Delhi District Court
Smt. Veerbala Mathur vs East Delhi Municipal Corporation on 16 April, 2021
IN THE COURT OF M. P. SINGH, ADDITIONAL DISTRICT JUDGE03,
EAST DISTRICT, KARKARDOOMA COURTS: DELHI
RCA 36/2020
Smt. Veerbala Mathur,
W/o Sh. Kameshwar Dayal @ Kameshwar Dayal Mathur,
R/o C40, East End Apartments, Mayur Vihar,
Delhi 110096. ............. Appellant
Versus
1. East Delhi Municipal Corporation
Through its Epidemiologist cum Registrar
Shahdara (South) Zone, 419,
Udyog Sadan, Patparganj Industrial Area,
Delhi - 110096.
2. Delhi Development Authority
Through Commissioner (Group Housing)
ABLK, 1st Floor Vikas Sadan, I.N.A,
New Delhi - 110023.
3. Mrs. Neeta Mathur W/o Late Sunil Mathur,
R/o S264, SFS Flats, Sheikh Sarai,
New Delhi - 110017.
4. Mrs. Nidhi Mathur W/o Sh. Sunil Mathur,
R/o 525, Tulip, New Minaal Residency,
JK Road, Bhopal, Madhya Pradesh - 462023
5. Santosh Dayal Mathur
S/o Sh. Kameshwar Dayal @ Kamleshwar Dayal Mathur,
R/o 1632 Hill Top View Ct, San Jose,
CA95138, USA. .............. Respondents.
Appeal efiled on 10.11.2020
Arguments concluded on 06.03.2021
Judgment pronounced on 16.04.2021
JUDGMENT
1. This is plaintiff's appeal impugning decree dt. 15.09.2020 passed by the RCA 36/2020 Veerbala Mathur v. EDMC & Others Page 1 of 14 court of learned Senior Civil Judge whereby and whereunder her suit for declaration and permanent injunction was dismissed.
2. On 20.05.2009 at about 06:00 am Sh. Kameshwar Dayal @ Kameshwar Dayal Mathur, plaintiff's husband went out for a morning walk, but never to return. Despite best efforts no trace of him could be found anywhere. Police complaint (Ex. PW1/5) was lodged at PS New Ashok Nagar on 21.05.2009 and which was registered vide DD no. 23A (Ex. PW4/1). A classified (Ex. PW1/7) too was published in Hindustan Times (Delhi Edition) on 23.05.2019. However, they were of no avail. Despite lapse of more than seven years there was no news of his whereabouts.
3. Now, as per the plaintiff, her husband having gone missing for more than seven years has brought in its wake several problems. Mutation of property/properties is not being done in favour of the legal heirs for want of her missing husband's death certificate. Further, property no. C40, East End Apartments, Mayur Vihar, Delhi - 96 is in the joint name of plaintiff and her missing husband. This property is required to be converted to freehold and its conveyance deed executed in plaintiff's favour. All the legal heirs of Sh. Kameshwar Dayal @ Kameshwar Dayal Mathur gave their assent to it, but Delhi Development Authority (DDA /respondent no.2 - defendant no.2) has put an objection owing to absence of his death certificate. On these averments, plaintiff sought the following reliefs:
(a) Declaration that Sh. Kameshwar Dayal @ Kameshwar Dayal Mathur, s/o late Mohan Behari Lal Mathur r/o C40, East End Apartments, Mayur Vihar, Delhi - 96, who is missing and unheard of since 20.05.2019, be presumed to be dead, and
(b) Mandatory injunction directing defendant no.2 to complete and RCA 36/2020 Veerbala Mathur v. EDMC & Others Page 2 of 14 process the freehold of C40, East End Apartments, Mayur Vihar, Delhi - 96.
4. East Delhi Municipal Corporation (EDMC/ respondent no.1 - defendant no.1) in its written statement, filed on 26.08.2017, stated that suit was not maintainable for want of statutory notice under sections 477/478 of Delhi Municipal Corporation Act (for short 'DMC Act'); that plaintiff made no sincere efforts to search her missing husband; that it (EDMC) is under a statutory duty to register deaths and births and that death of a missing person can be registered only upon a declaratory decree of court of competent jurisdiction. Denying other factual averments of the plaintiff for want of knowledge, it sought dismissal of the suit.
5. DDA (respondent no.2 - defendant no.2) in its written statement, filed on 02.03.2017, stated that section 53B of Delhi Development Act barred the suit; that plaintiff did not furnish her husband's death certificate/ other relevant documents and complete other codal formalities and as such her application for mutation and freehold conversion of the aforesaid property was not processed. Denying other factual averments of the plaintiff for want of knowledge, it sought dismissal of the suit.
