Delhi District Court
Permanent Address vs Govt. Of Nct Of Delhi) on 3 December, 2016
IN THE COURT OF SH. SUMEDH KUMAR SETHI
JSCCcumADDITIONAL SENIOR CIVIL JUDGE
cumGUARDIAN JUDGE, DWARKA COURTS, DELHI
C.S. No. 287/13
Ms. Rajesh Brijpal
Wife of Sh. Brij Pal
R/o RV22, Servant Quarters
Air Force Station, Palam,
New Delhi
Permanent Address:
Village: Umahi Kalan,
PO Ramur Maniharan, District, Saharanpur,
UP ... Plaintiff
VERSUS
1. Govt. of NCT of Delhi)
Through Its Chief Secretary
2. Chief of Air Staff
Air Head Quarters,
Vayu Bhawan, New Delhi.
3. Air Officer Commanding
Air Force Record Office
Subroto Park
New Delhi.
4. The SHO
PS Dabri, New Delhi Railway Station,
New Delhi
5. Registrar (Birth & Deaths)
South MCD, Najafgarh
New Delhi . .... Defendants
(SUIT FOR DECLARATION)
Date of Institution of the case: 30.11.2013
Date of decision : 03.12.2016
Decision : DECREED
C.S. No. 287/13 1/10
JUDGMENT
1. This judgment shall dispose of the suit for declaration filed by the plaintiff on 30.11.2013.
2. The factual matrix of the case is that husband of the plaintiff namely Brij Pal, Rank NC(E) was serving in the Indian Air Force since 26.02.1982 vide service no. 800397,and he was posted in the Air Head Quarter, Comm, Sqn AF, C/o Air Force Station, Palam New Delhi. He was posted out from his Unit to 33 Wing, Air Force at Jam Nagar, Gujrat, w.e.f 12.07.2004. It is further alleged that on 19.08.2004, husband of the plaintiff boarded the Paschim Express Train from platform no. 5, of New Delhi Railway Station for joining his new duty station at Jam Nagar, Gujrat. Since there was no communication from her husband for about 48 days, on 06.10.2004, plaintiff reported the matter to SHO, PS , New Delhi Railway Station vide DD no. 9A, dated 06.10.2004 and on the basis thereof an FIR, bearing no. 362/2007 U/s 365 IPC was registered on 19.10.2007 at P.S. New Delhi Railway Station.
3. It is further alleged that in the meantime, defendant no. 2 vide its letter no. Air HQ/41003/Missing/NC(E)/PAIII dated 28.08.2006 declared the husband of the plaintiff as missing and released all his pensionery/NE benefits to the plaintiff. Pursuant to the C.S. No. 287/13 2/10 aforesaid FIR, SHO PS New Delhi Railway Station, after thorough investigation, filed an untrace report on 29.08.2008 in the concerned court. Further, the plaintiff nor any of her relatives has ever seen the plaintiff's husband ever since the day he boarded the Paschim Express Train for joining duty at Jam Nagar, Gujrat i.e since 19.08.2004 and his employer i.e defendant no. 2 and 3 had also released his death benefits to the plaintiff way back in August, 2006. The plaintiff and her relatives have made their best efforts to search for her husband but all in vain and hence, the present suit.
4. The defendant was served through summons and appeared on each of the hearings.
5. Written statement was filed on behalf of defendant no. 1, 2, 3 & 5 and report was filed on behalf of SHO, PS New Delhi Railway Station.
