Delhi District Court
Raj Kumar vs The State on 24 January, 2023
Page 1 of 9
IN THE COURT OF CIVIL JUDGE-01: SOUTH WEST
DISTRICT: DWARKA COURT: NEW DELHI
Unique case ID No: CSSCJ/ 302/21
CNR NO. DLSW030007742021
IN THE MATTER OF:
Raj Kumar
S/o. Sh. Moti Lal
R/o. RZ-74, Gali No.3,
Dabri Main Extension,
New Delhi-110045. ......... Plaintiff
Versus
1. The State
Through its Chief Secretary
NCT of Delhi, Delhi Secretariat
I.P. Estate, New Delhi-110002.
2. SHO P.S. Dabri
New Delhi. ......... Defendants
Date of filing : 01.03.2021
Date of Institution : 02.03.2021
Date of pronouncing judgment : 24.01.2023
SUIT FOR DECLARATION
JUDGMENT
1. Present suit has been instituted by plaintiff for declaration that plaintiff's son namely Sh. Sushil Kumar s/o Raj Kumar is dead.
2. It is averred that Sh. Sushil Kumar left the home i.e., House No. RZ74 Gali No.3 Dabri Extension New Delhi on 15.12.2009, without informing to anyone in the family and since then he is missing and its where about is not known by anyone.
ASHISH Digitally by ASHISH signed The Plaintiffs and their family members had made their bestKUMAR Date:
KUMAR MEENA
3. MEENA 2023.01.24 16:41:33 +05'30' Civil Suit No. 302/21 Raj Kumar vs. State and anr.
Page 2 of 9effort to search the missing person Sh. Sushil Kumar, ultimately finding no clue about his presence anywhere, the father of the Raj Kumar lodged the report in connection of missing of Sh. Sushil Kumar in Police Station Dabri New Delhi on 16.12.2009 vide DD No. 3A in PS Dabri.
4. It is submitted that the Petitioner was also lodged a report before the missing person Squad and this regard a general public declaration along with photograph was also done by Missing Person Squad. It is submitted that the Petitioner approached to several authority to get the petitioner son be traced but all in vain and consequently upon filing an RTI the defendant no.2 has clearly intimated that the son of plaintiff is untraced hence the present suit proper order/certificate /declaration, before this court.
5. It is well settled law that a person unheard for seven years from the date of his missing or report, may be deemed to have met with civil death and Mr. Sushil Kumar is Missing since 16.12.2009 almost 11 yrs. Approximately. It is further averred that there is no impediment to the grant of declaration of death in accordance of the provision of law. As per section 108 of the Evidence Act. It is submitted that cause of action arose after the lapse of seven years i.e. from day i.e. 16.12.2009 missing of missing of Sh. Mr. Sushil Kumar S/O Raj Kumar, and the cause of action is still continue.
6. It is further submitted that the parties the suit reside at Delhi, the missing report was also lodged on 16.12.2009 at PS Dabri New Delhi which is comes under the jurisdiction of this Courts, hence this Court is necessary and proper territorial and pecuniary jurisdiction to try and adjudicate the present suit. ASHISH Digitally signed by ASHISH KUMAR KUMAR MEENA Date: 2023.01.24 MEENA 16:41:43 +05'30' Civil Suit No. 302/21 Raj Kumar vs. State and anr.
Page 3 of 97. Hence, plaintiff seeks the following reliefs:
a) A decree of declaration declaring that son of Plaintiff Mr. Sushil Kumar S/O Raj Kumar is dead.
(b) Any other relief(s)
8. Summons of the suit were served upon the defendant no.1 on 5.4.2021 and defendant no.2 on 31.3.2021.
9. Defendant no.2 has filed the WS. In the WS, it is submitted that a missing report of Mr. Sushil Kumar have been received in Police Station Dabri Vide DD No. 3A, whereabout to search the Missing Person have been done as per Procedure but till date, whereabout of the Missing Person Sushil Kumar S/O Raj Kumar R/O Z-74, Gali No.3, Dabri Main Extension New Delhi 110045 is not known. It is further submitted that some contents of plaint are matter of record and needs no reply.
