Delhi District Court
Suman Lata vs The State on 4 August, 2018
IN THE COURT OF MS. ANU AGGARWAL,
ASCJJSCCGJ (SHAHDARA),
KARKARDOOMA COURTS, DELHI
Suit No.: 7514/16
IN THE MATTER OF:
Suman Lata
W/o late Sunil Kumar
R/o C65, Gali no.7, C Block,
West Jyoti Nagar, Delhi
.....Plaintiff
VERSUS
1. The State
Govt of NCT of Delhi.
Through Chief Secretary
Delhi Sachiwalaya,
I. P. Extn., Delhi.
2. The S.D.M. District Shahdara
Waiver Complex Nand Nagri,
Delhi110094
3. Municipal Corporation of Delhi
Through D. C.
Keshav Chowk, North Zone,
Shahdara, Delhi32. ......Defendants
DATE OF INSTITUTION : 17.01.2015
DATE OF RESERVING THE ORDER : 25.07.2018
DATE OF DECISION : 04.08.2018
DECISION : Decred
SUIT FOR DECLARATION U/S 108 OF INDIAN
EVIDENCE ACT FOR CIVIL DEATH OF SH. SUNIL
KUMAR, S/O LATE JAI PRAKASH
JUDGMENT
1. By this judgment, I shall dispose off suit filed by the plaintiff for Suit No. 7514/16 Suman Lata vs. State etc. Page No. 1/9 declaration u/s 108 of Indian evidence act for civil death of Sh. Sunil kumar, s/o late Jai Prakash as against defendants.
2. Facts necessary for disposal of present suit as per plaint are as follows:
2.a It is the case of plaintiff that her husband Sunil Kumar is missing since 26.04.2003. It is stated that her husband had gone to meet his brother Naveen Kumar on 26.04.2003 but did not return. Naveen Kumar made complaint with PS Sadar on 29.04.2003 regarding missing of Sunil Kumar. He disclosed in the complaint that one man hired Scorpio Bearing no.HR 20G2836 at 6:30 AM on 27.04.2003 but did not return. DD no.14 dt. 29.04.2003 was recorded at PS Sadar District Gurgaon and later on, FIR no.423/04 u/s 365/302 IPC got registered at PS Sadar. It is stated that Sunil Kumar is untraced till date. Hence, present suit.
3. Defendant no.1 and 2 filed their record stated that as per report of Patwari, Shahdara Sunil Kumar is missing since 26.04.2003 and since then his whereabouts are not known. They were proceeded exparte vide order dt. 12.01.2017.
4. Defendant no.3/EDMC filed written statement raising following pleas:
4.a It is stated that the present suit is barred u/s 477/478 of DMC Act 1957 for want of statutory notice. It is stated that this court has no territorial jurisdiction to entertain the present suit as no cause of action has arisen within the jurisdiction of this court. It is stated that Sunil Kumar went missing from Gurgaon and his missing report was also lodged at Gurgaon. Therefore, this court has no jurisdiction to entertain the present suit. It is stated that the plaintiff has not approached defendant no.3 for issuance of death certificate and hence, suit is liable to be dismissed.
5. In replication to the WS of defendant no.3, the plaintiff has reiterated Suit No. 7514/16 Suman Lata vs. State etc. Page No. 2/9 the same facts as in the plaint.
6. Out of the pleadings of the parties, following issues were framed vide order dt. 25.11.2016 ISSUES
1. Whether the plaintiff is entitled for a decreeof declaration as prayed for in para (a) of the prayer clause? OPP
2. Whether the plaintiff is entitled for seeking direction against defendant no.3 to register civil death of Sunil Kumar in the record of Municipal Corporation and for issuance of death certificate?OPP
3. Relief.
7. The plaintiff has examined three witnesses in her evidence:
8.a The plaintiff has examined herself as PW1 and has tendered her evidence by way of affidavit Ex. PW1/A. She has relied upon following documents :
1. Copy of Voter ID Card which is Ex.PW1/1 now MarkA.
2. Copy of Ration Card is Ex.PW1/2.
3. Copy of LIC bond is Ex.PW1/3.
4. Copy of higher purchase receipt which is Ex.PW1/4 now MarkB.
5.Copy of FIR Ex.PW1/5 now MarkC.
