Delhi District Court
This Is A Suit For Declaration And ... vs Plaintif'S Case on 5 September, 2018
In the Court of Shri V.K. Gautam : Additional Senior Civil Judge of
Central District at Tis Hazari Courts, Delhi
Suit No.27604/2016
In the matter of :-
Smt. Shakuntala,
W/o Shri Om Prakash,
R/o H. No.73-B-6,
Motiyabagh Railway Colony,
Sarai Phoos, Tis Hazari Courts,
Delhi-110054
........Plaintif
VERSUS
1. The State
Through its Secretary,
Govt. of N.C.T of Delhi,
Through P.P. of the State
2. The Senior Division Finance Manager,
Northern Railways,
DRM Office, Northern Railway,
State Entry Road, New Delhi
3. The General Manager,
State Bank of India,
Pension Branch, Chandni Chowk,
Delhi-110006
4. The Dy. Commissioner,
North Delhi Municipal Corporation,
Civil Lines Zone, 16, Rajpur Road,
Delhi-110054
.....Defendants
Date of institution : 07.10.2015
Reserved for Judgment : 27.08.2018
Date of decision : 05.09.2018
CS No.27604/16 Page no. 1 of 12
Suit for Declaration and Mandatory Injunction
JUDGMENT
1. This is a suit for declaration and mandatory injunction for declaring Shri Om Prakash as dead as he has not been seen/traced by any familiar person/police since more than seven years and for direction to the defendant no.4/North DMC to issue death certificate of Shri Om Prakash. It is also prayed that the defendant no.2 be directed to issue new PPO or to take necessary action in this regard and the defendant no.3 be directed to release the pension w.e.f. 13.12.2007 to the plaintiff.
Plaintif's Case
2. In brief, it is the case of the plaintiff that she is the wife of Shri Om Prakash, son of Shri Chet Ram, resident of 73-B-6, Motiyabagh Railway Colony, Sarai Phoos, Tis Hazari, Delhi and was residing with the plaintiff and three children at the above said address. Shri Om Prakash was employed with Indian Railways and was posted as Fitter in C & W Department from where he got retired in the year 1999 on medical ground and was getting pension vide PPO No.0199020544 as per rules from the defendant no.2. It is stated that on 13.12.2007 in the early morning, the husband of the plaintiff was found missing from his residence upon which the plaintiff and other family members searched him a lot but failed to trace him. On the same day in the evening, the plaintiff lodged a report bearing DD No.19 Police Post Tis Hazari dated 13.12.2007 to this effect but the police could not trace any whereabouts of her husband. The plaintiff moved an application before the concerned Court on 20.05.2013 to this effect and the police has CS No.27604/16 Page no. 2 of 12 filed its final report/action taken report stating that as per the record of the police station, Shri Om Prakash has been missing since 13.12.2007 and his whereabouts could not be traced till date i.e. 27.05.2013. It is further stated that more than seven years have been passed and whereabouts of Shri Om Prakash are not traceable. It is further stated that the plaintiff applied for pension as per rule being the legal heir of Shri Om Prakash and after duly considering the matter, the defendant no.2 wrote letter dated 13.12.2013 and requested the defendant no.3 to release the payment to the plaintiff, however vide letter dated 18.02.2014, the defendant no.3 advised the plaintiff to get issued revised/corrigendum PPO from the Pension Sanctioning Authority to start her family pension. The defendant no.2 vide its letter dated 18.06.2014 informed the defendant no.3 that there is no need to issue new PPO as name of the plaintiff is mentioned in the original PPO and further requested the defendant no. 3 to release pension in favour of the plaintiff, however, the defendant no. 3 has not released the pension in favour of the plaintiff without any just reason or cause. Thereafter the plaintiff through her counsel sent legal notice to the defendants on 09.07.2015 thereby calling the defendant no.2 to issue new PPO and the defendant no. 3 to release the pension w.e.f. 13.12.2007 and the defendant no.4 to issue death certificate but in vain. However, the defendants no. 2 and 3 sent a vague reply to the said legal notice. It is further stated that the plaintiff is facing financial hardship and is not able to survive her life as well as life of her family members. Hence, the present suit.