10. On 12.04.2022 the following issues were framed by the Ld. Predecessor:
1) Whether the plaintiff is entitled to a decree of declaration that son of the plaintiff Sh. Sushil Kumar having date of birth as 16.4.1977 be declared as dead as on 15.12.2009?
...OPP.
2) Relief.
11. The plaintiff only examined one witness on his behalf i.e., the plaintiff who stepped into the witness box and examined himself as PW1. In his testimony, PW1 tendered his evidence by way of affidavit being Ex.PW1/A and he reiterated the contents of the plaint and also relied upon the following documents: ASHISH Digitally signed by ASHISH KUMAR KUMAR MEENA Date: 2023.01.24 Civil Suit No. 302/21 Raj Kumar vs. State and anr.
MEENA 16:41:51 +05'30' Page 4 of 9
1) Copy of election card is Ex.PW1/1.
2) Copy of Ration card is Ex.PW1/2.
3) Copy of 10th class Certificate of Sh. Sushil Kumar is Ex.PW1/3.
4) The copy of DD entry is Ex.PW1/4.
5) The copy of newspaper (part) is Ex.PW1/5.
6) Copy of complaint is Ex.PW1/6.
7) Copy of RTI report is Ex.PW1/7.
12. It is further to be noted that PW1 was not cross-examined by the defendants despite opportunities. PE was closed on 06.06.2022. thereafter, Defendants were given opportunity to lead D.E but no evidence was put forward on their behalf. Hence D.E was closed.
13. Thereafter, final arguments were heard.
14. During the final arguments, Ld. Counsel for plaintiff argued that the suit of the plaintiff should be decreed as the testimony of PW1 remains uncontroverted along with the corroborative evidence on the record. Ld. Counsel for plaintiff also adverted to copy of election card, copy of ration card, 10th class certificate of Sh. Sushil Kumar, Copy of DD entry, copy of newspaper (part), copy of complaint and copy of RTI report. It is further to be noted that no objection has been raised by the defendants in present matter.
15. Heard. Perused. Considered.
Issue wise finding
16. Issue No.1: Whether the plaintiff is entitled to a decree of declaration that son of the plaintiff Sh. Sushil Kumar having ASHISH Digitally signed by ASHISH KUMAR KUMAR MEENA Date: 2023.01.24 Civil Suit No. 302/21 Raj Kumar vs. State and anr.
MEENA 16:42:01 +05'30' Page 5 of 9 date of birth as 16.4.1977 be declared as dead as on 15.12.2009?
Burden to prove the said issues is upon plaintiff. In order to prove his case on a better footing, it was imperative for the plaintiff to lead convincing evidence to show that his son namely Sh. Sushil Kumar is missing since 15.12.2009. Therefore, he may be presumed dead.
17. Before proceeding further, it would be appropriate to summarize provisions with respect to civil death. It is well settled law that a declaration as to civil death is a declaration as to the status of a person. Therefore, 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 CPC.
18. 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 "When the question is whether a man is alive or dead, and it is shown that he was alive within thirty years, the burden of proving that he is dead is on the person who affirms it". However, Section 108 of the Act is an exception to Section 107 of the Act, which propounds that "Provided that when the question is 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 if he had been alive, the burden of proving that he is alive is shifted to the person who affirms it.'
19. It is also clear that section 108 is the exception to Section 107 of the IEA. When the human life shown to be in existence, at Digitally signed ASHISH byKUMAR ASHISH a given point of time which according to Section 107 ought to be MEENA KUMAR Date:
2023.01.24 Civil Suit No. 302/21 Raj Kumar vs. State and anr. MEENA 16:42:10 +05'30' Page 6 of 9 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 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 such presumption is not permitted unless period of seven years has elapsed. An occasion for raising the presumption would arise only when the question is raised in a Court. This view is affirmed in LIC of India vs. Anuradha, AIR 2004. SC 2070 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 ASHISH Digitally signed by ASHISH KUMAR KUMAR MEENA Date:
2023.01.24 Civil Suit No. 302/21 Raj Kumar vs. State and anr. MEENA 16:42:17 +05'30' Page 7 of 9 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."
