. Devender Sharma under a conspiracy.
11. It is further contended that the plaintiff and her family members made all efforts to trace out Sh. Ram Kumar but all in vain. It is RCA - 94/2018 dated 12.09.2022 Chaman Devi Vs. Krishan Pal Ors Page no. 6 of 18 further contended that neither the plaintiff nor any of her family members or relative or friends have heard of Sh. Ram Kumar for last more than 13 years, though plaintiff and her other family members and relatives would naturally have heard of Sh. Ram Kumar, if he had been alive. It is further seen that the appellant / plaintiff has lost all her hopes about her husband Sh. Ram Kumar of being alive.
12. It is a settled law that in case of missing, the M.C.D can register the death only on ground of Declaratory Decree passed by the competent court of law.
13. I have also gone through the evidence of witnesses recorded before Ld. Trial Court and also gone through the exhibited documents as well as complaint with the Police Station Badarpur on 30.12.2001 regarding missing of Sh. Ram Kumar and the FIR No.19/2002 u/Sec. 365 IPC which was registered in the same police station on 07.01.2002 on the basis of said complaint.
14. In the present case, plaintiff Smt. Chaman Devi (PW-1) has deposed that she is the wife of Sh. Ram Kumar who has been missing since 30.12.2001, when he had left in a Tata sumo bearing No. DL-3C-0166 from their residence and consequently a missing report was lodged by her elder son at P.S. Badarpur, Delhi. It was deposed that best efforts were RCA - 94/2018 dated 12.09.2022 Chaman Devi Vs. Krishan Pal Ors Page no. 7 of 18 also made for search of Sh. Ram Kumar but the said Sh. Ram Kumar has not been heard or seen by anyone in the ordinary course of human affairs and all the efforts made turned futile in tracing out the missing hence the said Sh. Ram Kumar is required to be declared as "DEAD". Other examined witnesses also supported the version of the plaintiff. Thus, in view of the testimony of the plaintiff, PW-1, PW-2, PW-3 and PW-4, and the documents exhibited, it is proved on record that Sh. Ram Kumar went missing since 30.12.2001 and has till date not been seen or heard alive by the plaintiff.
15. Since suit of the appellant / plaintiff has been dismissed by Ld. Trial Court for the reasons that neither plaintiff / appellant has disclosed in the plaint as to what facts constituted the very cause of action nor there is consequential prayer made in the suit, therefore, it is necessary to discuss the relevant law on this aspect.
15.1 In Om Prakash Srivastava V. Union of India & Anr., reported in (2006) 6 SCC 207, the term 'cause of action' has been elaborately explained by the Hon'ble Apex Court in the following terms:-
"9. By "cause of action" it is meant every fact, which, if traversed, it would be necessary for the plaintiff to prove in order to support his right to a judgment of the Court. In other words, a bundle of facts, which it is necessary for the plaintiff to prove in order to succeed in the suit. (See Bloom Dekor Ltd. V. Subhash Himatlal Desai).
10. In a generic and wide sense (as in Section 20 of the RCA - 94/2018 dated 12.09.2022 Chaman Devi Vs. Krishan Pal Ors Page no. 8 of 18 Civil Procedure Code, 1908) "cause of action" means every fact, which it is necessary to establish to support a right to obtain a judgment. (See Sadanandan Bhadran V. Madhavan Sunil Kumar).
11. It is settled law that "cause of action" consists of a bundle of facts, which give cause to enforce the legal inquiry for redress in a court of law. In other words, it is a bundle of facts, which taken with the law applicable to them, gives the plaintiff a right to claim relief against the defendant. It must include some act done by the defendant since in the absence of such an act no cause of action would possibly accrue of would arise. [See South East Asia Shipping Co. Ltd. V. Nav Bharat Enterprises (P) Ltd.]