6. Following issues were framed from the pleadings of the parties on 31.07.2014.
1. Whether the plaintiff is entitled for declaration, as prayed? OPP
2. Relief.
7. The plaintiff got herself examined as PW1 and deposed in consonance with the pleadings in the plaint , Ex.PW1/1 is the voter Identification card. However, the witness had not brought the original C.S. No. 287/13 3/10 of the same. The same was accordingly deexhibited and was marked as mark X. Copy of the DD entry no. 9A dated 06.10.2004 is Mark A. Copy of the Air HQ Letter No. AIR HQ 41003/Missing/NC(E)/PAIII dated 28.08.2006 is marked as mark B, Copy of PPO No. 08,14 B/F/P/0296/08 marked as mark C. Although not mentioned in the examination in chief conducted on 12.01.2015, Ex. PW1/2 is copy of FIR bearing no. 362/2007 dated 19.10.2007 PS, New Delhi Railway Station regarding the missing person and Ex. PW1/3 is copy of untrace report dated 29.08.2008.
8. PW2, Sh. Satender Naryan Tripathi, Master Warrant Officer from the Office of Air Force Record Office brought the summoned record bearing no. RO 800397/PF dated 25.10.2007, RO/C2265/1/RW(Admn) dated 08.10.2007, Air HQ/41003/Missing/NC(E)/PAIII dated 28.08.2006, RO/2885/800397/Missing/P&WW(FP)dated24.06.2005,CS/1309/1/1 P1 dated 12.05.2005, AHCS/1309/1/1/P1 dated 10.02.2005, CS 1309/1/1/P1 dated 17.12.2004, HQ SWAC Signal no. UNC PM/436 dated 19.07.2005, certified copy photocopy of newspaper Navbhart Times dated 17.01.2005, New Delhi Edition, certified photocopy of newspaper Indian Express, New Delhi Edition and certified photocopy of PPO no. 08/14/B/F/P/0296/08 in respect of 800397NC(E) Brijpal, A.F.S Palam, all aforesaid documents are certified copies of the records C.S. No. 287/13 4/10 available with Air Force record office, Subroto Park, New Delhi. The documents are Ex. PW2/A(Colly)(16 pages).
9. PW3, HC Sahavir Singh no. 116 RM, from PS New Delhi Railway Station also brought summoned record as DD registers bearing no. 3650 having DD entries from 30.09.2004 to 31.10.2004 in which DD Entry no. 9 A at page 18 & 19 states that Sh. Rajesh Brijpal is missing and he submitted the photocopy of those entries which is Ex. PW3/A(Colly) (2 Pages) (OSR). He also brought the original FIR bearing no. 362/2007 dated 19.10.2007 and untrace report dated 29.08.2008. Copy of the same is Ex. PW3/X(OSR) and Ex. PW 1/Y(OSR).
10. PE was closed on 04.08.2016.
11. DE was led and Mr. R.C. Chaudhary, as DW1, deposed in consonance with the pleadings in the plaint viz., photocopy of publication in the Indian Express Delhi Edition Delhi dated 15.12.2004; the same is marked as Mark A and photocopy of publication in Nav Bharat Times, Delhi Edition dated 17.01.2005. the same is marked as Mark B.
12. DE was closed on 06.10.2016.
Issue no. 1
13. I have heard the Counsel for the parties and have carefully perused the record. The findings on the issues are as under: C.S. No. 287/13 5/10
Issue no. 1
14. The question to be answered is as to whether the plaintiff is entitled to a declaration declaring that Sh. Brij Pal succumbed to civil death. .
15. It is undisputed that a declaration as to civil death is a declaration as to the status of a person. That said, it can be safely asserted that a declaration as to civil death can be granted by a civil court under section 34 of the Specific Relief Act 1963 read with section 9 of the Code of Civil Procedure 1908.
16. The grant of decree of declaration to declare a civil death of a person is structured on the presumption envisaged in Section 108 of the Indian Evidence Act, 1872. The said provision propounds that if a person 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 upon the person who affirms it.
