Delhi District Court
Nirmla Devi vs The State (Nct Of Delhi) on 18 February, 2025
CS SCJ 1060/19 Nirmla Devi Vs. State
IN THE COURT OF SH. ARVIND DEV, CIVIL
JUDGE-09/CENTRAL DISTRICT, TIS HAZARI COURTS,
DELHI
CS SCJ No. 1060/19
CNR No. DLCT03-002483-2019
IN THE MATTER OF:-
Ms. Nirmla Devi,
W/o Sh. Om Prakash
R/o C-336, Sahjada Bagh,
Daya Basti, Onkar Nagar,
Delhi-110006 ............. Plaintiff
Versus
1.The State (Govt. Of NCT of Delhi) (through its Chief Secretary) 5th floor, A Wing, Delhi Secretariat, I.T.O. New Delhi-110002
2. State Bank of India (through its Manager) New Rohtak Road, New Delhi-110005
3. Sub Divisional Magistrate (SDM) 14, Darya Ganj, New Delhi-110002
4. Sub Registrar Death & Birth Department MSO Building, 16, Rajpura Road, Civil Lines, Delhi-110092 ............. Defendants SUIT FOR DECLARATION AND MANDATORY INJUNCTION.
Page 1/6 Digitally signed by ARVIND ARVIND DEV DEV Date: 2025.02.18 14:45:41 +0530 CS SCJ 1060/19 Nirmla Devi Vs. State Date of Institution : 11.04.2019
Date of Reserving for Judgment : 12.02.2025 Date of Judgment : 18.02.2025 EX-PARTE JUDGMENT
1. The present suit has been filed by the plaintiff with the averments that:-
That the plaintiff is the wife of Lt. Sh. Om Prakash, residing at his house no. C-336, Shahzada Bagh, Daya Basti, Onkar Nagar, Delhi-110035. Sh. Om Prakash was married to the plaintiff and they had five children namely Sh. Chanchal, Sh Chander, Sh Suraj, Sh. Dheeraj and Ms. Shivani and used to reside with his family at the above mentioned address. On 24.05.2009, Sh. Om Prakash, husband of the plaintiff went to the house of Sh. Dilip, his brother-in-law (sala) at Bhajanpura, Delhi and late night, he left for his house and was coming back on motorcycle bearing no. DL-6SZ-6166 and went missing. The plaintiff and her brother Dilip tried their best to search for Sh.
Om Prakash. On 25.05.2009, Sh. Dilip lodged a complaint with PS Bhajanpura stating that his brother-in-law Sh. Om Prakash went missing. The husband of the plaintiff has not been heard for more than 10 years. Hence, the plaintiff has filed the present suit seeking declaration that Sh. Om Prakash, S/o Sh. Sham Lal be declared dead as he has not been seen or heard of his alive for past more than 10 years and mandatory injunction for providing of death certificate of husband of plaintiff.
2. On notice, defendant no. 1 (State), defendant no. 2 (State Bank of India), defendant no. 3 (SDM, Darya Ganj) and Page 2/6 Digitally signed by ARVIND ARVIND DEV DEV Date:
2025.02.18 14:45:49 +0530 CS SCJ 1060/19 Nirmla Devi Vs. State defendant no. 4 (Sub-registrar death and birth department, MCD) did not appear before the court and were proceeded ex-parte on 29.11.2022.
3. Hence, the pertinent question to be decided in the present case is :-
a. Whether the plaintiff is entitled to claim relief of declaration that Sh. Om Prakash is now dead. b. Whether the plaintiff is entitled to a decree for mandatory injunction against the defendant no. 3 & 4 to issue death certificate of husband of plaintiff namely Sh. Om Prakash, S/o Sh. Sham Lal. On 01.08.2023, prayer clause which was deleted as the plaintiff did not wish to press this prayer.
4. The plaintiff examined herself as PW-1 and she tendered her evidence by way of affidavit which is already Ex. PW 1/A and relied upon the following documents:-
i. Ex. PW1/1 (OSR) (Colly) Aadhar Card & Voter ID of deponent.
ii. Ex. PW 1/2 (OSR) Voter ID of deponents husband. Sh. Om Prakahs.
iii. Ex. PW1/3 (colly.) (OSR) Aadhar Card of deponent's children.
iv. Mark A DD No. 58B, dated 25.05.2009, PS Bhajanpura v. Mark B Public notice circulated by SHO, PS Bhajanpura, Delhi bearing ZIP No. MNE20090594 vi. Ex. PW 1/6 Complaint dt. 31.05.2009, bearing DD No. 48B lodged with PS Sarai Rohilla, Delhi vii. Ex. PW 1/7 (OSR) Relevant pages of passbook of Saving bank account no. 01190015358 maintained by Sh. Om Prakash with SBI, New Rohtak Road, Delhi.
