Delhi District Court
Smt. Anita Devi vs The State on 4 October, 2018
IN THE COURT OF SH. SUNIL KUMAR: JSCCCUMASCJCUM GDN.
JUDGE: NORTH DISTRICT, ROHINI COURTS: DELHI
Suit No.114517
1.Smt. Anita Devi
W/o Pradeep Kumar
R/o H.No.355, Vill. Prahlad Pur Bangar,
NorthWest, Delhi110042.
............. plaintiff
Vs.
1. The State
Govt. of NCT of Delhi
Delhi Secretariat, IP Estate, New Delhi
2. North Delhi Municipal Corporation
Through its Commissioner
CIVIC Centre, MCD Head Quarter
JLN Marg, New Delhi.
3. SDM,
Naya Bans, Alipur, Delhi.
4. SHO
PS Bawana, Delhi
............. defendants
Date of Institution of Suit : 22.09.2017
Date of reserve for judgment : 24.09.2018
Date of announcement of Judgment : 04.10.2018
Suit No. 1145/17 Page no. 1 of 6
Anita Devi vs. State
SUIT FOR DECLARATION / DIRECTIONS
JUDGMENT:
1. Vide this judgment, I shall dispose off the suit filed by the plaintiff against the defendants for declaration of the death of Mr. Pradeep Kumar who is her husband.
2. In the plaint, the plaintiff has averred that husband of the plaintiff namely Sh. Pradeep Kumar s/o Sh. Dharambir went missing on 07.09.2007 and a complaint in this regard was made to the concerned Police Chowki Shahbad Dairy at Bawana Police Station on 08.09.2007 vide DD no.7 but the police officials neither made any investigation nor made any untrace report about the husband of the plaintiff. That plaintiff even circulated the publication for tracing her husband in the "Gumshuda Talash Kendra" at Bawana, Delhi. That the plaintiff moved another application with the MCD on 21.03.2017 through her local councilor but they directed the plaintiff to first lodge a FIR or submit the report of missing complaint and then submit it to the SDM concerned for appropriate further order to issue the said declaration certificate. That as per the status letter provided to the plaintiff by the police officials, the missing FIR of Sh. Pradeep Kumar was disposed of on the order of Addl.
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Anita Devi vs. State
DCP. That it has been about more than ten years, the above said Sh. Pradeep Kumar has not been traced so far and police official of the concerned police station are also unable to trace him neither alive nor dead. Hence, present petition has been filed by plaintiff being his wife/legal heir for declaration of Sh. Pradeep Kumar s/o Sh. Dharambir as a dead person.
3. Thereafter, summons were issued to defendants and status report received from the defendant no.3 and WS was filed on behalf of defendant no.2 /MCD. It is stated on the report of the SDM that Sh. Pradeep Kumar s/o Sh. Dharambir is missing since 07.09.2007 from his house as per the local enquiry conducted by the field staff of the division.
4. As per the WS of defendant no.2 that the present suit is premature in favour of the plaintiff and against the defendant. As per the rule laid down by Govt. of India, the death certificate of the missing person viz. Sh. Pradeep Kumar s/o Sh. Dharambir r/o H.No.Vill. Prahladpur, NorthWest, Delhi110042, stated to be missing since 07.09.2007 can only be issued after declaration of death of the missing person by the competent court of law under Sec. 107 & 108 of Indian Evidence Act, 1872.
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Anita Devi vs. State
5. The present suit has not been contested on behalf of defendant no.1 & 4.
6. Thereafter, after completion of the pleadings, following issues were framed : Issue no.1 Whether the plaintiff is entitled to decree of declaration, as prayed for?OPP Issue no.2 Relief.
7. Thereafter, after framing of the issues, matter was listed for PE. In order to prove her case, plaintiff has examined herself as PW1 and tendered her evidence by way of affidavit Ex.PW1/1 and relied upon the document Ex.PW1/A to Ex.PW1/D. Thereafter, PE was closed.
8. No DE was lead on behalf of the defendant no.2 & 3.
Thereafter, DE was closed and matter was listed for final arguments.
9. I heard final arguments on behalf of parties and perused the record carefully.
10.After considering the submissions of ld. counsel for the parties, evidence on record as well as documents filed on record, my findings on the above said issue is as under
that : Suit No. 1145/17 Page no. 4 of 6 Anita Devi vs. State It is not under dispute that plaintiff is the legally wedded wife of Sh. Pradeep Kumar s/o Sh. Dharambir who is stated to be missing since 07.09.2007 and in this regard, a complaint Ex.PW1/A was lodged and also a publication Ex.PW1/B was published. To prove her case plaintiff has also placed on record the copy of the letter to MCD and the complaint to SHO, PS Bawana along with the status report of police Ex.PW1/C & Ex.PW1/D. Section 108 of the Indian Evidence Act 1872 says that the burden of proving that a person is alive who has not been heard for seven years is on the person who affirms it. It shows that if a person is not heard for seven years by those who would naturally have heard him if he had been alive, it may be presumed that he is dead. By the testimony of PW1, it has been proved that Sh. Pradeep Kumar s/o Sh. Dharambir, husband of PW1 has not been heard for more than seven years by his relatives, friends and by those who would naturally have heard of him if he had been alive, therefore, I am of the view that in view of Section 108 of Indian Evidence Act 1872, it may be presumed that he is dead and it may be declared that he is dead.
In the light of the above discussions and the fact that since there is no trace of Sh. Pradeep Kumar s/o Suit No. 1145/17 Page no. 5 of 6 Anita Devi vs. State Sh. Dharambir and he has not been heard alive by the plaintiffs or by any of his relatives, friends and family members and approximately a period of seven years has already been passed, it is held that the plaintiff is entitled for the relief of declaration and the husband of the plaintiff namely Sh. Pradeep Kumar s/o Sh. Dharambir is hereby declared as dead person and the concerned authority/ MCD is directed to issue death certificate in the name of husband of the plaintiff i.e, Sh. Pradeep Kumar s/o Sh. Dharambir R/o H.No.327, Vill. Pehladpur Bangar, Delhi, Narela, Delih40. Decreesheet be prepared accordingly. No order as to costs. File be Digitally signed by consigned to record room. SUNIL SUNIL KUMAR KUMAR Date: 2018.10.05 16:53:52 +0530 Announced in the open court (SUNIL KUMAR) In the day of 4th October, 2018 JSCCCUMASCJCUM GDN. JUDGE: NORTHDISTRICT, ROHINI COURTS: DELHI.
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Anita Devi vs. State