12. The expression "cause of action" means the circumstances forming the infraction of the right or the immediate occasion for the reaction. In the wider sense, it means the necessary conditions for the maintenance of the suit, including not only the infraction of the right, but also the infraction coupled with the right itself. Compendiously, as noted above, the expression means every fact, which it would be necessary for the plaintiff to prove, if traversed, in order to support his right to the judgment of the court. Every fact, which is necessary to be proved, as distinguished from every piece of evidence, which is necessary to prove each fact, comprises in "cause of action". (Rajasthan High Court Advocates' Assn. V. Union of India)
13. The expression "cause of action" has sometimes been employed to convey the restricted idea of facts or circumstances which constitute either the infringement or the basis of a right and no more. In a wider and more comprehensive sense, it has been used to denote the whole bundle of material facts, which a plaintiff must prove in order to succeed. These are all those essential facts without the proof of which the plaintiff must fail in his suit. (Gurdit Singh V. Munsha Singh).
14. The expression "cause of action" is generally understood to mean a situation or state of facts that entitles a party to maintain an action in a court or a tribunal; a group of operative facts giving rise to one or more bases of suing; a factual situation that entitles one person to obtain RCA - 94/2018 dated 12.09.2022 Chaman Devi Vs. Krishan Pal Ors Page no. 9 of 18 a remedy in court from another person (Black's Law Dictionary). In Stroud's Judicial Dictionary a "cause of Action" is stated to be the entire set of facts that gives rise to an enforceable claim; the phrase comprises every fact, which if traversed, the plaintiff must prove in order to obtain judgment. In Words and Phrases (4th Edn.) the meaning attributed to the phrase "cause of action" in common legal parlance is existence of those facts, which give a party a right to judicial interference of his behalf. (Navinchandra N.Majithia V. State of Maharashtra.)"
16. Applying the aforesaid principle of law and considering the facts of the case in its entirety shows that the plaintiff has a case and entitled to maintain the cause of action against all the defendants / respondents except defendant / respondent no.5 / SDMC.
17. In Ram Singh Vs. Board of Revenue, U.P. Allahabad, AIR 1964 All. 310, Hon'ble Single judge of Allahabad High Court held that all that one can presume under Section 108 is that the person concerned is dead but one cannot fix the time of his death under the provisions of said section. The court further held that Section 108 is not exhaustive on the question of presumption as regards the death of a person and hence the Court may in the circumstances of each case make suitable presumption even regarding the time of death. The Hon'ble Court said:
"Section 108, however, is not exhaustive on the question of presumption as regards death of a person. The Court may make a suitable presumption in accordance with the circumstances of each case :-
Suppose a man sails in a ship, and the ship sinks. Thereafter the man is never seen alive. Under such circumstances, it is reasonable to assume that the person died in the ship wreck.
RCA - 94/2018 dated 12.09.2022 Chaman Devi Vs. Krishan Pal Ors Page no. 10 of 18 When a person goes for pilgrimage he or she ordinarily returns home in six months or in a year. In the present case, Smt. Rukmini left for Gangasagar Yatra 17 years ago. Since then she has not been heard of. It is reasonable to assume that, she died in some accident or of some disease during the journey or at Gangasagar."
The aforesaid view was followed by the Bombay High Court in Subhash Ramchandra Wadekar Vs. Union of India, AIR 1993 Bombay 64, in which a Single Judge of the Bombay High Court held that if section 108 of Indian Evidence Act is to be interpreted literally, it would have to be held that law presumes the death of a person unheard of for seven years but is silent in respect of the date of presumed death. It was further held that the date of presumed death must be proved by the party concerned as a fact by leading reliable evidence. The Court formulated two propositions viz. (1) Ordinarily a person unheard of for the statutory period shall be presumed to be dead on expiry of seven years and not earlier. (2) Section 108 of Indian Evidence Act, 1872 is not exhaustive. It is permissible for the court to raise a suitable presumption regarding the date of presumed death depending upon the attendant circumstances and other reliable material on record. In other words no rule of universal applicability can be spelt out regarding presumed date of death. The court indicated that proposition No.1 must operate subject to proposition No. 2.