Page 3/6 Digitally signed by ARVIND DEV ARVIND Date: DEV 2025.02.18 14:45:58 +0530 CS SCJ 1060/19 Nirmla Devi Vs. State
5. PW-2, Sh. Chanchal, brother of plaintiff was examined. He has tendered his evidence by way of affidavit which is Ex. PW2/A and relied upon the documents already Ex.
PW1/1 to Ex. PW1/3, Mark A, Mark B, Ex. PW1/6 and Ex. PW1/7.
6. The plaintiff has examined her son Dilip as PW-3 and he relied upon his evidence by way of affidavit already Ex. PW3/A.
7. PW-4 is the summoned witness from PS Sarai Rohilla namely Ct. Vimal Kumar who produced the summoned record i.e. Original Register containing DD No. 48B, dated 31.05.2009 which is Ex. PW4/1 (OSR) regarding the missing report of the husband of the plaintiff.
8. Despite opportunities being given, none for the PW were cross-examined on behalf of the defendants as they were proceeded ex-parte and PE was closed on the instructions of the plaintiff on 24.08.2024. The matter was then fixed for final arguments.
9. Only counsel for plaintiff advanced the final arguments and no one appeared on behalf of the defendant despite opportunities being given.
10. I have heard the arguments and perused the record.
11. In the present case, admitted facts on the basis of Page 4/6 Digitally signed by ARVIND ARVIND Date:
DEV DEV 2025.02.18 14:46:07 +0530 CS SCJ 1060/19 Nirmla Devi Vs. State record are that Sh. Om Prakash, S/o Sh. Sham Lal has been missing since 24.05.2009. Thereafter, PW-2, Dilip gave missing complaint dated. 25.05.2009 at PS Bhajanpura vide DD No. 48B. Despite complaint, being lodged with the concerned authorities with respect to the same, police have not been able to trace Sh. Om Prakash, S/o Sh. Sham Lal. The said missing complaint has not been challenged or disputed by the defendants. Hence, the testimony of all the plaintiff's witnesses, clearly establishes that the plaintiff or her family members are not aware about the whereabouts of Sh. Om Prakash, S/o Sh. Sham Lal who has been missing since 24.05.2009. Therefore, for the past more than 10 years, Sh. Om Prakash has not been seen by any of the persons or heard of as alive by any of his relatives etc. who are supposed to know about him. Hence, counsel for plaintiff has relied U/s 108 Indian Evidence Act to seek declaration of Sh. Om Prakash as dead.
12. As per Section 108 IEA, the person is presumed to be dead when such person has neither be seen or heard of by the family members, friends, society etc for a continuous period of 7 years or more. The burden of establishing that such person is alive who has not been seen or heard of, for a continuous period of 7 years, as upon such party who is affirming that such person is alive.
13. In the instant case, defendant no. 1/ State and other defendants had nowhere informed that Sh. Om Prakash, S/o Sh. Sham Lal is alive in this situation as well as on the basis of evidence adduced by the plaintiff and other witnesses, it is Page 5/6 Digitally signed by ARVIND DEV ARVIND Date:
DEV 2025.02.18
14:46:15
+0530
CS SCJ 1060/19 Nirmla Devi Vs. State
clearly established that Sh. Om Prakash, S/o Sh. Sham Lal has not been seen or heard of by the plaintiff or other family members, friends, society etc. since 24.05.2009. Hence, in view of Section 108 IEA, it may be presumed that Sh. Om Prakash, S/o Sh. Sham Lal is dead. Thus the issue is decided in favor of the plaintiff and against the defendant. In view of the aforesaid findings, plaintiff is entitled to declaration of Civil death of Sh. Om Prakash, S/o Sh. Sham Lal.
14. As the above mentioned issue is decided in favor of the plaintiff, she is also entitled to the relief of mandatory injunction, as sought for in the prayer clause (b). Plaintiff is also at liberty to apply for the death certificate of Sh. Om Prakash, S/o Sh. Sham Lal before the concerned Registrar, MCD for issuance of the death certificate as per rules.
15. The suit of plaintiff is hereby decreed. No order as to cost.
16. Decree sheet be prepared accordingly.
Announced in the court
on 18.02.2025 ARVIND by
Digitally signed
ARVIND DEV
Date:
DEV 2025.02.18
14:46:23 +0530
[Arvind Dev]
Civil Judge-09, Central
Tis Hazari Courts/Delhi/ 18.02.2025 Page 6/6