Delhi District Court
Through Her Attorney vs State (Govt. Of Nct Of Delhi) on 17 December, 2022
IN THE COURT OF ADDL. SENIOR CIVIL JUDGE
(SHAHDARA) KARKARDOOMA COURTS, DELHI.
Presided by: Mr. Himanshu Raman Singh
Civil Suit no: 1067/20
Smt. Rajrani (Senior Citizen)
W/o Sh. Pritam Lal
R/0 497-A/2C, Mahavir Block,
Bolanath Nagar, Shahdara,
Delhi 110032
Through her attorney
Sh. Shiv Kumar
S/o Pritam Lal
R/o 497-A/2C, Mahavir Block
Bolanath Nagar, Shahdara,
Delhi 110032
... Plaintiff
Vs.
1. State (Govt. of NCT of Delhi)
Through its Chief Secretary
Delhi Secretariat
I.P. Estate, New Delhi 110002
E mail : [email protected]
2. S.D.M. Shahadara District,
DC Office Complex (Shahdara)
Nandnagri, Delhi
E mail: [email protected]
3. Deputy Commissioner
Shahdara (South) Zone
East Delhi Municipal Corporation
Shahdara, Delhi
Civil Suit no: 1067/20 Smt. Rajrani Vs. State (Govt. Of NCT of Delhi) & Ors. Page 1 of 15
4. The General Manager
Norther Railway
Northern Railway, HQ
Baroda House,
New Delhi 110001.
E mail : [email protected]
5. Punjab National Bank
Through its Manager
G.T. Road Shahdara Branch,
Shahdara, Delhi 110032.
E mail : [email protected]@pnb.co.in
.......Defendants
SUIT FOR DECLARATION AND MANDATORY
INJUNCTION
Date of Institution : 28.11.2020
Date of Decision : 17.12.2022
Decision : Decreed
JUDGMENT
1. This is a suit for declaration and mandatory injunction filed by the plaintiff Smt. Rajrani. The brief facts as narrated by the plaintiff are as under:
1.1 The plaintiff has filed this suit through her attorney Sh.
Shiv Kumar Sharma as the plaintiff is a senior citizen, aged about more than 82 years and therefore unable to attend the Court Civil Suit no: 1067/20 Smt. Rajrani Vs. State (Govt. Of NCT of Delhi) & Ors. Page 2 of 15 hearing on each and every date. It is stated that Sh. Pritam Lal S/o Late Sh. Dhirat Ram (hereinafter referred as a "Missing Person") is the husband of the plaintiff who was residing with the plaintiff and their children. The missing person was in service with Northern Railway i.e. defendant no. 4 and was lastly posted as Superintendent at New Delhi and got retired on 31.03.1991 and after that his service benefits like pension etc were given to the missing person as per rules of the Department of the defendant no. 4 vide Pension Payment Order 029/19374/PAO/DLI. The missing person was operating a saving account with the defendant no. 5 vide account no. 0125000100414006 and the plaintiff was nominated therein.
1.2. On 19.09.2012, in the evening time, after having food the missing person left his home for a walk and never returned. The plaintiff and her other family members made search for him but despite best efforts he could not be traced out. On 20.09.2012, a police complaint was lodged by the son of the plaintiff with the SHO PS Farsh Bazar vide DD No. 23A. The plaintiff got distributed/pasted handbills. Public notices were also got published in national English daily newspaper Hindustan Times dated 20.11.2012 and national Hindi daily newspaper Amar Ujala Dated 21.11.2012 but he could not be traced. Thereafter, the SHO PS Farsh Bazar issued a certificate dated 10.10.2019 stating that missing person is not traceable till date. After a lapse of considerable long time, the plaintiff several times Civil Suit no: 1067/20 Smt. Rajrani Vs. State (Govt. Of NCT of Delhi) & Ors. Page 3 of 15 contacted the concerned officials of defendant no. 4 and defendant no. 5 and requested them for releasing service benefits of her husband but they refused for the same and stated that as per law, death certificate of missing person is mandatory in order to release the service benefits etc. in favour of the plaintiff and advised the plaintiff to approach the concerned civil authority for issuance of death certificate of the missing person. Similarly, in the last week of January, 2020, when the plaintiff contacted the defendant no. 5 and requested for releasing the amount in her favour being the nominee in respect of the saving account no. 0125000100414006, but the defendant no. 5 denied for the same.