In Indira vs- Union of India 2005 (3) KLT 1071, a Single judge of the Kerala High Court held that even though under the Army Act, a person can be said to be a deserter when he is found missing and can also be dismissed for desertion, the situation changes when the presumption of death of such a person becomes available under Section 108 of the Evidence Act. In other words, if a person is declared a deserter and dismissed from service and is not traced out within seven years, then Section 108 of the Evidence Act takes over and all consequences would follow. In other words, presumption of death was held to supersede the finding of desertion. The aforesaid view was reiterated by the division bench of the Bombay High Court in Smt. Bhanumati Dayaram Mhatre V. Life Insurance Corporation of India, AIR 2008 Bombay 196, wherein the question for consideration before the court was as to whether a person would be presumed to have died on the date he went missing or on the date when the period of 7 years expired from the date of his missing. While interpreting the provisions of Sections 3, 107 and 108 of Evidence Act in para 4 and 5 of its decision, the High RCA - 94/2018 dated 12.09.2022 Chaman Devi Vs. Krishan Pal Ors Page no. 11 of 18 Court observed as under:-
"4. . . . . .. Section 108 of the Act is in the nature of exception to the rule contained in Section 107 of the Act and states that when a person has not been heard of for 7 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 asserts that the person is alive. In other words, if a person has not been heard of for a period of more than 7 years by the persons who would naturally have heard of him if he had been alive, then a presumption arises of his death. Though Section 108 of the Act raises a presumption of death of a person if he has not been heard of for a period of 7 years by the persons who would naturally have heard of him, it raises no presumption as to the date of his death. The date of his death, if disputed, must be proved as any other fact.
5.....Section 3 of the Evidence Act prescribes the standard of proof by defining the word "proved" as follows: "Proved-- A fact is said to be proved when, after considering the matters before it, the Court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists."
If the test of preponderance of probability laid down by Section 3 of the Act is applied, that is to say a fact is said to be proved if the court considers its existence to be so probable that a prudent man ought, under the circumstances of the particular case, to act upon certain supposition that it exists, then it would have to be held that Kushal has died on 13th November 1995 or soon thereafter. If he was alive after 13th November 1995, there was no reason for him not to contact his immediate family members. It is not the case that Kushal left the house in distress or he was under some disability which prevented him from returning home or even contacting his family members. Nor is it shown that Kushal was missing in such circumstances or could be at such place wherefrom he could not even contact his parents or close family members. Considering the fact that Kushal was not under any distress or disability nor was he in the situation wherefrom he could not contact his family members coupled with the fact that he has not contacted his family members at all since 13th November 1995 and has been declared to be dead by the declaratory decree of the competent court makes us, as men of ordinary prudence, believe that Kushal must have died on 13th November 1995 or soon thereafter."
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18. Further in Zishan Khan vs- District Inspector of Schools, Varanasi & Ors., 2012 (92) ALR 154, Hon'ble Single judge of Allahabad High Court held as follows:
(1) Ordinarily, a person not heard of for the statutory period shall be presumed to be dead on expiry of seven years and not earlier;
(ii) Section 108 of the Indian Evidence Act, 1872 is not exhaustive. It is permissible for the Court to raise a suitable presumption regarding the date of presumed death depending upon the attending circumstances and other reliable material son record. In other words, no Rule of universal applicability can be spelt out regarding presumption of death.
Thus various courts have come to the conclusion that depending upon the circumstances of each case, it would be open to the court to fix the date of death. But the reasoning given by many courts to come to such a conclusion appear to be one sided and made without reference to the perspectives of persons upon whom claims may be lodged on the basis of presumed date of death. Take for instance the case on hand, where a person was removed from service for unauthorised absence. If such a person is presumed to be dead due to the operation of Section 108 of the Evidence Act, with retrospective effect from the date he went missing, then any order of removal from service passed after the date of his presumed death would be a nullity. But if he is taken to be dead only with effect from the date on which a valid presumption could arise i.e. after the expiry of 7 years from the date he went missing, then the order of removal from service cannot be treated as a nullity.
When a person is not seen for quite some time, it may be a case of man missing for people at home. But for the office where he is working, it will only be a case of unauthorised absence. The employer is entitled to take disciplinary action against every employee who absents himself unauthorisedly. At that stage, the employer cannot be expected to anticipate that the employee will not come back for 7 years so as to arrest the raising of the presumption under Section 108.
