Delhi District Court
Smt. Vinita Jain vs Municipal Corporation Of Delhi (East) on 28 July, 2021
IN THE COURT OF M. P. SINGH, ADDITIONAL DISTRICT AND
SESSIONS JUDGE, DELHI
RCA 32/2020
1. Smt. Vinita Jain, w/o Sh. Rakesh Jain,
R/o 126A, Gharonda Neem Ka Banger,
Flat No. F4, Patparganj Village,
Delhi
2. Sh. Akshit Jain, s/o Sh. Rakesh Jain,
R/o 126A, Gharonda Neem Ka Banger,
Flat No. F4, Patparganj Village,
Delhi ............. Appellants
Versus
1. Municipal Corporation of Delhi (East)
Through its Commissioner
2. SHO, PS Pandav Nagar
Delhi - 110092
3. S.D.M. (East),
Government of NCT of Delhi
Geeta Colony, Delhi
4. The State .............. Respondents
Appeal filed on 07.10.2020
Judgment pronounced on 28.07.2021
JUDGMENT
1. This is plaintiffs' appeal impugning decree dt. 09.09.2020 passed by the court of learned Senior Civil Judge whereby and whereunder their suit for declaration and mandatory injunction was dismissed. Parties shall be referred to as per their ranks before learned Trial Court.
Digitally signed by MURARI PRASAD SINGH MURARI Location: Court No.7, PRASAD Karkardooma SINGH Courts, Delhi Date: 2021.07.28 13:13:11 +0530 RCA 32/2020 Vinita Jain & Anr. v. MCD (East) & Ors. Page 1 of 14 2. Facts may be taken note of:
I) Sh. Rakesh Jain, husband of plaintiff no.1 Ms. Vinita Jain and father of plaintiff no.2 Akshit Jain, was working as LDC with Transport Department, Government of NCT of Delhi. On 21.01.2009 as usual in the morning he left for his office situated at Mayur Vihar, Delhi. However, he did not return. The next day i.e. on 22.01.2009 plaintiff no.1 Vinita Jain and her nephew Sushant lodged a missing report with the local police station vide DD No. 19A. Extensive search for him was made, but to no avail. Police officials of the local police station also tried their best to trace him out. Hue and cry notice was published. Publication in newspaper was also issued. These efforts bore no fruit. On 07.05.2016 police officials of Police Station Pandav Nagar submitted an untraceable report to the office where Rakesh Jain used to work and forwarded copy of the same to plaintiff no.1 Vinita.
II) Plaintiff no.2 Akshit Jain was a minor when his father Rakesh Jain went missing on 21.01.2009. He is now a major. It is stated that there is no other Class I legal heir of Rakesh Jain. Today, on a query put by me, through videoconference, plaintiff no.2/appellant no.2 Akshit Jain states that his grandmother had passed away about sixseven years ago from today. He states that she had died before filing of the civil suit. In other words, as on the date of filing of the civil suit (suit filed on 03.06.2016) there were no Class I heirs of Sh. Rakesh Jain, except for the two appellants.
Digitally signed by MURARI PRASAD SINGH MURARI Location: Court No.7, PRASAD Karkardooma SINGH Courts, Delhi Date: 2021.07.28 13:13:20 +0530 RCA 32/2020 Vinita Jain & Anr. v. MCD (East) & Ors. Page 2 of 14
III) Rakesh Jain had a bank account and two lockers with Bank of India, Mayur Vihar, Delhi. One of the lockers was in his own name and the other one was jointly with his mother Smt. Chander Kala Jain. As Rakesh Jain went missing, these two lockers could not be operated since 22.01.2009. Transport Department office, where Rakesh Jain worked, requires declaration of his death. Plaintiffs too require declaration of his death for disposal of properties that were in Rakesh Jain's name, who has not been heard of for the last more than 7 years.