CS No.27604/16 Page no. 3 of 12 Defendant's Case
3. No written statement was filed by the defendant no.1 and the defendant no.3 despite opportunity, therefore, they were proceeded ex-parte vide order dated 12.07.2017.
4. The defendant no.2/Northern Railway has filed its written statement wherein it is contended that there is no cause of action in favour of the plaintiff and against the defendant no.2 to file the present suit as the defendant no.2 had already issued PPO to the husband of the plaintiff way back in the year 1999 wherein the plaintiff has already been named as beneficiary after the death of the husband of the plaintiff. It is stated that the plaintiff has herself admitted that the defendant no.2 had already taken sufficient steps to get pension released to the plaintiff as per law and it was the defendant no.3 who was not releasing pension to the plaintiff for the reason best known to the defendant no.3. It is further stated that it is a matter of general practice that the defendant no.2 issues such PPO to its employees who retires after serving the defendant no. 2 wherein name of the alternative beneficiaries are mentioned so that in case of any uncertainty, such as mentioned in the present suit, the pension can be released to such beneficiary. It is further stated that the plaintiff is not entitled to issuance of revised/corrigendum PPO solely in her name because PPO issued in the name of the pension holder/employee of any department and merely names of the beneficiaries are added/included in the same. It is prayed that the suit be dismissed being non-maintainable qua the defendant no.2.
5. The defendant no.4/North DMC also filed its written statement wherein it is stated that the suit of the plaintiff is barred by the CS No.27604/16 Page no. 4 of 12 provisions of Section 477/478 of the DMC Act for want of service of statutory notice. It is further stated that as per the provision of Section 13 (3) of the Registration of Death & Birth Act 1968, no intimation has been submitted by the plaintiff to the defendant no.4. It is further stated that under the provisions of Section 108 of the Indian Evidence Act, 1871, a person who has not been heard for seven years is presumed to be dead but the said Section does not speak about the date and place of death of the missing person and it has to be determined by the competent court/authority on the basis of oral and documentary evidence produced before the Court. It is further stated that the plaintiff has wrongly impleaded the defendant no.4 in the array of parties for issuing the death certificate with respect to the deceased husband of the plaintiff as per Section 13 (3) of the Registration of Birth & Death Act, 1969. It is further submitted that any birth or death which has not been registered within one year of its occurrence shall be registered only on an order made by a Magistrate of the First Class or a Presidency Magistrate after verifying the correctness of the birth and death and on payment of the prescribed fee. The District Statistical Officer who is the District Registrar cannot be given the power of First Class Magistrate as the Act does not provide for delegation of these powers to any other person. It is prayed that the suit be dismissed with costs.
6. Separate replication was filed by the plaintiff to the written statement of the defendant no. 2 as well as defendant no. 4 wherein the contents of the plaint have been reiterated and the contentions of the defendants in their written statement have been denied except the admissions made.
CS No.27604/16 Page no. 5 of 12
7. Vide order dated 18.10.2016, the following issues were framed :
1 Whether the plaintiff is entitled for the decree of declaration as prayed for in the plaint? OPP 2 Whether the plaintiff is entitled for relief of mandatory injunction as prayed for in the plaint? OPP 3 Whether the suit of the plaintiff is barred by the provisions under Section 477/478 of the DMC Act for want of statutory notice? OPD-4 4 Relief.
Plaintif's Evidence.
8. The plaintiff has examined two witnesses. PW1 is the plaintiff herself who in her affidavit in evidence Ex.PW1/A has stated and reiterated on oath the contents of her plaint. She has relied upon certain documents. Ex.PW1/1 is copy of the DD entry no.19 Police Post Tis Hazari dated 13.12.2007. Ex.PW1/2 is copy of the Final Report dated 13.07.2010. Ex.PW1/3 is copy of the Final Report dated 29.03.2011. Mark A is copy of the Final Report dated 11.05.2013. Mark B is copy of the Notice/Ishthaar Public. Ex.PW1/6 (colly) is copy of the application dated 20.05.2013 and action taken report filed by the Police Station Subzi Mandi. Ex.PW1/7 is copy of the order dated 26.07.2013. Ex.PW1/8 is copy of the voter I card of Shri Om Prakash. Ex.PW1/9 is copy of the Voter identity card of the plaintiff. Ex.PW1/10 is the copy of the ration card. Ex.PW1/11 is the copy of the PPO. Mark F is the copy of the letter dated 13.12.2013. Mark G is the copy of the letter dated 18.02.2014. Mark H is the copy of the letter dated 18.06.2014. Ex.PW1/15 (colly) are the copy of legal notice dated 09.07.2015 along with postal receipt. Ex.PW1/16 is the copy of reply to the defendant no.2 dated 15.07.2015 to the said legal notice.