20. In present case, Sh. Sushil Kumar s/o Raj Kumar/Plaintiff is missing since 15.12.2009. Neither the police officials nor the relatives of the Sh. Sushil Kumar have been able to gather any information about his whereabouts since date of his missing. The same is also evident from the material on record. As per written statement submitted by the defendant no.2, it is admitted that PS Dabri registered a missing complaint of Sh. Sushil Kumar vide DD NO. 3A dated 16.12.2009, which is Ex PW1/4. Further, as per reply submitted by defendant no.2 on 23.01.2023, it is admitted that missing report was lodged at PS Dabri as mentioned above. It is also admitted that despite several effort Sh. Sushil Kumar could not be found and the register containing missing report of Sh. Sushil Kumar has been destroyed vide order no. 2977-
3017/HAR/DWD dated 03.03.2020. ASHISH Digitally signed by ASHISH KUMAR KUMAR MEENA Date: 2023.01.24 MEENA 16:42:28 +05'30' Civil Suit No. 302/21 Raj Kumar vs. State and anr. Page 8 of 9
21. In present case, the relationship of the Plaintiff with the said Sh. Sushil Kumar has not been disputed. In the natural course of events, it can be reasonably expected that the father of a person would hear from him. In the instant case, the Plaintiff has successfully proven on record that the said Sh. Sushil Kumar has not been heard of since 15.12.2009. The present suit has been instituted on 01.03.2021. It appears that the Plaintiff son i.e. Sh. Sushil Kumar has not been heard of or from for about eleven (11) years prior to the institution of the suit. Further, the defendants have not discharged the onus of affirming that the son of the Plaintiff No is alive or has been heard by the any person after 15.12.2009. In fact, written statement and reply of defendant no.2 supports the version of plaintiff.
22. The testimony of PW1 has remained uncontroverted. Reference can be placed upon the Judgement of Hon'ble High Court of Delhi in M/s. Eco Lab I.MC.N vs. Eco Labs Ltd., 2011(185) DLT 664, wherein it was held that if the defendant has failed to cross-examine the plaintiff, the evidence of plaintiff is to be presumed to be correct. In view of the fact that the testimony of PW1 has remained unrebutted, his testimony on oath is accepted as correct. There is no reason to disbelieve the same.
23. In these circumstances, a presumption as to the civil death of his son 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 Sh. Sushil Kumar S/o Sh. Raj Kumar (Plaintiff). Therefore, Plaintiff has successfully proved that he is entitled to a declaration that Sh.
Sushil Kumar be declared as presumed dead. ASHISH Digitally signed by ASHISH KUMAR KUMAR MEENA Date: 2023.01.24 MEENA 16:42:37 +05'30' Civil Suit No. 302/21 Raj Kumar vs. State and anr. Page 9 of 9
Therefore, in view of discussion above, the issue stands decided in favour of the Plaintiff.
24. Issue No.2: Relief.
In view of issue-wise finding, this Court is of the considered opinion that the suit of the plaintiff deserves to be decreed and is accordingly decreed to the extent that the plaintiff is entitled to a declaration as to the civil death of his son namely Sh. Sushil Kumar. A decree of declaration declaring that Sh. Sushil Kumar, Son of the Plaintiff succumbed to civil death, is passed.
25. Decree sheet be prepared accordingly.
26. Original documents, if any, be returned to the parties against acknowledgement of receipt upon filing certified copies of the same.
27. Parties to bear their own cost. File be Consigned to Record Room after due compliance.
ASHISH Digitally signed
by ASHISH
Announced in the open court on 24.01.2023 KUMAR KUMAR MEENA
Date: 2023.01.24
MEENA 16:42:44 +05'30'
(Ashish Kumar Meena)
Civil Judge-01(SW)
Dwarka Courts, New Delhi
24.01.2023
It is certified that the present judgment runs into nine pages ASHISH Digitally signed by ASHISH KUMAR and each page bear my signature.
KUMAR MEENA
Date: 2023.01.24
MEENA 16:42:53 +05'30'
(Ashish Kumar Meena)
Civil Judge-01(SW)
Dwarka Courts, New Delhi
24.01.2023
Civil Suit No. 302/21 Raj Kumar vs. State and anr.