6. Copy of report dt. 29.08.2014 as Ex.PW1/6.
8.b PW2 Sh. Ram Chandra has tendered his affidavit of evidence as Ex. PW2/A. He relied upon his identity card which is Ex.PW2/1.
8.c PW3 Ms. Basanti has tendered her affidavit of evidence as Ex.PW3/A. She relied upon her identity card which is Ex.PW3/1.
8.d No other witness was examined by the plaintiff and plaintiff's Suit No. 7514/16 Suman Lata vs. State etc. Page No. 3/9 evidence was closed on 06.07.2018.
9. The defendant no.3 did not led evidence and DE was closed vide order dt. 25.07.2018.
10. I have heard the arguments and have gone through the record.
11. My issue wise findings are as follows : ISSUE NO. 1.
Whether the plaintiff is entitled for a decree of declaration as prayed for in para (a) of the prayer clause? OPP 12.1 The defendant no.3 has raised the issue of territorial jurisdiction in the written statement. The plaintiff has stated that this court has territorial jurisdiction to entertain the present suit in the replication. Though, no separate issue has been framed with respect to territorial jurisdiction, but since the defendant no.3 has raised the issue of territorial jurisdiction at the very first opportunity, I shall first be decided the issue of territorial jurisdiction. Arguments have been submitted by both the sides on the territorial jurisdiction. Ld. Counsel for defendant no.3 has argued that Sunil Kumar went missing from Gurgaon and missing complaint has also been lodged at Gurgaon. He has argued that since no cause of action has taken place within the jurisdiction of this court, this court has no territorial jurisdiction to entertain the present suit.
12.2 Ld. Counsel for plaintiff has argued that Sunil Kumar went missing when he left Gurgaon for Delhi and therefore, Delhi Courts have jurisdiction to entertain the present suit.
12.3 PW1 has deposed that her husband Sh. Sunil Kumar had gone to meet his brother Naveen Kumar on 26.04.2003 but went missing. She has deposed that her husband made a call to her that he would return by 27.04.2003 but he did not return. Naveen Kumar got a case FIR no.423/04 u/s Suit No. 7514/16 Suman Lata vs. State etc. Page No. 4/9 365/302 IPC registered at PS Sadar. In the cross examination, the defendant no.3 has not disputed that a call was made by Sunil Kumar to the plaintiff. It is also not disputed that he had left Gurgaon.
12.4 PW2 has deposed in the cross examination that when Sunil Kumar started for Delhi from Gurgaon, a call was received from Gurgaon that he has already left. Similarly, PW2 has deposed that a call is received from Sunil Kumar that he has started from Gurgaon for Delhi and thereafter, he went missing.
12.5 Therefore, it is not disputed that Sunil Kumar was residing within the jurisdiction of this court. He had gone to Gurgaon from his house at West Jyoti Nagar Delhi. He started from Gurgaon for Delhi but went missing enroute. Therefore, he could have went missing either from Gurgaon or from Delhi. There is nothing on record to show that Sunil Kumar went missing only from the jurisdiction of Gurgaon and not Delhi. The fact that his brother got an FIR registered at PS Sadar, Gurgaon and his vehicle was found at Badaun, UP is no ground for presuming that he went missing from Gurgaon and not from Delhi. The exact place fromwhere Sunil Kumar went missing is not known. In view of the same, the balance of probability lies in favour of the plaintiff and therefore, this court has territorial jurisdiction to entertain the present suit.
13 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 1963 r/w Section 9 of CPC, 1908.
13.a 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 Suit No. 7514/16 Suman Lata vs. State etc. Page No. 5/9 who affirms it.
13.b 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 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 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.