6. Mrs. Neeta Mathur (respondent no.3 - defendant no.3), Mrs. Nidhi Mathur (respondent no.4 - defendant no.4) and Mr. Santosh Dayal Mathur (respondent no.5 - defendant no.5) are the children of plaintiff and her missing husband. Trial Court record shows that they did not file their written statement and suffered the proceedings ex parte vide order dt. 14.09.2017.
7. Issues framed on 14.09.2017 by the Trial Court are as follows.
1. Whether the plaintiff is entitled to declaration that Sh.
RCA 36/2020 Veerbala Mathur v. EDMC & Others Page 3 of 14Kameshwar Dayal @ Kameshwar Dayal Mathur is unheard of since 20.05.2009 who are inform to police vide DD no.23A dated 21.05.2009 and thereby be declared as Civil death? OPP
2. Relief.
8. In plaintiff's evidence, following witnesses were examined.
PW1 Veerbala Mathur, the plaintiff herself. Her deposition is along the same lines as her averments in the plaint.
PW2 K. Verma. He is plaintiff's neighbor. He deposed, inter alia, that he and plaintiff's husband used to go out for morning walks together; that on 20.05.2009 he had gone for morning walk alone; that when he last met plaintiff's husband, his mental condition was normal. PW41 HC Kapil from PS New Ashok Nagar. He exhibited on record the missing person report of plaintiff's husband vide DD no. 23 (Ex. PW4/1).
9. In defendants' evidence, no witness was examined.
10. Learned Trial Court dismissed the suit holding that it was not maintainable. Trial Court observed that sections 107 and 108 of Evidence Act do not create any substantial right or cause of action in favour of any person. Relying on Narayan Nayak v. State Bank of India & Others 2 and Deokali Kuer v. Kedar Nath3 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. On the basis of Narayan Nayak (supra) and Zena Gladys Freemantle v. Herbert Charles Freemantle4 learned Trial Court was also of the view that no suit lies for a declaration that a person not having been heard of 1 There is no PW3 in plaintiff's evidence.
2 2002 SCC OnLine Cal 902 3 1912 SCC OnLine Cal 162 : (1912) ILR 39 Cal 704 4 1949 SCC OnLine Bom 49 : (1950) 52 Bom LR 641 RCA 36/2020 Veerbala Mathur v. EDMC & Others Page 4 of 14 for 7 years was deemed to be dead, unless the suitor seeks to establish that he is entitled to any legal character or to any right as to any property. Learned Trial Court observed that suit is not covered within the ambit of section 34 of Specific Relief Act as plaintiff does not seek declaration her own legal character or right, but declaration of status of some other person.
11. Arguments heard. Record perused.
12. 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. Supreme Court in Vemareddi Ramaraghava Reddy v. Konduru Seshu Reddy 5 observed, "In our opinion Section 42 of the Specific Relief Act 6 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." 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. v. H.H. Maharaja Sir Brijnath Singhji Deo 7, 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." Deokali (supra) which learned 5 AIR 1967 SC 436 6 Section 34 of Specific Relief Act, 1963 is reproduction of section 42 of the earlier Specific Relief Act, 1877.
7 AIR 1975 SC 1810 : (1975) 2 SCC 530 RCA 36/2020 Veerbala Mathur v. EDMC & Others Page 5 of 14 Trial Court, cited in support of its reasoning, already stands distinguished in Supreme General Films (supra) by observing that what actually fell for consideration therein was the issue of court fee and not whether declaration could be given outside the scope and ambit of the provision of Specific Relief Act. Supreme Court distinguished Deokali (supra) by observing, "In Deokali case the plaintiff's suit was not thrown out on a preliminary ground, but the plaintiff was given an opportunity to amend the plaint by asking for a consequential relief for setting aside the impugned decree and paying an additional court fee. The case could have only an indirect bearing on the case now before us where no question of a payment of any additional court fee after adding a consequential relief involved arises. The observations made in Deokali case must be read in the context of what arose for decision there." 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.
13. Next, the view that plaintiff has not sought declaration of her own legal character or right as required under section 34 of Specific Relief Act, but declaration of status of some other person, i.e. declaration of civil death of her husband, does not appear to be correct. Firstly, it is already observed hereinabove that section 34 of Specific Relief Act is not the sole repository and exhaustive of the cases in which declaratory decrees may be made. Secondly, when the plaintiff seeks a declaration that her husband is missing and unheard of for more than seven years, she is in effect seeking a declaration of her own status of RCA 36/2020 Veerbala Mathur v. EDMC & Others Page 6 of 14 widowhood. A declaration of her husband's civil death is actually a declaration of her own status of widowhood. Therefore, to my mind, it is not correct to say that plaintiff has not sought declaration of her own status, character or right.