The employers right to take disciplinary action and impose a penalty of removal or dismissal, within the period of 7 years is not taken away by Section 108. Therefore, an order of removal or dismissal passed before the date on which the presumption under RCA - 94/2018 dated 12.09.2022 Chaman Devi Vs. Krishan Pal Ors Page no. 13 of 18 Section 108 arises, cannot become a nullity post facto.
19. Moreover, in N.Pankajam Vs. State of Tamil Nadu on which the Central Administrative Tribunal placed reliance, a learned Judge of the Madras High Court held that by virtue of the presumption under Section 108 of the Evidence Act, a person who is not heard of for 7 years should be treated as dead, from the date he became untraceable. But a Division Bench of the Madras High Court disagreed with the said view, in The Managing Director, State Express Transport Corporation Tamil Nadu Limited Vs. E. Tamilarasi. The distinction between Sections 107 and 108 of the Evidence Act were brought out in the said decision of the Division Bench, to which one of us (VRS, J.) was a party. Paragraphs 11 to 16 of the said decision read as follows:
"While there can be no dispute about the presumption available under Section 108 of the Indian Evidence Act, 1872, what is important is to see the date on which such presumption arises. As per Section 108 of the Indian Evidence Act, 1872, whenever a question arises 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, burden of proving that he is alive, is shifted to the person, who affirms it.
What is provided in Section 108 of the Indian Evidence Act, 1872, is only a presumption. Section 108 of the Indian Evidence Act, 1872 cannot be read in isolation. It should be read along with Section 107 of the Indian Evidence Act, 1872. Under Section 107 of the Indian Evidence Act, 1872, whenever a question arises as to whether a man is alive or dead and it shown that he was alive within thirty years, the burden of proving that he is dead is on the person, who affirms it.
Thus, Section 108 is an exception to Section 107. If Section 107, provides the rule, Section 108, provides the exception. Once it is established that a person was alive within 30 years, the burden of RCA - 94/2018 dated 12.09.2022 Chaman Devi Vs. Krishan Pal Ors Page no. 14 of 18 proving that he is dead is on the person, who affirms it. This is the rule under Section 107. But, if it is proved that such a person, despite being alive within 30 years, 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 that he is alive.
Therefore, it follows as a corollary that for the application of Section 107, the outer limit of the period of prescription is 30 years. Similarly, for the Application of Section 108, the minimum period of time limit statutorily prescribed for the presumption to arise is seven years.
This is why the presumption as to death cannot be raised before the expiry of seven years. It cannot be raised even if the period of seven years falls short by one or two days. In LIC of India v. Anuradha, MANU/SC/028 5/2004 : 2004 (3) CTC 281 (SC) : AIR 2004 SC 2070, Hon'ble Supreme Court held that the presumption as to death by reference to Section 108 would arise only on the expiry of seven years and would not by applying any logic or reasoning be permitted to be raised on the expiry of 6 years and 364 days or at any time short of it. More over, the Court pointed out that an occasion for raising the presumption would arise only when the question is raised in a Court, Tribunal or before an Authority, who is called upon to decide as to whether the person is alive or dead. So long as the dispute is not raised before any forum and in any legal proceedings, the occasion for raising the presumption does not arise. Therefore, the expiry of the full period of seven years is essential to raise the presumption under Section 108. This takes us to the next question as to what exactly could be taken as the date of death.
26. After pointing out the distinction between Sections 107 and 108 of the Evidence Act, the Division Bench of the Madras High Court then took up for consideration in The Managing Director, State Express Transport Corporation Tamil Nadu Limited Vs. E. Tamilarasi, the next question as to what exactly could be taken to be the date of death. Inviting a reference to the decision of the Supreme Court in N.Jayalakshmi Ammal v. Gopala Pathar (AIR 1995 SC 995), wherein the Supreme Court quoted a passage from Sarkar on Evidence to the effect that though a presumption of death arises after 7 years, the exact time of death is not a matter of presumption, it was pointed out by the Division Bench of the Madras High Court that the burden lies upon the person who RCA - 94/2018 dated 12.09.2022 Chaman Devi Vs. Krishan Pal Ors Page no. 15 of 18 asserts a particular date as the date of death, to prove the same. In paragraphs 19 to 21 of its decision, the Division Bench of the Madras High Court held as follows:
As a matter of fact, there is an inherent danger in presuming that the date from which a person went missing could be taken to be the date of death. If it is so taken, many claims that could be made by his Legal Heirs would become barred by time, despite the fact that the very presumption of death could be raised only after seven years from the date on which he was last heard of.