1.3. Thereafter, being aggrieved, the plaintiffs contacted the concerned Civic Authorities i.e. defendants no. 2 and 3 for issuance of Death Certificate of the said missing person, on which the officials of the concerned defendants advised the plaintiff that for applying the death certificate of missing person, declaration of death from the Civil Court of the competent jurisdiction is necessary. It is further stated by the plaintiff that it has been more than 8 years since Sh. Pritam Lal husband of the plaintiff is missing, in this circumstance, the legal death of Sh. Pritam Lal can be presumed as per law, but even on this ground, none of the defendants is ready to consider the request of the plaintiff.
1.4. A legal notice dated 20.02.2020 was served upon the Civil Suit no: 1067/20 Smt. Rajrani Vs. State (Govt. Of NCT of Delhi) & Ors. Page 4 of 15 defendants no. 1, 2 and 3 through speed post, in compliance of Section 80 CPC, 1908. The Legal Notice was duly served upon the said defendants but the same was only replied by the defendant no. 3 vide its Letter No. 260 dated 06.03.2020, wherein it is stated that Declaratory decree passed by the Hon'ble Court of Law is mandatory for issuing the death certificate. Similarly, in compliance of Section 80 CPC, 1908, legal notice dated 05.09.2020 and 08.09.2020 were also served upon the defendants no. 4 and 5 respectively on behalf of the plaintiff and the same were sent by the counsel of the plaintiff by way of email on the above-mentioned official emails-ids defendants which was duly served upon the defendants and an acknowledgement mail was also sent on behalf of the defendant no. 5 for receipt of the said legal notice but neither the defendant no. 4 nor the defendant no. 5 replied the said legal notice.
2. Defendant No. 3/Commissioner, EDMC filed a written statement and took preliminary objection that no legal, valid, or justiciable cause of action has ever arisen in favour of the plaintiffs or against the replying defendant for filing the present suit and hence, the suit is liable to be dismissed under order VII Rule 11 CPC, as against the replying defendant and suit is also liable to be dismissed under Section 477 and 478 of the DMC Act as plaintiff has not served the statutory notice upon the answering defendant prior to filing the present suit.
Civil Suit no: 1067/20 Smt. Rajrani Vs. State (Govt. Of NCT of Delhi) & Ors. Page 5 of 153. Summons of the suit were issued to the defendants and the same were returned back served. Only defendant no. 3 filed written statement and the following issues were framed:-
(1) Whether the plaintiff is entiteld for a decree of declaration to the effect that Sh. Pritam Lal S/o Sh.
Dhirat Ram, has expired and his legal status be declared as dead? OPP (2) Whether the plaintiff is entitled for a decree of mandatory injunctions hereby directing the defendant no. 2 and 3 to issue the death certificates of Sh. Pritam Lal? OPP (3) Whether the plainitff is entitled for mandatory injunction against the defendant no. 4 to release all the service and death benefits of Sh. Pritam Lal as per law? OPP (4) Whether the suit of the plaintiff is barred under Section 477/478 of the DMC Act, 1957? OPD (5) Relief.
4. In order to prove his case, the plaintiff examined PW1- Shiv Kumar in his evidence by way of affidavit Ex. PW-1/A. He has relied upon following documents:
Ex.PW1/1 : SPA dated 25.11.2020 executed by Smt.Rajrani in favour of PW1.
i.e. Sh. Shiv Kumar.
