Delhi District Court
Smt.Veena Devi vs . Govt. Of Nct Of Delhi & Ors. Page No.1 Of ... on 6 August, 2018
Suit No. 895/17
IN THE COURT OF DR. JAGMINDER SINGH
JSCC-cum-ADDITIONAL SENIOR CIVIL JUDGE
cum-GUARDIAN JUDGE, DWARKA COURTS, DELHI
Suit No. : 895/17
In the matter of :
1) Smt. Veena Devi,
W/o Sh. Damodar,
R/o RZ-10/167, Gali No.6,
Durga Park, South-West,
Delhi-110045.
........Plaintif
Versus
1) Govt. of NCT of Delhi,
Through Its Chief Secretary,
Players Building, I.P. Estate,
New Delhi.
2) South Delhi Municipal Corporation,
Through Its Deputy Commissioner,
3) SDM,
Old Tax Terminal Building,
Kapashera, New Delhi.
......Defendants
Date of institution of the suit : 22.08.2017
Final Arguments Heard on : 06.08.2018
Date of Judgment : 06.08.2018
Final Order : Decreed
Smt.Veena Devi Vs. Govt. of NCT of Delhi & Ors. Page No.1 of 10
Suit No. 895/17
SUIT FOR DECLARATION & MANDATORY INJUNCTION
JUDGMENT :
1. This is a suit for declaration of civil death & mandatory injunction to issue death certificate.
2. Brief facts necessary for the disposal of the present suit as stated in the plaint are that Sh. Damodar S/o Late Sh. Khacheru who is husband of plaintiff was a Government Employee and working in Horticulture Department as a "Chowkidar" in DDA until the date of his missing i.e. 07.03.1984. Sh. Damodar has left behind the plaintiff/wife, one son namely Sh. Satish Kumar and two daughters namely Smt. Kamlesh & Smt. Babita. Sh.Ramroop & Sh. Ramji Lal who are brothers of Sh. Damodar had already expired. Sh. Damodar was missing from 07.03.1984 and a police complaint in this regard has been lodged vide DD No.7A dated 21.03.1984 in PS Delhi Cant. Local police having investigated and found no clue of Sh. Damodar and Smt.Veena Devi Vs. Govt. of NCT of Delhi & Ors. Page No.2 of 10 Suit No. 895/17 forwarded its final report and the same was later on forwarded to the department where Sh. Damodar was working. In the year 1986, DDA/department of Sh. Damodar granted job to plaintiff on 11.06.1986 in place of missing Sh. Damodar on compensatory ground. Plaintiff along with her family members & relatives endeavored their hard to trace & to know about the whereabouts of missing Sh. Damodar but could not succeed in searching the person. Thereafter, plaintiff approached the defendants no. 2 & 3 and requested in writing for issuance of death certificate of Sh. Damodar. Defendants no. 2 & 3 have miserably failed to issue death certificate of Sh. Damodar as requested. Sh. Damodar was having some immovable properties at his native village in District Bulandsahar, UP and in village Khair, PS Khair, District Aligarh, UP and when plaintiff approached the concerned departments to transfer said property in her name, concerned departments asked the plaintiff to produce the death certificate of missing Sh. Damodar for transfer of said property. Therefore, it is requested that to issue Smt.Veena Devi Vs. Govt. of NCT of Delhi & Ors. Page No.3 of 10 Suit No. 895/17 necessary directions to defendant no.2/SDMC to issue death certificate of Sh. Damodar. Cause of action to file present suit firstly arose on 07.03.1984 when husband of the plaintiff went missing, it again arose when plaintiff got a job in place of her husband Sh. Damodar on compensatory ground in DDA, it again arose when plaintiff approached the concerned authorities for issuance of death certificate of Sh. Damodar and the cause of action still subsisting and continuing. This Court is having jurisdiction to entertain the present suit. Hence, the present suit has been filed.
3. Summons were sent to the defendants regarding the present suit. Upon service, report was filed on behalf of defendant no.3/SDM in which it was submitted that as per the field report carried out through Halka Patwari, the husband of the plaintiff is missing since last about 33 years. Statements of two witnesses regarding missing of the husband of the plaintiff was also attached with the report. Thereafter, due to continuous non-appearance on behalf of defendants no. 1 & 3, they were proceeded ex-parte vide Smt.Veena Devi Vs. Govt. of NCT of Delhi & Ors. Page No.4 of 10 Suit No. 895/17 order dated 01.02.2018. Ld. Counsel for defendant no.2/SDMC was appeared & filed WS. On the basis of pleadings of the plaintiff as well as defendant no.2/SDMC, following issues were framed:
(i) Whether the plaintiff is entitled for a decree of declaration, as prayed for? (OPP).
(ii) Whether the plaintiff is entitled for a decree of mandatory injunction in her favour and against the defendants, as prayed for? (OPP).
(iii) Relief.
4. After framing of issues, matter was fixed for plaintiff's evidence. Plaintiff examined herself as PW1 and tendered her affidavit Ex.PW1/A and she relied upon the following documents :-
(1) Ex.PW1/1 i.e. the photocopy of complaint made in PS Delhi Cant (OSR).
(2) Ex.PW1/2 i.e. the copy of affidavit dated 23.02.1987.