IV) On these averments, plaintiffs filed the suit on 03.06.2016 and sought following reliefs: (a) declaratory decree that Shri Rakesh Jain, husband of plaintiff no.1 and father of plaintiff no.2, is no more alive and not in existence, (b) mandatory injunction directing the defendants to make enter in their records that Shri Rakesh Jain son of Shri Rai Chand Jain is no more alive and SDM/ MCD be directed to issue a death certificate, and (c) any other order as the court may deem fit and proper.
3. East Delhi Municipal Corporation (EDMC) in its written statement, filed on 01.03.2018, 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 plaintiffs made no sincere efforts to search Shri Rakesh Jain; 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 Digitally signed by MURARI PRASAD SINGH MURARI Location: Court No.7, PRASAD Karkardooma SINGH Courts, Delhi Date:
2021.07.28 13:13:29 +0530 RCA 32/2020 Vinita Jain & Anr. v. MCD (East) & Ors. Page 3 of 14 the plaintiffs for want of knowledge, it sought dismissal of the suit.
4. SHO of PS Pandav Nagar in its written statement, filed on 14.10.2016, stated that missing report of Rakesh Jain was lodged vide DD no. 19A on 22.01.2009; that during the course of search wireless messages were sent to all the SSPs in India, missing person form and hue and cry notices were issued and request for newspaper publication was also made; that call details of Rakesh Jain's mobile phone were obtained, but no clue was found and that untraceable report was submitted to Transport Department.
5. Plaintiffs in their replication, filed on 04.06.2018, in response to the written statement of EDMC have reiterated their averments as set out in their plaint.
6. Issues framed on 14.09.2017 by learned Trial Court were:
1. Whether the plaintiff is entitled to declaration against the defendants that Sh. Rakesh Jain, husband of P1 and father of P2 be declared dead, in view of not traceable since 21.09.2009 having missing report vide DD no.19A dated 22.01.2009? OPP
2. Relief.
7. In plaintiffs' evidence, following witnesses were examined.
PW1 Vinita Jain, plaintiff no.1. Her deposition is along the same lines as averred in the plaint.
PW2 Akshit Jain, plaintiff no.2. His deposition too is along the same lines as averred in the plaint.
PW3 Vineet Joshi, an official from Bank of India, Mayur Vihar Phase Digitally signed by MURARI PRASAD SINGH MURARI Location: Court No.7, PRASAD Karkardooma SINGH Courts, Delhi Date:
2021.07.28 13:13:40 +0530 RCA 32/2020 Vinita Jain & Anr. v. MCD (East) & Ors. Page 4 of 14 I, Delhi 91. He appeared with the bank statement of account (Ex. PW3/2) of Rakesh Jain for the period from 01.04.2009 to 19.05.2017.
PW4 ASI Dinesh Tyagi from PS Pandav Nagar. He proved DD no. 19A (Ex. PW4/1) recorded at PS Pandav Nagar qua missing of Rakesh Jain, hue and cry notice (Ex. PW4/3) issued by PS Pandav Nagar. He also deposed that untraceable report (Ex.PW1/7) was in his handwriting. He also deposed about the various efforts undertaken by PS Pandav Nagar to trace out Sh. Rakesh Jain.
PW5 Rakesh Kumar, MLO, Transport Department, Mayur Vihar, Delhi. He deposed about absence of Rakesh Jain from office since 21.01.2009 (afternoon).
PW6 Pradeep Bhaskar, Accounts Officer, Transport Department, Delhi. He deposed that name of Rakesh Jain was struck off from payroll of the department with effect from 22.01.2009.