13.c This view is affirmed in LIC of India v. Anuradha wherein it was held that :
"Neither Section 108 of the Evidence Act nor logic, reason or sense permits a presumption or assumption being drawn or made that the person not 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 Suit No. 7514/16 Suman Lata vs. State etc. Page No. 6/9 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 evidencefactual 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.d From the perusal of the record, the factum that Sh. Sunil Kumar is missing since 26.04.2003 is established. PW1 Smt. Suman Lata has categorically stated that her husband had gone to Gurgaon on 26.04.2003 and never returned. Her brother in law had also filed police complaint regarding missing of Sunil Kumar and FIR bearing no.423/04 under Section 365/302 IPC was got registered. The testimony of all the Pws that Sunil Kumar went missing on 26.04.2013 has gone unrebutted. The defendant no.1 and 2 has filed report on 13.01.2016 that Sunil Kumar is missing since 26.04.2003 and his whereabouts are not known. The said report is unchallenged. Further, the plaintiff has filed the copy of record from PS Sadar Ex.PW1/16 stating that the body of Sunil Kumar has not been recovered till date.
13.e In the instant case, the relationship of the plaintiffs with Sh. Sunil Kumar has not been disputed. In the natural course of events, it can be reasonably expected that the family member of a person would hear from him. In the instant case, the plaintiff has proven on record that the said Sh. Sunil Kumar has not been heard of since 26.04.2003. The present suit has been filed on 17.01.2015 and it is proved that Sh. Sunil Kumar has not been heard or seen for seven years prior to the institution of the present suit. The defendants have not discharged the onus of affirming that Sh. Sunil Kumar is alive. In Suit No. 7514/16 Suman Lata vs. State etc. Page No. 7/9 these circumstances, a presumption as to the civil death of Sh. Sunil Kumar has been raised by the plaintiff before the court. This presumption has not been rebutted by the defendants and as such, the plaintiffs are entitled to a declaration as to the civil death of Sh. Sunil Kumar. Therefore, plaintiffs have successfully proved that they are entitled to a declaration that Sh. Sunil Kumar be declared as presumed dead.
14.f On the appreciation of the entire evidence, it seems prudent that as the declaration of civil death is being granted in respect of Sh. Sunil Kumar vide this judgment itself, the date of this judgment be considered as date of civil death of Sunil Kumar.
14.g Accordingly, upon the pressing of section 108 into service amalgamated with the facts on the record, a decree of declaration declaring Sunil Kumar succumbed to civil death, is passed.
ISSUE NO. 2.
Whether the plaintiff is entitled for seeking direction against defendant no.3 to register civil death of Sunil Kumar in the record of Municipal Corporation and for issuance of death certificate?OPP
15. In view of finding of issue no.1, defendant no.3 is directed to register the civil death of Sh. Sunil Kumar, s/o late Jai Prakash and the date of judgment be considered as the date of civil death. The defendant no.3 is directed to issue death certificate in view of aforesaid direction.
Relief
16. Suit of the plaintiff is decreed with the following reliefs :
1. A decree of declaration is passed in favour of plaintiff declaring Sunil Kumar has succumbed to civil death and the date of judgment be considered as date of civil death of Sunil Kumar;
Suit No. 7514/16 Suman Lata vs. State etc. Page No. 8/92. The defendant no. 3 is directed to issue death certificate of Sunil Kumar with the date of judgment of date of civil death to the plaintiffs.
17. There shall be no order as to costs. Decree sheet be prepared accordingly.
18. File be consigned to Record Room.
Digitally
signed by
Announced in open Court. ANU
Delhi Dated the 04.08.2018 ANU AGGARWAL
AGGARWAL Date:
This Judgment contains 9 pages 2018.08.04
and each paper is signed by me. 15:59:13
+0530
(Typed under my direct dictation)
(Anu Aggarwal)
ASCJJSCCGJ (SHAHDARA)
KKD Courts, Delhi
Suit No. 7514/16 Suman Lata vs. State etc. Page No. 9/9