17. Sections 107 and 108 are drafted as two Sections, in effect, Section 108 is an exception to the rule enacted in Section 107. The human life shown to be in existence, at a given point of time which according to Section 107 ought to be a point within 30 years calculated backwards from the date when the question arises, is presumed to continue to be living. The rule is subject to a proviso or exception as contained in Section 108. If the persons, who would have naturally and in the ordinary course of human affairs heard of the C.S. No. 287/13 6/10 person in question, have not so heard of him for seven years, the presumption raised under Section 107 ceases to operate. Section 107 has the effect of shifting the burden of proving that the person is dead on him who affirms the fact. Section 108, subject to its applicability being attracted, has the effect of shifting the burden of proof back on the one who asserts the fact of that person being alive. The presumption raised under Section 108 is a limited presumption confined only to presuming the factum of death of the person whose life or death is in issue. Though it will be presumed that the person is dead but there is no presumption as to the date or time of death. There is no presumption as to the facts and circumstances under which the person may have died. The presumption as to death by reference to Section 108 would arise only on lapse of seven years and would not by applying any logic or reasoning be permitted to be raised on expiry of 6 years and 364 days or at any time short of it. An occasion for raising the presumption would arise only when the question is raised in a Court.
18. This view is affirmed in LIC of India v. Anuradha1 wherein it was held that:
"Neither Section 108 of the Evidence Act nor logic, reason or sense permits a presumption or assumption being drawn or made that 1 [(2004) 10 SCC 131; 2004 AIR SCW 2017.
C.S. No. 287/13 7/10
the person not heard of for seven years was dead on the date of his disappearance or soon after the date and time on which he was last seen. The only inference permissible to be drawn and based on the presumption is that the man was dead at the time when the question arose subject to a period of seven years' absence and being unheard of having elapsed before that time. The presumption stands unrebutted for failure of the contesting party to prove that such man was alive either on the date on which the dispute arose or at any time before that so as to break the period of seven years counted backwards from the date on which the question arose for determination. At what point of time the person was dead is not a matter of presumption but of evidence factual or circumstantial, and the onus of proving that the death had taken place at any given point of time or date since the disappearance or within the period of seven years lies on the person who stakes the claim, the establishment of which will depend on proof of the date or time of death."
19. Upon the bare perusal of the record, the factum of Brij Pal, husband of the plaintiff, being missing since October, 2004 is circumstantiated. Neither the police officials nor the relatives of the Brij Pal have been able to gather an inkling about his whereabouts since October, 2004. The same is also evident from the report of the SHO, PS New Delhi Railway Station. It is noteworthy that there is nothing on record to discredit the version of the plaintiff. Her C.S. No. 287/13 8/10 testimony stands uncontroverted and especially so, when the same is substantiated by the narratives and chronicles of Defendants.
20. In the instant case, the relationship of the plaintiff with the said Brij Pal has not been disputed by the defendant. In the natural course of events, it can be reasonably expected that the wife of a person would hear from him. In the instant case, the plaintiff has proven on record that the said Brij Pal has not been heard of since October, 2004. The present suit has been instituted on 30.11.2013 and the unrebutted case of the plaintiff is that the husband of the plaintiff left for his work on 19.08.2004 and has not been heard of since. It appears that the plaintiff's husband has not been heard of or from for seven years prior to the institution of the suit. The defendants have not discharged the onus of affirming that the husband of the plaintiff is alive; in fact, it is not even their case that the plaintiff's husband is alive or has been heard of by the plaintiff or her family members after 19.08.2004. In these circumstances, a presumption as to the civil death of her husband has been raised by the plaintiff before this court. This presumption has not been rebutted by the defendants and as such, the plaintiff is entitled to a declaration as to the civil death of her husband.
21. Accordingly, upon the pressing of section 108 into service amalgamated with the facts on the record, a decree of declaration declaring that Brij Pal, husband of the plaintiff succumbed to civil C.S. No. 287/13 9/10 death, is passed.
22. Original documents, if any, be returned to the parties against acknowledgment of receipt upon filing certified copies of the same.
23. There shall be no order as to costs. Decree sheet be prepared accordingly.
24. File be consigned to record room.
Announced in the open court on 03.12.2016 (Sumedh Kumar Sethi) JSCCASCJcumGuardian Judge, Dwarka Courts : Delhi/13.12.2016 C.S. No. 287/13 10/10