8. In defendants' evidence, no witness was examined.
9. 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 1 and Deokali Kuer v. Kedar Nath2 learned Trial Court took the view that a declaratory suit can be maintained only within the scope and ambit of section 34 of Specific Digitally signed by MURARI MURARI PRASAD SINGH Location: Court PRASAD No.7, Karkardooma SINGH Courts, Delhi 1 2002 SCC OnLine Cal 902 Date: 2021.07.28 13:13:51 +0530 2 1912 SCC OnLine Cal 162 : (1912) ILR 39 Cal 704 RCA 32/2020 Vinita Jain & Anr. v. MCD (East) & Ors. Page 5 of 14 Relief Act. On the basis of Narayan Nayak (supra) and Zena Gladys Freemantle v. Herbert Charles Freemantle3 learned Trial Court was also of the view 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. Learned Trial Court observed that suit is not covered within the ambit of section 34 of Specific Relief Act as plaintiffs do not seek declaration of their own legal character or right, but declaration of status of some other person.
10. Arguments heard. Record perused.
11. 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 Reddy4 observed, "In our opinion Section 42 of the Specific Relief Act5 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 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 Deo6, wherein it was observed, "The result is that Section 42 merely MURARI 3 1949 SCC OnLine Bom 49 : (1950) 52 Bom LR 641 PRASAD SINGH 4 AIR 1967 SC 436 Digitally signed by MURARI PRASAD SINGH Location: Court No.7, Karkardooma Courts, Delhi Date: 2021.07.28 5 Section 34 of Specific Relief Act, 1963 is reproduction of section 42 of earlier Specific Relief Act, 1877.
13:14:02 +0530 6 AIR 1975 SC 1810 : (1975) 2 SCC 530 RCA 32/2020 Vinita Jain & Anr. v. MCD (East) & Ors. Page 6 of 14 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 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.
12. Next, the view that plaintiffs did not seek declaration of their own legal Digitally signed by MURARI PRASAD SINGH MURARI Location: Court No.7, PRASAD Karkardooma SINGH Courts, Delhi Date:
2021.07.28 13:14:11 +0530 RCA 32/2020 Vinita Jain & Anr. v. MCD (East) & Ors. Page 7 of 14 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 Shri Rakesh Jain, 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 declaration that Shri Rakesh Jain is missing and unheard of for more than seven years is prayed for, his wife (plaintiff no.1) is in effect seeking a declaration of her own status of 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 plaintiffs did not seek any declaration of their own status, character or right.
13. 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 & Others7 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 8, 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 & Others9 involved a civil suit for declaration of civil death of husband of the 7 MANU/MH/0334/2016 8 Reference here is to LIC of India v. Anuradha Sharma, AIR 2004 SC 2070.
9 MANU/UP/0209/2020 Digitally signed by MURARI MURARI PRASAD SINGH Location: Court PRASAD No.7, Karkardooma SINGH Courts, Delhi Date: 2021.07.28 13:14:20 +0530 RCA 32/2020 Vinita Jain & Anr. v. MCD (East) & Ors. Page 8 of 14
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 & Others 10 was a case for grant of succession certificate under section 372 of Indian Succession Act in respect of securities and properties of one Shrikant 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. State11 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 10 2016 SCC OnLine Bom 1898 11 2014 SCC OnLine Del 65 Digitally signed by MURARI PRASAD SINGH MURARI Location: Court No.7, PRASAD Karkardooma SINGH Courts, Delhi Date:
2021.07.28 13:14:28 +0530 RCA 32/2020 Vinita Jain & Anr. v. MCD (East) & Ors. Page 9 of 14 has the power to grant the declaratory relief of civil death of a person who goes missing for more than seven years.
14. 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 of mandatory injunction to concerned authorities to issue death certificate.
That apart, as already observed hereinabove, declaration is sought of legal character that plaintiff no.1 Vinita Jain is a widow.
15. Therefore, the basis on which learned Trial Court held the suit to be not maintainable, cannot be sustained for the aforesaid multiple reasons.