CS No.27604/16 Page no. 6 of 12 Ex.PW1/17 is the copy of reply to the defendant no.3 dated 01.08.2015 to the said legal notice. Ex.PW1/18 is the copy of the Final Report dated 13.12.2016.
9. PW2 is ASI Ved Prakash, Police Station Subzi Mandi who has proved the DD entry no.19, Police Post Tis Hazari dated 13.12.2007 which is Ex.PW2/1.
Defendants' Evidence
10. No evidence has been led on behalf of the defendants.
11. Final arguments have been heard and record has been carefully perused.
12. Now I shall give my issue-wise findings.
Findings Issue no.1 : Whether the plaintif is entitled for relief of declaration as prayed in the plaint? OPP Issue no. 2 : Whether the plaintif is entitled for relief of mandatory injunction as prayed for in the plaint? OPP
13. The onus to prove these issues was upon the plaintiff. The plaintiff in her examination in chief Ex.PW1/A has reiterated and reaffirmed the averments made by her in the plaint. The plaintiff has also proved copy of the voter Identity card of Shri Om Prakash (Ex.PW1/8) as well as her voter Identity card (Ex.PW1/9). PW1 has also CS No.27604/16 Page no. 7 of 12 proved copy of her ration card (Ex.PW1/10), copy of the PPO (Ex.PW1/11), copy of the letter dated 13.12.2013 (Mark F), copy of the letter dated 18.02.2014 (Mark G) and the copy of the letter dated 18.06.2014 (Mark H).
14. The plaintiff in support of her case has also proved the copy of the DD entry no.19 Police Post Tis Hazari dated 13.12.2007 (Ex.PW1/1), copy of the Final Report dated 13.07.2010 (Ex.PW1/2), copy of the Final Report dated 29.03.2011 (Ex.PW1/3), copy of the Final Report dated 11.05.2013 (Mark A), copy of the Notice/Ishthaar Public (Mark B), copy of the application dated 20.05.2013 and action taken report filed by the Police Station Subzi Mandi (Ex.PW1/6 (colly) and copy of the Final Report dated 13.12.2016 (Ex.PW1/18). Even though the documents marked as Mark A, Mark B, Mark F, Mark G and Mark H have not been proved as per Indian Evidence Act but there is no evidence led by the defendants to controvert these documents and the testimony of the plaintiff. The testimony of the plaintiff has remained unchallenged and uncontroverted.
15. A suit for declaration can be maintained only within the scope and ambit of Section 34 of the Specific Relief Act, 1963. Section 34 does not sanction every form of declaration. It sanctions only a declaration that the plaintiff is entitled to a specific legal character or to any right as to property.
16. In order to obtain relief under Section 34 of the Specific Relief Act, the plaintiff has to establish that the defendant has denied or is interested in denying the character or title of the plaintiff. Since in the present suit, the plaintiff claims that she has been deprived of various CS No.27604/16 Page no. 8 of 12 benefits which could be given to her on getting death certificate of her husband, therefore, the declaration sought here is essentially in the nature of establishing the legal character of the plaintiff so as to enable her to obtain benefits under various schemes.
17. Therefore, the plaintiff clearly makes out a case under Section 34 of the Specific Relief Act, where the declaration of legal character of the plaintiff is sought and the same is denied by the defendants.
18. Section 108 of the Indian Evidence reads as :
"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 prayed that he has not been heard of for seven years by those who would naturally have been heard of his if he had been alive, the burden of proving that he is alive is shifted to the person who affirms it."
19. The presumption under Section 108 of the Evidence Act can be drawn only if the person has not been heard of since last 7 years or more before date of filing of suit is established.
