Himachal Pradesh High Court
Sh. Manohar Lal vs Smt. Kusum Lata Malhotra & Ors on 20 April, 2015
Author: Rajiv Sharma
Bench: Rajiv Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
CMPMO No. 125 of 2015.
Decided on: 20.4.2015.
Sh. Manohar Lal ......Petitioner.
.
Versus
Smt. Kusum Lata Malhotra & ors. .......Respondents.
Coram
The Hon'ble Mr. Justice Rajiv Sharma, Judge.
Whether approved for reporting? 1. Yes.
For the petitioner: Mr. R.K.Bawa, Sr. Advocate with Mr. Amit Kumar Dhumal,
Advocate.
For the respondents: Nemo.
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Justice Rajiv Sharma, J.
This petition is instituted against the order dated 21.5.2014, rendered by the learned District Judge (Forests), Shimla and also against the orders dated 16.1.2015 and 20.2.2015, passed by the learned Addl.
District Judge,-II, Shimla in Execution Petition No. 35-S/10 of 14/09.
2. Key facts, necessary for the adjudication of this petition are that respondent-decree holder instituted a civil suit No. 4-S/1 of 2008 for specific performance of the agreement against the proforma respondent/JD Sh. Devi Saran. The proforma respondent No. 2 was proceeded against ex-
parte by the learned trial Court. The suit was decreed by the learned Addl.
District Judge, (FTC), Shimla on 21.1.2009 and decree for specific performance of the agreement dated 3.9.2007 was passed in favour of the decree holder and against the judgment debtor. The judgment debtor was directed to execute the conveyance deed of the disputed land after the receipt of the balance sale price from the decree holder within 3 months from the passing of the judgment. The decree holder filed Execution Petition bearing No. 35-S/10 of 14/09 for the execution of the judgment 1 Whether reporters of the local papers may be allowed to see the judgment?
::: Downloaded on - 15/04/2017 18:01:42 :::HCHP 2and decree dated 21.1.2009. In the Execution Petition, the petitioner/objector filed the objections. According to him, his father was .
missing since November, 2007 and he was not traceable. The complaint was also lodged with the Police Station (West), Boileauganj. He came to know about the suit when the court had issued notice in the name of Sh.
Devi Saran for his appearance on 16.12.2010. According to him, no legal and valid service of Sh. Devi Saran was effected in the suit. The learned District Judge (Forests) Shimla, dismissed the objections on 21.5.2014.
Thereafter, the consequential orders dated 16.1.2015 and 20.2.2015 were passed by the learned Addl. District Judge-II, Shimla. Hence, this petition.
3. I have heard Mr. R.K.Bawa, Sr. Advocate, for the petitioner and gone through the impugned orders dated 21.5.2014, 16.1.2015 and 20.2.2015, carefully.
4. The suit was instituted on 7.3.2008. The summons/notice was issued to the judgment debtor. The report of the Process Server is at page 69 of the paper book. According to his report, Sh. Devi Saran was not found at his residence but his two sons, namely, Sh. Gopal and Sh.
Manohar, who were adult were present and were residing in a joint family.
He requested them to accept the summons. However, they refused to accept the same. They told him that Devi Saran was missing for the last 2- 3 months. They did not have any telephone number of Devi Saran. It is in these circumstances, the judgment debtor was proceeded exparte and the decree was passed on 21.1.2009.
5. The Executing Court has passed various orders for effecting service on the judgment debtor in the Execution Petition. According to the ::: Downloaded on - 15/04/2017 18:01:42 :::HCHP 3 report submitted by the Process Server, he went on 4.11.2009 to the house of judgment debtor. He could not be traced. His daughter-in-law told him .
that the judgment debtor Devi Saran was her father-in-law. He has not visited the house for the last 2-3 years and he was residing at Delhi. She has refused to accept the service of summons and also the affixation of the summons. The Executing Court again issued summons for the service of judgment debtor. The Process Server met the daughter-in-law of judgment debtor on 20.11.2009. She told him that Devi Saran was not residing there. Sh. Devi Saran's son Gian Chand told him that his father was missing for the last several years and they have lodged complaint with the police at PS Boileauganj. She has refused to accept the service of the summons. The summons were again refused by the members of the family of the judgment debtor on 30.8.2010. Ms. Madhu Devi, daughter-in-law of the judgment debtor, again refused the service of summons on 5.10.2010 and told the Process Server that judgment debtor was missing and she could not accept the summons. Thereafter, the Process Server affixed the summons on the door in the presence of son of judgment debtor Sh. Amar Chand Thakur.
6. The decree holder has taken all steps for the service of judgment debtor and despite his best efforts, judgment debtor could not be served and it is in these circumstances summons were affixed on the door of his house. The affixation of summons on the house of the judgment debtor is in accordance with law. The members of the family of the judgment debtor have refused to accept the summons repeatedly, as discussed hereinabove, on the basis of the report furnished by the Process ::: Downloaded on - 15/04/2017 18:01:42 :::HCHP 4 Server. The only ground taken by the objector-petitioner in the objections preferred in the Execution Petition was that his father was missing since .
2007 and he would be presumed to be dead. However, there is no declaration to this effect, as rightly observed by the learned Executing Court in its order dated 10.6.2014.
7. Their lordships of the Hon'ble Supreme Court in the case of L.I.C. of India vrs. Anuradha, reported in AIR 2004 SC 2070, have held that the onus of proving that a person was alive/dead on particular date/time lies on the person who asserts it. It has been held as follows:
"14. On the basis of the abovesaid authorities, we unhesitatingly arrive at a conclusion which we sum up in the following words. The law as to presumption of death remains the same whether in Common Law of England or in the statutory provisions contained in Sections 107 and 108 of the Indian Evidence Act, 1872. In the scheme of Evidence Act, though Sections 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 who's 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 the facts and circumstances under which the person may have died. The presumption as to death by reference to Section 108 would arise only on lapse of seven years and would not by applying ::: Downloaded on - 15/04/2017 18:01:42 :::HCHP 5 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, Tribunal or before an authority who is called .
upon to decide as to whether a person is alive or dead. So long as the dispute is not raised before any forum and in any legal proceedings the occasion for raising the presumption does not arise.