14. Next, there are judicial decisions to hold that a suit for declaration of civil death of a person unheard of for more than seven years is very much maintainable. Nagpur Bench of Bombay High Court in Swati & Others v. Abhay & Others8 has held such a suit to be maintainable. It was observed, "In the light of the dictum laid down by the Apex Court as above 9, I am of the firm opinion that the Civil Court acting under section 9, has inherent powers in its plenary jurisdiction de hors with reference to Section 34 of Specific Relief Act to grant relief qua section 108 of the Evidence Act. Therefore, the reason that section 34 of the Specific Relief Act was required to be called in aid does not appear to be sound." Alka Sharma v. Union of India & Others 10 involved a civil suit for declaration of civil death of husband of the plaintiff therein who had been missing since 19.02.1993. Trial Court as also the First Appellate Court dismissed the suit. Allahabad High Court held that presumption as to the civil death of a missing person as laid down in sections 107 and 108 of Evidence Act should have been drawn and that for this there was no requirement of a police report under section 173 of Criminal Procedure Code. The suit was decreed in second appeal and declaration of civil death of the husband of the plaintiff therein was granted. Vijaya Shrikant Revale v. Shirish Shrikant Revale & Others11 was a case for grant of succession certificate under section 372 of Indian Succession Act in respect of securities and properties of one Shrikant 8 MANU/MH/0334/2016 9 Reference here is to LIC of India v. Anuradha Sharma, AIR 2004 SC 2070. 10 MANU/UP/0209/2020 11 2016 SCC OnLine Bom 1898 RCA 36/2020 Veerbala Mathur v. EDMC & Others Page 7 of 14 Vishnupant Revale who had been missing for more than seven years. It was held that a civil court has the power to grant declaratory relief of civil death. It was observed, "It is true that only Civil Court has power to give relief of declaration in such matters. The inquiry under section 372 of the Act is limited. However, the Court which conducts the inquiry under Section 372 of the Act is a civil Court and therefore the said Court is competent to decide the issue of declaration of death of Shrikant Vishnupant Revale." Sanju Devi v. State12 involved a case for grant of succession certificate. Trial Court observed that proceedings under Indian Succession Act were summary in nature and that the petitioner ought to file a civil suit to establish the factum of death. Delhi High Court upheld this decision of Trial Court and observed that it is necessary that a civil court passes a decree for declaration of death of the missing person. The bottomline therefore is that there are judicial decision to hold that a civil court has the power to grant the declaratory relief of civil death of a person who goes missing for more than seven years.
15. Further, there is an observation of learned Trial Court that no suit lies for a declaration that a person not having been heard of for 7 years was deemed to be dead, unless the suitor seeks to establish that he is entitled to any legal character or to any right as to any property. To my mind, this observation is not correct. In the case at hand, the suitor, besides the declaratory relief of declaration of civil death, has in addition sought the relief mandatory injunction to DDA to complete and process the freehold of C40, East End Apartments, Mayur Vihar, Delhi -
96. The point is that plaintiff/ suitor Veerbala Mathur is not seeking declaration of civil death alone, she is also seeking to establish her right to a property. And in a suit for such a relief qua right to a property, evidence in terms of provisions of 12 2014 SCC OnLine Del 65 RCA 36/2020 Veerbala Mathur v. EDMC & Others Page 8 of 14 Evidence Act can very well be led. It is true that sections 107 and 108 of Evidence Act do not create any substantial right or cause of action in favour of any person, but in a suit seeking a right to a property, evidence under these provisions of Evidence Act can very well be given.
16. Therefore, the basis on which learned Trial Court held the suit to be not maintainable, cannot be sustained for the aforesaid multiple reasons.
17. We now come to the assertion of DDA (respondent no.2 - defendant no.2) as taken in its written statement that section 53B of Delhi Development Act, 1957 barred the suit. I do not think that this objection is tenable. I hold so for two reasons.
