Delhi District Court
Sh. Deepak Kumar vs The State on 29 April, 2023
IN THE COURT OF SH. RAMESH KUMAR-II,
ADDITIONAL DISTRICT JUDGE-01, SHAHDARA
DISTRICT, KARKARDOOMA COURTS,
DELHI
RCA DJ No.53/2019
In the matter of:-
Sh. Deepak Kumar
S/o Sh. Babu Lal
R/o H. No. B-506, New Sanjay Amar Colony,
Vishwas Nagar, Shahdara, Delhi-32.
.........Appellant
Versus
1. The State
2. East Delhi Municipal Corporation
Through its Commissioner
DSIDC Complex, Patparganj, Delhi.
3. The Incharge, Missing Squad,
Kotwali, Daryaganj, Delhi
.........Respondents
Date of Institution : 24.04.2019
Judgment passed on : 29.04.2023
JUDGMENT
1 Vide this judgment, I shall dispose of the present civil appeal under Section 96 read with Order XLI Rule 27 of Code of Civil Procedure (for short 'CPC') for setting aside the impugned judgment & decree dated 22.02.2019 passed by the court of Sh. Sushant Changotra, Ld. ASCJ (Shahdara), Karkardooma Court, Delhi (for short 'Ld. Trial Court') in civil suit No.9124/2016 wherein the suit of the appellant for declaration and mandatory injunction has been dismissed.
RCA DJ 53/19 12 Brief facts of the case as stated in the present appeal are that on 22.04.2013, the appellant herein/plaintiff has filed the suit for declaration and mandatory injunction but due to some typographical mistake in the prayer para the relief pertains to mandatory injunction could not be mentioned and to amend the prayer clause learned counsel for plaintiff had moved an application under Order VI Rule 17 CPC read with Section 151 CPC for amendment in the suit, which was allowed by learned Trial Court vide order dated 03.03.2015. Thereafter, amended plaint was taken on record and the plaintiff by way of amended suit has sought a decree of declaration thereby declaring the death of Sh. Babu Lal as civil death and decree of mandatory injunction against the respondent no.2 to issue death certificate of missing person Sh. Babu Lal as per details mentioned in the original civil suit. It is further averred that Sh. Babu Lal S/o Late Fakira was working with Delhi Development Authority on the post of Environment Assistant at Laxmi Nagar, Electrical Division No.X and he left his house for reporting his duty at Laxmi Nagar, Delhi, where he was working as a 'Safai Karamchari' with DDA and reported his duty in routine manner but not reached back at his home since 21.08.2002 and since that day, he is missing from Laxmi Nagar, Delhi and the said missing has been intimated by the relative of Sh. Babu Lal with the missing squad at Daryaganj, Delhi and since that time, Sh. Babu Lal ha not been seen by anyone in the said locality either by the family members or other person. It is further averred that after the said complaint to the said Police, a copy of the same has also been sent to the Respondent No. 3 but no fruitful result has came and the said agencies could not trace the said missing person till RCA DJ 53/19 2 date. Thereafter, plaintiff (son of Sh. Babu Lal) published a public notice through his Advocate in daily newspaper 'Rashtriya Sahara' but no one has given information in this regard. It is further averred that on the above-said facts and circumstances, it is clear that said Sh. Babu Lal has not seen from the date of his missing and also there is no chance to get any information regarding him. It is further averred that the appellant and his family members had done all the efforts by approaching nearby relatives, Police and press for getting any clue of the said Sh. Babu Lal but they have not got any information and also not seen him since the date of his missing as mentioned above. It is further averred that the said Sh. Babu Lal has not been seen more than 07 years from the date of his missing and accordingly it was prayed before Ld. Trial Court by way of the said Civil Suit to declare the said Sh. Babu Lal as civil dead and direct the competent authority to issue the death certificate. 3 Summons of suit were issued to the defendants. Defendant no.1 did not appear despite service of summons by way of publication. Defendant no.2 also stopped appearing after filing the written statement. Hence, defendant no.1 and 2 were proceeded ex parte vide order dated 26.10.2017. 4 Defendant no.2/respondent no.2 herein filed its written statement and pleaded that no legal, valid and justiciable cause of action has ever arisen in favour of the appellant. No supporting document such as FIR regarding missing person has been filed by the appellant. The Suit is not maintainable as the appellant had not served any public notice.