20. On the basis of oral and documentary evidence, in the shape of missing report lodged in the area police station and missing advertisement, to my mind, the plaintiff has been able to prove that Shri Om Prakash has not been seen for the last 7 years by persons who could have seen him in the ordinary course.
21. Thereafter, the onus to prove that Shri Om Prakash is not dead was on the defendants in view of Section 108 of the Indian Evidence Act. No evidence has been led on behalf of the defendants to prove CS No.27604/16 Page no. 9 of 12 that Shri Raj Kumar has been seen or heard of. Therefore, presumption under Section 108 of the Indian Evidence Act has remained unrebutted and unchallenged.
22. Hence, on the basis of evidence led by the plaintiff and presumption drawn under Section 108 of the Indian Evidence Act, the plaintiff has been able to prove that Shri Om Prakash has not been seen for the last about 11 years and the plaintiff is entitled to issuance of a death certificate.
23. In a case titled as Narbada v. Ram Dayal, AIR 1968 Raj. 48, it was held that under Section 108 of the Indian Evidence Act, presumption about the death of a person is to be drawn when the dispute is brought to the Court and death can be presumed on the date on which the suit was filed and it cannot be given a further retrospective effect.
24. Thus, declaration of civil death of Shri Om Prakash shall be effective from the date of filing of the suit in the light of judgment of Narbada v. Ram Dayal (supra).
25. The defendant no.2 has admitted in its written statement that it has issued the PPO in the year 1999 wherein the plaintiff has been named as beneficiary in the year 1999 itself. It is the case of the defendant no.2 that it has not caused any deprivation to the plaintiff in any manner. The defendant no.2 has also not denied any evidence nor has denied the case of the plaintiff that the pension has not been released to her w.e.f. 13.12.2007.
CS No.27604/16 Page no. 10 of 12
26. In view of the aforesaid observations, the issues no.1 and 2 are decided in favour of the plaintiff and against the defendants.
Issue no. 2 : Whether the suit of the plaintif is barred by the provisions of Section 477/478 of the DMC Act for want of statutory notice? OPD-2
27. The onus to prove this issue was upon the defendant no.4. No evidence has been led on behalf of the defendant no. 4 to prove this issue.
28. As per provisions of the Section 478 of the DMC Act, the service of notice is mandatory in case it is against any act done or purported to have been done in pursuance to the Delhi Municipal Corporation Act 1957 or any rule, regulation or bye-laws made thereunder. However, in the present case, the cause of action for filing the present suit has not been occasioned due to any grievance to any act of the defendant/North DMC. The present suit has been filed for seeking declaration of death of the husband of the plaintiff as his whereabouts are not known for the last more than seven years. The relief sought by the plaintiff can only be granted by the Court of law in accordance with Section 108 of the Indian Evidence Act and the defendants have no jurisdiction to grant the aforesaid relief even if the notice is served by the plaintiff in this regard. Therefore, the relief sought in the present suit cannot be sought by the plaintiff from the defendants so as to obligate the plaintiff to serve the notice under Section 477/478 of the DMC Act upon the defendant no.4. Hence, there was no requirement for the plaintiff to serve the notice under Section 478 of the DMC Act CS No.27604/16 Page no. 11 of 12 upon the defendant no.4 before filing of the suit. Accordingly, the issue no.3 is decided in favour of the plaintiff and against the defendants.
Relief
29. In view of my aforesaid issue wise findings, the suit of the plaintiff is decreed with costs and Shri Om Prakash, son of Shri Chet Ram who is missing since 13.12.2007 is declared as dead from the date of filing of the present suit i.e. 07.10.2015. A decree of mandatory injunction is also passed in favour of the plaintiff and against the defendant no. 3 for releasing the pension w.e.f. 13.12.2007 and to take necessary action in this regard. Decree sheet be prepared accordingly. File be consigned to Record Room after due compliance.
VINOD Digitally signed by
VINOD KUMAR
Announced in the Open Court
KUMAR GAUTAM
Date: 2018.09.05
on 05.09.2018 GAUTAM 16:44:19 +0530
(V.K. Gautam)
Additional Senior Civil Judge
Central District: Tis Hazari Courts: Delhi
CS No.27604/16 Page no. 12 of 12