I) Firstly, in this case, there is an averment in the plaint that plaintiff had approached DDA (respondent no.2 - defendant no.2) for conversion of property no. C40, East End Apartments, Mayur Vihar, Delhi - 96 to freehold and for execution of its conveyance deed in her favour; that all the legal heirs of Sh. Kameshwar Dayal @ Kameshwar Dayal Mathur had given their assent to it, but DDA (respondent no.2 - defendant no.2) put an objection owing to absence of his death certificate. DDA (respondent no.2 - defendant no.2) in its written statement states that plaintiff had not furnished her husband's death certificate/ other relevant documents and did not complete other codal formalities and as such her application for mutation and freehold conversion of the aforesaid property was not processed. Thus, from the pleadings it is clear that plaintiff had already approached DDA with its representations and grievances and agitated its contentions before it prior to filing of the suit. The same is therefore sufficient notice to DDA. The main purpose of section 53B of the Act of 1957 is that DDA is not RCA 36/2020 Veerbala Mathur v. EDMC & Others Page 9 of 14 surprised by institution of cases against it sans prior information. The purpose of this provision is to give notice to DDA of the facts on which plaintiff wishes to rely for the purpose of seeking relief from the court. In this case, it is clear from the pleadings of plaintiff and that of DDA that latter had already been informed and apprised of the problem. Therefore, the purpose of section 53B of the Act or section 80 of CPC is fully served through previous representation to DDA by plaintiff.
II) Secondly, the basic object of 53B of Delhi Development Act, 1957 is to prevent matters from coming to court. And once the matter has reached the court and is contested, the suit ought not be dismissed on technical grounds. In this regard, reliance can be had to the report of Col. A. B. Singh (through LRs) v. Shri Chunnilal Sawhney and Others 13, wherein it was observed:
In any case, this issue is no longer res integra inasmuch as, it has been held by a Division Bench judgment of this court in the case of Yashoda Kumari v. MCD14 that once there is a contest to the suit, the suit cannot be held to be barred for not giving of the notice under Section 53B inasmuch as the basic object of Section 53B, like Section 80 CPC is to prevent the matters from coming to court and once the matter reach the court and are contested, the suit should not be dismissed on such technical grounds. The relevant observations of the Division Bench of this court in the decision of the case Yashoda Kumari (supra) are as under:
7. Section 80, CPC affords two options to the plaintiff. He may either file a suit against the Government or the public officer after serving two months notice under subsection 1 or he may file it without serving the notice and for this seek the leave of the Court 13 2011 SCC OnLine Del 4289 14 AIR 2004 Del 225 RCA 36/2020 Veerbala Mathur v. EDMC & Others Page 10 of 14 under subsection 2 on satisfying it that an immediate and urgent relief was required in the facts and circumstances of the case. He can do this by filing an accompanying application to show the urgency which is to be considered and disposed of by the Court. In the event it is rejected, the Court has to return the plaint to the plaintiff who could refile it after service of two months notice under the proviso of Section 80.
8. The object of Section 80 notice is to afford the Government or the public officer an opportunity to examine the nature of the claim to settle it, if so advised and to avoid any futile litigation and to save the public money and time which would be otherwise wasted on unnecessary litigation.
9. The Supreme Court in Raghunath Das v. Union of India15, holding this:
"The object of the notice contemplated by Section 80, CPC is to give to the concerned Government and public officers opportunity to reconsider the legal position and to make amends or settle the claim, if so advised without litigation. The legislative intention behind that section is that public money and time should not be wasted on unnecessary litigation and the Government and the public officers should be given a reasonable opportunity to examine the claim made against them lest they should be drawn into avoidable litigation. The purpose of law is advancement of justice. The provisions in Section 80 are not intended to be used as booby trap against ignorant and illiterate persons."
11. Apart from this, we find that the appellant's suit was already registered by the Court first and ex parte interim order was also passed in this. It was thereafter transferred to District Court along with the application for grant of leave. From this it could also be easily presumed that the Court had impliedly granted the leave to institute the suit or that the notice stood waived in the facts and circumstances of the case. This aspect seems to have gone totally unnoticed with Trial Court proceedings mechanically in the matter 15 MANU/SC/ 0406/1968: [1969] 1 SCR 450 RCA 36/2020 Veerbala Mathur v. EDMC & Others Page 11 of 14 to dismiss the suit for want of notice under Section 80, CPC.
14. But this apart, taking in regard that this Court had registered the suit and granted the stay order and that respondents had contested it all through, even notice under Section 53B should be deemed waived in the facts and circumstances of the case. After all the purpose of notice under Section 53B of DDA Act is the same as that of Section 80, CPC i.e. to bring the claim to the authority's notice so that it may concede or contest it. Once the authority had contested it on merits even at preliminary stage, it could not complain of nonservice of notice under Section 53B now. Nor could it be held fatal to justify the dismissal of the suit.