Ex.PW1/2 : Adhaar Card of Sh. Pritam Lal. Civil Suit no: 1067/20 Smt. Rajrani Vs. State (Govt. Of NCT of Delhi) & Ors. Page 6 of 15 Ex.PW1/3 : Adhaar Card of Sh. Shiv Kumar (PW1). Ex.PW1/4 : Police complaint dated 20.09.2012 vide DD no. 23-A. Ex.PW1/5 : Hand Bill circulated in area in respect of the missing of Sh.Pritam Lal. Ex.PW1/6 : National hindi daily newspaper Amar Ujala Dated 21.11.2012. Ex.PW1/7 : National English daily newspaper hindustan times dated 21.11.2012 Ex.PW1/8 : Legal notice dated 20.02.2020 alongwith postal receipt. (colly 3 pages) Ex.PW1/9 : Reply dated 06.03.2020 sent on behalf of Registrar (Birth and Death), Shahdara South Zone, EDMC. (colly 3 pages) Ex.PW1/10 : Legal notice dated 05.09.2020 and 08.09.2020 along with certificate 65 (B) Evidence Act sent to defendant no. 4 and 5 respectively sent by way of email by the Ld. Counsel of the plaintiff along with Acknowledgement receipt sent on behalf of Civil Suit no: 1067/20 Smt. Rajrani Vs. State (Govt. Of NCT of Delhi) & Ors. Page 7 of 15 defendant no. 5. (colly 6 pages) Ex.PW1/11 : Passbook of Saving Account of Sh. Pritam Lal (missing person) having his savings account in Punjab National Bank (defendant no. 5). Ex. PW1/12 : Untraced certificate dated 10.10.2019 issued by SHO PS Farsh Bazar. Ex.PW1/13 : Adhaar Card of the plaintiff. Ex.PW1/14 : Copy of water connection bill in the name of Sh. Pritam Lal. Mark C : Copy of pension payment order/certificate issued by defendant no. 4 in favour of missing person Sh. Pritam Lal.
5. Plaintiff examined PW-2: Rajender Gupta and led his evidence by way of affidavit Ex. PW2/A. He has relied upon :
Ex. PW2/1 : Aadhar card of the plaintiff . OSR
6. Plaintiff examined PW-3: Shokeen as summoned witness. He has relied upon the following document:
Ex. PW3/A : Copy of office Identity Card of Sh.
Pritam Lal duly attested by Civil Suit no: 1067/20 Smt. Rajrani Vs. State (Govt. Of NCT of Delhi) & Ors. Page 8 of 15 ASC/RPF/Delhi-M (colly 2 pages).
Mark PW3/B : Pension Payment Order of Sh.
Pritam Lal, which is duly attested by ASC/RPF/Delhi-M. Ex. PW3/C : Original/revised Pension Record of Sh. Pritam Lal i.e. pension revision sheet, receipt, summary sheets and application form etc.(colly9 pages)
7. PE was closed on 01.10.2022. The defendants failed to adduce evidence despite opportunity.
8. I have heard the arguments for both the parties and gone through the evidence on record carefully. My issue wise findings are as under:Issue Nos. 1 and 2
(1) Whether the plaintiff is entitled for a decree of declaration to the effect that Sh. Pritam Lal S/o Sh. Dhirat Ram, has expired and his legal status be declared as dead? OPP (2) Whether the plaintiff is entitled for a decree of mandatory injunctions hereby directing the defendant no. 2 and 3 to issue the death certificates of Sh. Pritam Lal? OPP Civil Suit no: 1067/20 Smt. Rajrani Vs. State (Govt. Of NCT of Delhi) & Ors. Page 9 of 15
9. Both the issues are taken up together as commons questions of law and facts arise in these issue. 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.
10. 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, 1972. 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.
11. Section 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 person in question, have not so heard of him for seven years, the presumption raised under Section 107 ceases Civil Suit no: 1067/20 Smt. Rajrani Vs. State (Govt. Of NCT of Delhi) & Ors. Page 10 of 15 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.