In LIC of India v. Anuradha, MANU/ SC/ 0285/2004 : 2004 (3) CTC 281 (SC), the Hon'ble Supreme Court extracted the following passage from Halsburys Laws of England, after pointing out that there is no difference between the English Law and the Indian Law on the subject. Where the presumption of death after seven years absence applies, the person will be presumed to have died by the end of that period, where the presumption does not apply, or is displaced by evidence, the issue will be decided on the facts of the particular case. In some old cases, where neither the evidence nor the incidence of the burden of proof was decisive, the Court made the best order it could in the circumstances. Where the question to be decided, for the purposes affecting the title to property, is which of two persons died first, a Statutory Rule may apply. The question whether a person was alive or dead at a given date will be decided on all the evidence available at the date of the hearing. Therefore, it is impossible to think that a person can be presumed to be dead from the date on which he went missing. Unless a period of seven years expire from the date of his missing, the very occasion for the raising of the presumption does not arise. Therefore, the learned Judge was not correct in thinking that the Respondents husband should be presumed to be dead from May 1999 onwards."
20. In the matter in hand also, Sh. Ram Kumar, husband of appellant, has been missing since 30.12.2001, when he had left in a Tata sumo bearing No. DL-3C-0166 from his residence and efforts were made for his search but despite lapse of more then 13 years he has not been heard or seen by anyone in the ordinary course of human affairs.
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21. It may be seen that during the proceedings before Ld. Trial Court, SDMC was impleaded as party though no relief has been claimed against it as no averment with respect to appellant / plaintiff having approached the SDMC for issuance of certificate has been made by the appellant / plaintiff.
It is a settled proposition of law that in case of missing a person for the last more than seven years and the declaration simplicitor can be sought to declare the missing person as dead in view of Section 34 of Specific Relief Act and Section 107 of Indian Evidence Act. So far as dismissal of the suit qua defendant no.5 SDMC is concerned, Ld. Trial Court has rightly dismissed the suit but the suit in its entirety should not have been dismissed as the right to seek declaration has been surviving in favour of appellant / plaintiff and simply a suit for declaration without consequential prayer is maintainable in the eyes of law and cause of action to maintain the suit is still subsisting.
22. In view of the settled proposition of law that after expiry of a period of seven years from the date of missing, a person can be presumed to be dead, therefore, the appellant / plaintiff has a case and entitled to maintain the cause of action against all the defendants / respondents except defendant / respondent no.5 / SDMC as husband of appellant / plaintiff namely Sh. Ram Kumar S/o Late Sh. Lakhmi Chand had left in a Tata Sumo bearing No.DL-3C-0166 from his home and had thereafter RCA - 94/2018 dated 12.09.2022 Chaman Devi Vs. Krishan Pal Ors Page no. 17 of 18 gone missing from 30.12.2001 and more than 13 years had been lapsed since the date of missing and filing of suit.
23. In the back drop discussion and applying the aforesaid principal of law appellant / plaintiff has a case and entitled to maintain the cause of action and seek relief of declaration against all the defendants / respondents except defendant / respondent no.5 / SDMC, therefore, appeal is partly allowed declaring Sh. Ram Kumar S/o Late Sh. Lakhmi Chand as dead and impugned judgment dated 28.03.2018 is modified to that extent. Hence, appellant / plaintiff is at liberty to approach SDMC for issuance of death certificate. Appeal stands disposed off accordingly.
24. Copy of this order alongwith trial court record be sent to Ld. Trial Court / Successor Court. Appeal file be consigned to Record Room after due compliance.
Announced in the open (LALIT KUMAR)
Court on 12.09.2022 Additional District Judge-04(SE)
Saket Courts, New Delhi
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