15. Viewed this, we allow this appeal and set aside the impugned dismissal order. Technically this would revive appellant's suit for consideration of appellant's application for grant or refusal of leave but we feel that much water had flowed down since and doing so would be an exercise in futility because parties have already contested the suit on merit all through and all these years. It would be ridiculous and hypertechnical to take them back to square one for a fresh debate on service of two months' notice under Section 80, CPC or Section 53B of DDA Act. Both notices shall, therefore, be deemed waived in the facts and circumstances of the case and appellant's suit No. 316 shall be revived and disposed of under law on merit.
18. We now come to the assertions of EDMC (respondent no.1 - defendant no.1) as taken in its written statement that suit was not maintainable for want of statutory notice under sections 477/478 of DMC Act. For exactly the very same reasons as set out in paragraph number 17 (II) hereinabove, this plea is not tenable.
19. This court thus holds that the present suit is maintainable. The decision of learned Trial Court holding that the suit is not maintainable is reversed.
20. Now to the evidence on the trial court record. Plaintiff (PW1) deposed RCA 36/2020 Veerbala Mathur v. EDMC & Others Page 12 of 14 entirely along the same lines as averred in the plaint. She testified, inter alia, that on 20.05.2009 her husband, aged 76 years, went out for morning walk, but did not return; that enquiries were made from several persons in nearby areas about his whereabouts, but to no avail; that local police was contacted; that formal complaint (Ex. PW1/5) was lodged in local police station; that search continued even thereafter; that pamphlet (Ex. PW1/6) was also got published and circulated in newspaper; that a classified (Ex. PW1/7) was published in Hindustan Times. PW2 Mr. K. Verma, plaintiff's neighbour, gave oral evidence, inter alia, to the effect that he and plaintiff's husband used to go out for morning walks together; that on 20.05.2009 he had gone for morning walk alone; that on 20.05.2009 when plaintiff's husband did not return from morning walk at his usual time, frantic search was made for him, but to no avail; that search lasted for several days; that when he last met plaintiff's husband, his mental condition was normal. PW4 HC Kapil from PS New Ashok Nagar is a formal witness. He exhibited on record the missing person report of plaintiff's husband vide DD no. 23 (Ex. PW4/1). The evidence of the plaintiff and her witnesses inspire confidence. I see no reason to doubt their depositions. From the evidence of the plaintiff and her witnesses it is proved that her husband Sh. Kameshwar Dayal @ Kameshwar Dayal Mathur has been missing since 20.05.2009. It is also proved that sincere efforts had been made to search him. Evidence on record shows that plaintiff and/ or her relatives had made all possible efforts to trace out him out. Suit before the Trial Court was filed more than seven years later on 22.07.2016. Thus, in terms of the provisions of section 107 and 108 of Evidence Act there is a presumption about the civil death of Sh. Kameshwar Dayal @ Kameshwar Dayal Mathur. There is no evidence of the defendants to counter plaintiff's evidence. It is pertinent to mention here that defendants in their pleadings have denied plaintiff's factual RCA 36/2020 Veerbala Mathur v. EDMC & Others Page 13 of 14 averments for want of knowledge.
21. In view of the above, this appeal is accepted. Impugned decree dt. 15.09.2020 of learned Trial Court stands reversed. Suit of the appellant plaintiff is decreed in the following terms: (a) A decree of declaration that Sh. Kameshwar Dayal @ Kameshwar Dayal Mathur (husband of appellant - plaintiff Ms. Veerbala Mathur) died a civil death is hereby passed. The concerned department/EDMC shall issue a Death Certificate qua death of Sh. Kameshwar Dayal @ Kameshwar Dayal Mathur (husband of appellant - plaintiff Ms. Veerbala Mathur). His date of death shall be taken to be the date of this judgment, that is, 16.04.2021. (b) Mandatory injunction is hereby issued to DDA to complete and process the freehold conversion of C40, East End Apartments, Mayur Vihar, Delhi - 96 as per the applicable rules and regulations, and (c) Parties shall bear their own costs.
22. Decree sheet be drawn up.
23. Trial Court record be sent back with a copy of this judgment. Appeal file be consigned to record room.
Digitally signed by MURARIMURARI PRASAD SINGH Location: Court PRASAD No.7, Karkardooma Announced through video conference SINGH Courts, Delhi Date: 2021.04.16 15:42:59 +0530 on 16th April, 2021 M. P. Singh Addl. District Judge03 (East) Karkardooma Courts/ Delhi 16.04.2021 RCA 36/2020 Veerbala Mathur v. EDMC & Others Page 14 of 14