5 Defendant no.3/respondent No. 3 also filed its reply stating therein that the plaintiff lodged a missing report on 10.10.2002 RCA DJ 53/19 3 with P.S. Sector-49, Noida, G.B. Nagar (UP) that his father Sh. Babu Lal left his house on 21.08.2002 for his work at DDA Electrical Division No. X, Laxmi Nagar (Delhi) but didn't return back. On 29.10.2002, appellant visited the Respondent No. 3. The record of MPS upto 31.12.2002 has been destroyed. 6 From the pleadings of the parties, the following issues were framed by the Ld. Trial Court vide its order dated 15.09.2015:-
1) Whether the plaintiff is entitled to decree of declaration as prayed for? OPP
2) Whether the plaintiff is entitled to obtain death certificate of missing person Sh. Babu Lal as prayed for? OPP
3) Relief.
7 Plaintiff/appellant has examined himself as PW-1 before the Ld. Trial Court and in his evidence by way of affidavit, he reiterated and reaffirmed and stand as taken by the appellant in his plaint and relied upon the documents Ex.PW1/1 to Ex.PW1/3. The appellant has also examined PW2 Sh. Jugni. This witness tendered his affidavit Ex.PW2/A and relied upon documents Ex.PW1/1 and Ex.PW1/2. PW3 Jagbir tendered his affidavit Ex.PW3/A and the appellant closed PE on 26.11.2018. Thereafter, opportunity to lead evidence was given to the defendants, but the defendants did not lead evidence and it was closed vide order dated 21.12.2018.
8 After hearing arguments on behalf of the parties, Ld. Trial Court was pleased enough to dismiss the suit of the appellant vide its order dated 22.02.2019 thereby giving erroneous findings on issues and facts which were not at all involved in the suit 9 Aggrieved by the said judgment and order dated RCA DJ 53/19 4 22.02.2019, the Appellant/defendant no.2 preferred the present appeal mainly on the grounds that:-
a) That Ld. Trial Court failed to appreciate the documents and evidence on record as well as the written submissions filed by the appellant/plaintiff and as such the impugned judgment and decree is liable to be set aside.
b) That the impugned judgment suffers from conjectures and surmises in view of the facts and circumstances of the case emerged out of the trial of the suit, hence the impugned judgment and decree is liable to be set aside.
c) That Ld. Trial Court failed to appreciate the fact that the respondent no.3 admittedly supported the claim of the appellant and pleaded in its written statement that the appellant lodged a missing report on 10.10.2002 with PS Section 49, Noida, G.B. Nagar, (UP) that his father Sh. Babu Lal left his house on 21.08.2002 for his work at DDA Electrical Division No.X, Laxmi Nagar, Delhi bud did not return back and on 29.10.2002, appellant visited the respondent no.3 but the record of MPS upto 31.12.2002 has been destroyed, hence the impugned judgment and decree is liable to be set aside.
d) That Ld. Trial Court did not appreciate the fact that Section 108 of the Indian Evidence Act a presumption of civil death exists and the said provision does not require any declaration by the court. A suit for declaration can only be filed under RCA DJ 53/19 5 Section 34 of the Specific Relief Act. However, such declaration is to be accompanied by such further relief as may be necessary and from the fact of record, it is apparent that the appellant herein also sought the relief under mandatory injunction against the respondent no.2 to issue death certificate of missing person Sh. Babu Lal.
e) That it is undisputed 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 read with section 9 of CPC.
f) That 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.
g) That Section 107 and 108 are drafted as two Sections. In fact, 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 RCA DJ 53/19 6 as contained in Section 108. If the persons, who would have naturally and in the contrary 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 assets 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 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 six 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 the court.
h) That the said view is affirmed in the judgment referred as LIC of India Vs Anuradha, 11 (2004) 10 SCC 131; (2004) AIR SCW 2017.
i) That from the perusal of the record, the factum that Sh. Babu Lal is missing since 21.08.2002 is established. PW1 to PW2 has RCA DJ 53/19 7 categorically supported the said version in their testimonies. The respondents no.1 and 2 were proceeded ex parte and the sole contesting respondent no.2 has also categorically supported the version of the appellant in its testimony. In the instant case, relationship of the appellant with Sh. Babu Lal has not been disputed. In the natural course of event, it can be reasonably expected that the family member of a person would hear from him. In the instant case, appellant has proven on record that Sh. Babu Lal has not been heard since 21.08.2002. The present suit has been filed on 22.04.2013 and it is proved that Sh. Babu Lal has not been heard or seen for seven years prior to the institution of the present suit. The respondents have not discharged the onus of affirming that Sh. Babu Lal is alive. In these circumstances, a presumption as to the civil death of Sh. Babu Lal has been raised by the appellant before the court. This presumption has not been rebutted by the respondents and as such, appellant is entitled to a declaration as to civil death of Sh. Babu Lal.
j) that Ld. Trial Court has failed to appreciate the fact that the suit of the appellant has not been rebutted by the respondents which do not suggest the dismissal of the suit of the appellant, which were not appreciated by the Ld. Trial Court, hence the impugned judgment and decree is liable to be set aside.