12. This view is affirmed in LIC of India vs. Anuradha wherein it was held that:
"Neither Section 108 of the Indian Evidence Act nor logic, reason or sense permits a presumption or assumption being drawn or made that the person or 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 Civil Suit no: 1067/20 Smt. Rajrani Vs. State (Govt. Of NCT of Delhi) & Ors. Page 11 of 15 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."
13. Upon the bare perusal of the record, the factum of Sh. Pritam Lal, husband of Smt. Rajrani being missing since 19.09.2012 is circumstanced. Neither the police officials nor the relatives of the Sh. Pritam Lal have been able to gather an inkling about his whereabouts since 19.09.2012. The same is also evident from the material on record. It is noteworthy that there is nothing on record to discredit the version of the plaintiff. Her testimony stands uncontroverted and especially so, when the same is substantiated by the narratives and chronicles of the official witnesses.
14. In the instant case, the relationship of the plaintiff with Civil Suit no: 1067/20 Smt. Rajrani Vs. State (Govt. Of NCT of Delhi) & Ors. Page 12 of 15 the said Sh. Pritam Lal have has not been disputed. 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 Sh. Pritam Lal has not been heard of since 19.09.2012. The present suit has been instituted on 28.11.2020 and the unrebutted case of the plaintiff is that the husband of the plaintiff is missing since 19.09.2012 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 19.09.2012. As a matter of fact, they remained ex-parte through out. 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. Therefore, plaintiff has successfully proved that she is entitled to a declaration that Sh. Pritam Lal be declared as presumed dead.
15. As far as the prayer for issuance of death certificate is concerned, nothing has been brought on record on behalf of the EDMC to show that death certificate cannot be granted without specific date of death being mentioned in such cases where a Civil Suit no: 1067/20 Smt. Rajrani Vs. State (Govt. Of NCT of Delhi) & Ors. Page 13 of 15 declaration of civil death has been sought from the court. Even otherwise, it seems prudent that as the declaration of civil death is being granted in respect of the husband of the plaintiff vide this judgment itself. The date of this judgment should be mentioned by the EDMC in the death certificate to be issued. Therefore, this court does not have any hesitation in decreeing the suit in favour of the plaintiff and against the defendants. Both the issues are decided in favour of the plaintiff.
Issue no. 3 (3) Whether the plaintiff is entitled for mandatory injunction against the defendant no. 4 to release all the service and death benefits of Sh. Pritam Lal as per law? OPP
16. The onus to prove this issue was on the plaintiff. Other issues have been decided in favour of the plaintiff. As a necessary corollary, defendant no. 4 who was the employer of the missing person shall release all service and death benefits to the plaintiff. Issue stands decided in favour of the plaintiff.
Issue No. 4(4) Whether the suit of the plaintiff is barred under Section 477/478 of the DMC Act, 1957? OPD
17. The onus to prove this issue was on the defendant. The defendant has failed to lead any evidence to prove the issue. This Civil Suit no: 1067/20 Smt. Rajrani Vs. State (Govt. Of NCT of Delhi) & Ors. Page 14 of 15 issue is accordingly decided against the defendant.
Issue No. 5(5) Relief
18. Upon the pressing of section 108 into service amalgamated with the facts on the record, a decree of declaration declaring that Sh. Pritam Lal , husband of the plaintiff succumbed to civil death, is passed. Death Certificate be issued to the plaintiff in respect of her husband, Sh. Pritam Lal w.e.f. the date of his judgment i.e. 17.12.2022.
19. Original documents, if any, be returned to the parties against acknowledgement oaf receipt upon filing certified copies of the same.
20. There shall be no order as to costs. Decree sheet be prepared accordingly.
21. File be consigned to Record Room.
Announced in open court on 17.12.2022 (Himanshu Raman Singh) Addl. Senior Civil Judge, Shahdara, Karkardooma Court Delhi/17.12.2022 Civil Suit no: 1067/20 Smt. Rajrani Vs. State (Govt. Of NCT of Delhi) & Ors. Page 15 of 15