16. We now come to the assertion of EDMC as taken in its written statement that sections 477/478 of DMC Act bars the suit. I do not think that this objection is tenable. The basic object of sections 477/478 of DMC Act 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 Others12, 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 12 2011 SCC OnLine Del 4289 Digitally signed by MURARI PRASAD SINGH MURARI Location: Court No.7, PRASAD Karkardooma SINGH Courts, Delhi Date:
2021.07.28 13:14:36 +0530 RCA 32/2020 Vinita Jain & Anr. v. MCD (East) & Ors. Page 10 of 14 Kumari v. MCD13 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 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 India14, 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 13 AIR 2004 Del 225 14 MANU/SC/ 0406/1968: [1969] 1 SCR 450 Digitally signed by MURARI PRASAD SINGH MURARI Location: Court No.7, PRASAD Karkardooma SINGH Courts, Delhi Date:
2021.07.28 13:14:45 +0530 RCA 32/2020 Vinita Jain & Anr. v. MCD (East) & Ors. Page 11 of 14 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 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 53 B 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.
17. This court thus holds that the present suit is maintainable. The decision Digitally signed by MURARI PRASAD SINGH MURARI Location: Court PRASAD No.7, Karkardooma SINGH Courts, Delhi Date:
2021.07.28 13:14:57 +0530 RCA 32/2020 Vinita Jain & Anr. v. MCD (East) & Ors. Page 12 of 14 of learned Trial Court holding that the suit is not maintainable is reversed.
18. Now to the evidence on the trial court record. The two plaintiff, PW1 and PW2 respectively, deposed entirely along the same lines as averred in the plaint. They testified, inter alia, that on 21.01.2009 Sh. Rakesh Jain did not return from office; that extensive search was made for him, but to no avail; that local police was contacted; that missing report was lodged in local police station; that hue and cry notice was also published. PW4 ASI Dinesh Tyagi from PS Pandav Nagar exhibited on record the missing person report of Shri Rakesh Jain vide DD no. 19A (Ex. PW4/1). It has also come in the evidence of PW5 and PW6 that salary of Rakesh Jain was stopped with effect from 22.01.2009 and that he had last attended office on 21.01.2009. The evidence of the plaintiffs and their witnesses inspire confidence. I see no reason to doubt their depositions. From the evidence of plaintiffs and their witnesses it is proved that Sh. Rakesh Jain has been missing since 21.01.2009. It is also proved that sincere efforts had been made to search him. Evidence on record shows that plaintiffs had made all possible efforts to trace him out. Suit before the Trial Court was filed more than seven years later on 03.06.2016. Thus, in terms of the provisions of sections 107 and 108 of Evidence Act there is a presumption about the civil death of Sh. Rakesh Jain. There is no evidence of the defendants to counter plaintiff's evidence.
19. In view of the above, this appeal is accepted. Impugned decree dt. 09.09.2020 of learned Trial Court stands reversed. Suit of the appellants plaintiffs is decreed in the following terms: (a) A decree of declaration that Digitally signed by MURARI MURARI PRASAD SINGH Location: Court PRASAD No.7, Karkardooma SINGH Courts, Delhi Date: 2021.07.28 13:15:06 +0530 RCA 32/2020 Vinita Jain & Anr. v. MCD (East) & Ors. Page 13 of 14 Sh. Rakesh Jain, son of Sh. Rai Chand Jain died a civil death is hereby passed. The concerned department/EDMC shall issue a Death Certificate qua death of Sh. Rakesh Jain, son of Sh. Rai Chand Jain. His date of death shall be taken to be the date of this judgment, that is, 28.07.2021, and (b) Parties shall bear their own costs.
20. Decree sheet be drawn up.
21. Trial Court record be sent back with a copy of this judgment. Appeal file be consigned to record room.
Digitally signed by MURARI PRASAD SINGHMURARI Location: Court PRASAD Announced through video conference No.7, Karkardooma SINGH Courts, Delhi Date:
on 28th July, 2021 2021.07.28
13:15:14 +0530
(M. P. Singh)
Presently ASJ (Electricity),
South West, Dwarka Courts
Delhi
Earlier ADJ03, East District,
Karkardooma Courts
Delhi/28.07.2021
RCA 32/2020 Vinita Jain & Anr. v. MCD (East) & Ors. Page 14 of 14