RCA DJ 53/19 810 Accordingly a prayer is made to set aside the impugned order/judgment and decree dated 22.02.2019 passed by ld. Trial Court in civil suit no.9124/16.
11 Notice of this appeal was sent to all respondents. Respondent no.2 appeared in the matter. Other respondents did not appear.
12 Respondent no.2 filed its reply to the appeal denying all the assertions made therein and has prayed for dismissal of the present appeal.
13 Ld. counsel for appellant and ld. counsel for respondent no.2 both have filed their written submissions/arguments in support of their respective stands.
14 I have perused the written submissions filed on behalf of the appellant respondent no.2.
15 In written submissions it was contended on behalf of the appellant that the respondents have not discharged the onus of affirming that Sh. Babu Lal is alive and in these circumstances, a presumption as to the civil death of Sh. Babu Lal has been raised by the appellant before the court and that this presumption has not been rebutted by the respondents and as such, appellant is entitled to a declaration as to the civil death of Sh. Babu Lal. Therefore, ld. counsel for appellant has prayed to allow the present appeal in the interest of justice.
16 Per contra, it was submitted on behalf of respondent no.2 in written submissions that the Ld. Trial Court had rightly dismissed the suit as appellant/plaintiff has completely failed to state anywhere in his pleadings that the respondent no.2 is a statutory body under the obligation to registered the birth and death of persons under the provisions of law by taking the RCA DJ 53/19 9 declaratory decree from the court of law. That the Ld. Trial Court had rightly dismissed the suit as the appellant has completely failed to prove his suit and also as per the citation of High Court in the matter reported in AIR 1945 Madras 440 Bhagat Vs LIC, Madras, it was observed that in absence of probable motive of foul play or accident one has to speculate as to the cause of his disappearance, and it could not be presumed that he was dead, on the date of his disappearance and in the absence of proof that he was alive the only conclusion possible is that he was at the time the question arose (date of plaint) and thus in the absence of any orders or date of death and place of death of any person which is mandatory provisions for registration of death of any person, respondent no.2 is unable to register the death of missing person and thus the appellant has not complied with registration of missing person and he had completely failed to prove his case and thus appeal is liable to be dismissed. That the Ld. Trial Court had rightly dismissed the suit as appellant has complete failed to prove that respondent no.2 or any person as and when denied any right or any character of the plaintiff which is necessarily to be proved in the suit seeking declaration pertaining to any right or character. That the Ld. Trial Court had rightly dismissed the suit as appellant has again failed to prove that section 107 & 108 of Evidence Act are merely prescribed ruled of evidence and plaintiff has to seek declaration with consequential relief but appellant had only prayed for civil death of missing without any other reason. Ld. counsel for respondent no.2 has therefore prayed that the appeal of the appellant may be dismissed and sustained the judgment and decree dated 22.02.2019 with regard to issues and findings of the court on the issue no.3 with regard RCA DJ 53/19 10 to declaration of civil death of missing.
17 Learned Trial Court dismissed the suit holding that it was not maintainable. Learned Trial Court observed that in order to seek decree of declaration, the right to property or character of plaintiff must be denied or somebody may be interested in denying the said right or character. Learned Trial Court took the view that a declaratory suit can be maintained only within the scope and ambit of section 34 of Specific Relief Act. It also took the view that the plaintiff/appellant had not sought consequential relief and proviso of Section 34 of Specific Relief Act categorically provides that simpliciter declaration without seeking consequential relief is not maintainable and finally Learned Trial Court dismissed the suit of the plaintiff/appellant. 18 I have considered the submissions made on behalf of appellant and respondent no.2 and also perused the record including trial court record.
19 Before proceedings further, it is important to mention here that the appellant has also filed an application alongwith the present appeal under Section 5 of Limitation Act read with Section 151 CPC for condonation of delay in filing the present appeal.
20 No reply has been filed on behalf of respondents to this application.
21 I have perused the aforesaid application for condonation of delay. The main ground taken by the appellant in the said application is that as soon as the impugned judgment and decree was passed against the appellant, his previous counsel demanded a heavy amount as professional fee to file the present appeal before this court but the appellant earns Rs.12000/- per month RCA DJ 53/19 11 from private service and being a pauper person having the responsibility of his wife and a minor child living in a rent premises, could not arrange such heavy amount as professional feel to file the present appeal.
Without going into the merits of this application, delay in filing the appeal is hereby condoned. Accordingly, the present application of appellant for condonation of delay in filing the present appeal is hereby allowed and disposed off. 22 Coming now to the merits of the present appeal. 23 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.
24 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 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 RCA DJ 53/19 12 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.