15. If an issue may arise as to the date or time of death the same shall have to be determined on evidence-direct or circumstantial and not by assumption or presumption. The burden of proof would lay on the person who makes assertion of death having taken place at a given date or time in order to succeed in his claim. Rarely it may be permissible to proceed on premise that the death had occurred on any given date before which the period of seven years' absence was shown to have elapsed."
8. The Apex Court in the case of Oriental Insurance Company Limited vrs. Sorumai Gogoi and others, reported in (2008) 4 SCC 572, have held that Section 108 applies where death of a person is in issue. It does not apply to all situations. Their lordships have further held that Section 108 does not apply in respect of a person who absconds from justice or evades trial or is otherwise charged for commission of a grave offence. It has been held as under:
"17. The employer lodged a first information report against Bipul Gogoi. A charge sheet was also filed. There is nothing on record to show that the death had occurred to Bipul Gogoi in an accident arising out of or in course of employment. If some miscreants have taken away the driver along with the vehicle or has murdered him, it is an offence. It, except in certain situations, does not give rise to a presumption that the death had occurred arising out or in the course of an employment. Some evidence should have been adduced in that behalf. If the version brought on records by the police was correct, namely, he had himself ran away with the vehicle and had not been heard for a period of seven years, particularly, when he had been declared a proclaimed offender by a Court of law, presumption under Section 108 of the Evidence Act could have been invoked by the criminal court for dropping the criminal ::: Downloaded on - 15/04/2017 18:01:42 :::HCHP 6 case that he is dead. In our opinion, in a case of this nature, the said provisions could not have been invoked for the purpose of grant of compensation under the 1923 Act without any other evidence having been brought on records.
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18. Sections 108 and 109 of the Evidence Act are founded on the presumption that things once proved to have existed in a particular state are to be understood as continuing in that state until contrary is established by evidence either direct or circumstantial. The said provision can be invoked in a legal proceeding by the death of a person may be an issue. The Section does not say that presumption would be applicable in all situations. It shall not apply in respect of a person who absconds from justice nor evade a trial or is otherwise charged for commission of a grave offence as he in that situation may not communicate with his relations. Furthermore in a case of this nature, it is also difficult to rely upon a self serving statements made by the claimants that they had not heard of their son for a period of seven years. The Commissioner of Workmen Compensation or the High Court did not assign any reason as to why the fact disclosed in the charge sheet which was filed upon investigation that Bipul Gogoi himself had run away with the vehicle would not be a relevant fact, particularly, when cognizance had been taken by a competent court of law on the basis thereof."
9. In the instant case, the judgment debtor was evading the service of summons.
10. The Division Bench of Kerala High Court in the case of Eliamma Simon and another vrs. Seven Seas Transportation Ltd. and others, reported in AIR 2002 Kerala 219, has held that the date of death has to be proved in the same manner as any other fact is proved. Section 108 does not automatically give rise to presumption as to exact date of death of missing person. The Court cannot presume date of death of missing person as the date that immediately followed the lapse of seven years from date of his disappearance. It has been held as follows:
::: Downloaded on - 15/04/2017 18:01:42 :::HCHP 7"7. We are afraid, we cannot agree with the submission of the appellant's counsel. In our opinion, there is a fallacy in the argument advanced on the basis of Section 108 of the Evidence Act. The date of expiry of seven years mentioned in .
that Section cannot be understood as the date of death of the person who has not been heard of during the period of seven years. It is true that Section 108 enables the courts under the circumstances stated therein to draw the statutory presumption that a man is not alive unless the contrary is proved by the opposite party. But that does not mean that Section 108 can be called in aid to establish to exact date of death of the person. The date of death has to be proved in the same manner as any other fact is proved.
11. In the light of the aforesaid pronouncements on the scope of the presumption available under Section 108 of the Evidence Act, it is not necessary for us to labour much on that aspect of the matter. Suffice it to say that the contention of the appellant that proof regarding the existence of facts necessary to attract the presumption under Section 108 of the Evidence Act does not automatically give rise to a presumption as to the exact date of death of the missing man. We reject the contention that the court should presume the date of death of Simon Joseph as the date that immediately followed the lapse of seven years from the date of his disappearance."
11. In the instant case, it was incumbent upon the petitioner to establish by tangible evidence that the whereabouts of judgment debtor were not known and he was not heard for the last seven years, at the time of filing of the suit. Appropriate inquiry is also required to be held to prove that the person is not heard for the last seven years. It has come in the statement of daughter-in-law of the judgment debtor that infact, judgment debtor was living in Delhi for the last 2-3 years. This statement was made by the daughter-in-law of the judgment debtor in the year 2009. Merely filing the complaint before the Police Station, Boileauganj, would not establish that the judgment debtor is not alive.
12. There is no illegality or perversity in the order dated 21.5.2014, rendered by the learned District Judge (Forests), Shimla and orders dated ::: Downloaded on - 15/04/2017 18:01:42 :::HCHP 8 16.1.2015 and 20.2.2015, passed by the learned Addl. District Judge,-II, Shimla in Execution Petition No. 35-S/10 of 14/09.
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13. Accordingly, there is no merit in this petition. The same is dismissed, so also the pending application(s), if any.
April 20, 2015, ( Rajiv Sharma ),
(karan) Judge.
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