5. Thereafter plaintiff closed her evidence vide separate statement. Defendant no. 2 had not examined any witness and had closed defendant evidence vide separate Smt.Veena Devi Vs. Govt. of NCT of Delhi & Ors. Page No.5 of 10 Suit No. 895/17 statement of his counsel.
6. Final arguments heard. Ld. Counsel for plaintiff submitted that since more than thirty four years have been passed when Sh.Damodar disappeared on 07/03/1984 and therefore, a presumption is required to be drawn that Sh. Damodar has been died since statutory period of seven years as envisaged under Section 108 of Indian Evidence Act has elapsed as he was not found despite best efforts. Thus, the defendant no.2/SDMC is under a mandate to issue death certificate of the deceased Sh. Damodar to the plaintiff being legal heir/wife of the deceased. Ld. Counsel for defendant no.2/SDMC submitted that the plaintiff had to prove with strict proof regarding death of Sh. Damodar and the SDMC issues the death certificate only when the death happens actually.
7. I have heard the submissions of both parties and perused the record including evidence as well as documents placed on record.
8. The plaintiff of the suit had examined herself as Smt.Veena Devi Vs. Govt. of NCT of Delhi & Ors. Page No.6 of 10 Suit No. 895/17 PW1 who is wife of missing person namely Sh. Damodar. PW1 in her affidavit Ex.PW1/A, submitted that her husband Sh. Damodar is missing from 07/03/1984 and since then his whereabouts are not known. She had also filed a report in this regard to concerned PS Delhi Cant on 21/03/1984 vide DD No.7A Ex.PW1/1 but her husband remained missing. In her affidavit Ex.PW1/A, she had reiterated the version of her plaint. According to plaintiff, police also could not trace her husband despite giving her missing report. She had further submitted in her affidavit/examination-in-chief that when her husband remained untraced, then she was granted a job in place on her husband on compensatory ground on 11.06.1986. During her cross-examination, the facts stated by her in her examination-in-chief were not disputed or questioned on behalf of defendant no.2. No any defendant witness was examined to rebut the averments made by the plaintiff.
9. Nothing placed on record by the defendants that the averments made by the plaintiff in her plaint as well as Smt.Veena Devi Vs. Govt. of NCT of Delhi & Ors. Page No.7 of 10 Suit No. 895/17 in evidence are false regarding the fact that Sh. Damodar is missing since year 1984. As per Section 108 of Indian Evidence Act, if plaintiff proves the fact that any missing person is not seen or heard about since last more than 7 years, then burden of proof shifts upon the defendant to disprove this fact or to prove that the person in question is seen or heard about within 7 years from his missing. There is no evidence placed on record by the defendants that Sh.Damodar was seen or was heard about during the period of 7 years or even till date since his missing in year 1984.
10. In Narbada Vs. Ram Dayal AIR 1968 Raj 48, it was held that under Section 108 of 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.
11. In view of the aforesaid discussion and on the basis of evidence led by the plaintiff and presumption drawn under Section 108 of Indian Evidence Act, plaintiff has Smt.Veena Devi Vs. Govt. of NCT of Delhi & Ors. Page No.8 of 10 Suit No. 895/17 successfully made out a case for declaration that the husband of the plaintiff who has not been seen or heard about since last about thirty four years, be declared dead.
12. Hence, issue no.1 is decided in favour of the plaintiff.
13. As the plaintiff had proved the case regarding presumption of death of his husband namely Sh.Damodar S/o Late Sh.Khacheru, therefore, the SDMC/defendant no.2 is liable to issue the death certificate to the plaintiff regarding civil death of his husband namely Sh.Damodar S/o Late Sh.Khacheru. Therefore, issue no.2 is also decided in favour of the plaintiff and against the defendant no.2.
14. Relief :- Sh.Damodar S/o Late Sh.Khacheru R/o RZ-10/167, Gali No.6, Durga Park, South-West, Delhi-110045 is hereby declared dead. This declaration of civil death of Sh. Damodar shall be effected from the date of filing of the suit i.e. 22.08.2017 in the light of the judgment of Narbada Vs. Ram Dayal AIR 1968 Raj 48. Accordingly, defendant no. 2/SDMC is directed to register the death entry of Smt.Veena Devi Vs. Govt. of NCT of Delhi & Ors. Page No.9 of 10 Suit No. 895/17 Sh.Damodar S/o Late Sh.Khacheru i.e. husband of the plaintiff in the records of defendant no.2/SDMC and issue death certificate of deceased Sh.Damodar S/o Late Sh.Khacheru to the plaintiff. Suit of the plaintiff is decreed.
15. No order as to costs.
16. Decree sheet be prepared accordingly.
17. File be consigned to record room after due compliance.
Announced in the open court Digitally signed on this 06th day of August, 2018 by JAGMINDER SINGH JAGMINDER Date:
SINGH 2018.08.06
16:42:30
+0530
(DR. JAGMINDER SINGH)
JSCC-ASCJ-cum-Guardian Judge,
Dwarka Courts : Delhi
Note: This judgment is having Ten pages and each page is bearing my signatures.
(DR. JAGMINDER SINGH) JSCC-ASCJ-cum-Guardian Judge, Dwarka Courts : Delhi Smt.Veena Devi Vs. Govt. of NCT of Delhi & Ors. Page No.10 of 10