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 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."RCA DJ 53/19 13
25 The view that section 34 of Specific Relief Act, 1963 is exhaustive of all kinds of declaratory reliefs and that a declaratory suit can be maintained within the scope and ambit of this provision alone has long been rejected. The Hon'ble Supreme Court in Vemareddi Ramaraghava Reddy Vs. Konduru Seshu Reddy observed, "In our opinion Section 42 of the Specific Relief Act is not exhaustive of the cases in which a declaratory decree may be made and the courts have power to grant such a decree independently of the requirements of the section." 26 The Hon'ble Supreme Court further observed that declaratory reliefs falling outside the Specific Relief Act may fall under the general provisions of Civil Procedure Code, like section 9 or Order VII Rule 7. This was reiterated in Supreme General Films Exchange Ltd. Vs. H.H. Maharaja Sir Brijnath Singhji Deo, wherein it was observed, "The result is that Section 42 merely gives statutory recognition to a well recognised type of declaratory relief and subjects it to a limitation, but it cannot be deemed to exhaust every kind of declaratory relief or to circumscribe the jurisdiction of courts to give declarations of right in appropriate cases falling outside Section 42." Therefore, under the extant law section 34 of Specific Relief Act is not the sole repository and exhaustive of the cases in which declaratory decrees may be made and the courts have the power to grant such a decree independently of the requirements of the section. Thus, if there can be a decree independent of the requirements of section 34 of Specific Relief Act, then such declarations can be granted even though no 'further relief' is capable of being granted.
27 The plaintiff had filed the suit (as amended) praying to RCA DJ 53/19 14 pass decree of declaration to declare that death of Sh. Babu Lal is a civil death and also to give necessary directions to EDMC i.e. respondent no.2 to issue death certificate of missing person Sh. Babu Lal. The plaintiff had sought consequential relief against the EDMC but despite this fact learned Trial Court has dismissed the suit of plaintiff.
28 Coming now to the evidence which was led by the plaintiff before learned Trial Court. The plaintiff (PW1) deposed entirely along the same lines as averred in the plaint. He testified, inter alia, that Sh. Babu Lal (his father) went to his duty at Laxmi Nagar but did not return to his home since 21.08.2002; that the plaintiff as well as his relatives tried to trace him but they could not succeed; that the missing report of Sh. Babu Lal was also given to Missing Person Squad, Daryaganj, Delhi; that the plaintiff also published a public notice in daily newspaper 'Rashtriya Sahara' dated 18.01.2012. PW2 Sh. Jugni (cousin of plaintiff) and PW3 Sh. Jagbir (brother in law of plaintiff) also deposed in their affidavits on the same lines as averred in the plaint. Sh. Harnam Singh, No.1805, Crime, Missing Person Squad, Daryaganj, Delhi also testified that there is no such person namely Sh. Babu Lal S/o Sh. Fakira has been seen by this department so far. The evidence of the plaintiff and his witnesses inspire confidence. I see no reason to doubt their depositions. From the evidence of the plaintiff and his witnesses it is proved that his father Sh. Babu Lal has been missing since 21.08.2002. It is also proved that sincere efforts had been made to search him. Evidence on record shows that plaintiff and/ or his relatives had made all possible efforts to trace out him out. Suit before the Trial Court was filed more than seven years later on 23.04.2013.
RCA DJ 53/19 15Thus, in terms of the provisions of section 107 and 108 of Evidence Act there is a presumption about the civil death of Sh. Babu Lal. There is no evidence of the defendants to counter plaintiff's evidence.
In view of the above, this appeal is accepted and impugned judgment and decree dated 22.02.2019 of learned Trial Court is hereby set aside. Suit of the plaintiff/appellant is decreed in the following terms:
a. A decree of declaration that Sh. Babu Lal S/o Late Fakira (father of appellant-plaintiff Sh. Deepak Kumar) died a civil death is hereby passed.
b. The concerned department/EDMC (now MCD) is directed to issue a death certificate qua death of Sh. Babu Lal S/o Late Fakira (father of appellant/plaintiff Sh. Deepak Kumar. His date of death shall be taken to be date of this judgment i.e.
29.04.2023.
c. Parties shall bear their own costs. 29 Decree sheet be prepared accordingly. 30 A copy of this order alongwith the trial court record be sent
back to the Ld. Trial Court and appeal file be consigned to Record Room as per rules.
Digitally signed by RAMESH KUMAR(Typed to the dictation directly, corrected and RAMESH Date:
pronounced in open court on 29.04.2023).
KUMAR 2023.04.29
16:43:06
+0530
(RAMESH KUMAR-II)
ADDL. DISTRICT JUDGE-01
SHADARA DISTRICT
KARKARDOOMA COURTS
DELHI
RCA DJ 53/19 16