Delhi District Court
Saroj Bala vs The State (Govt. Of Nct Of Delhi) on 23 April, 2025
IN THE COURT OF MS. NEHA PANDEY, JSCC/ASCJ/GJ
(WEST),
TIS HAZARI COURTS, DELHI.
Suit No. 1053/2023
CNR No. DLWT03-002094-2023
Smt. Saroj Bala
w/o Late Shri Om Veer @ Ombir
R/o D-283, Resettlement scheme,
JJ Colony, Khyala, West Delhi,
New Delhi-110018. ......Plaintiff
Versus
1. The State(Govt. of NCT of Delhi)
Through Director of presecution
District West.
2. Municipal corporation of Delhi
Through its Commissioner,
Civic Center, Minto road,
PS Mianwali Nagar
New Delhi-110002.
3. SHO
P.S Khyala
New Delhi. ......Defendants
Date of Institution : 09.08.2023
Date of final arguments : 28.03.2025
Date of decision : 23.04.2025
JUDGMENT
1. The plaintiff has filed the present suit against the defendants for declaration seeking declaration of the civil death Suit No.1053/2023 Saroj Bala vs State NCT of Delhi & Ors 1 / 21 of Shri Omveer @ Ombir S/o Shri Fullo @ Fullo Chaudhary (husband of plaintiff).
PLAINT
2. It has been averred by the plaintiff is the legally wedded wife of Om Veer @ Ombir S/o Sh.Fullo @ Fullo Chaudhary R/o D-283, J.J. Colony, Khyala, New Delhi-110018, who was working as Safai Karamchari in M.C.D. and lastly he was posted at Ward No.90, Moti Nagar, Delhi vide his employee I.D. No.51600855. That the husband of the plaintiff namely Om Veer @ Ombir had left the house on 20.11.2015 at about 7.00 A.M. and thereafter he did not return back home. That the plaintiff and other relatives searched a lot at their level best efforts for Om Veer@ Ombir and inspite of the search and efforts made by the plaintiff herself along with other relatives were unable to trace him, the plaintiff and other family members and relatives presumed that Om Veer @ Ombir came back at his house on his own but he did not come back for a long time then the son of the plaintiff namely Amit has lodged a missing report on 27.11.2015 vide D.D. No.38A with police Station Khyala, Delhi. Thereafter, plaintiff and other relatives as well as police tried their best to trace out Om Veer @ Ombir. The police also verified from all the police stations as well as in the mortuary, where unclaimed dead bodies were receiving during that period as per the knowledge of the plaintiff. Thereafter Public notice in regard of missing of Om Veer @ Ombir were also published on 08.12.2015 in daily Hindi newspaper 'Punjab Kesri' besides trying to trace him out through other modes. But all the efforts gone in vain and he could not be traced out. That the plaintiff Suit No.1053/2023 Saroj Bala vs State NCT of Delhi & Ors 2 / 21 also traced him in all the family relations and at the residence of friends as well but the plaintiffs could not trace him out. From 20.11.2015 till date more than 7 years have been passed, but said Om Veer @ Ombir has not been heard of, during this period, by those who would naturally have heard of him, if he had been alive. Neither the plaintiff nor his children nor any of the relations/relatives nor any of the family friends have heard of him during this long period of time, nor his whereabouts could be traced. finding no other way plaintiff moved an application on 03.04.2023 to the S.H.O., P.S. Khyala, Delhi for obtaining the untraced report of her husband. Thereafter a local enquiry was conducted by the police officials from the neighbourhood of the plaintiff and statement of two independent witnesses namely (1) Prem Singh S/o Late Saba Chand and (2) Santosh W/o Late Kanwar Singh were recorded and thereafter HC.Mukesh Kumar No.2176/W, P.S. Khyala filed the report dated 24.5.2023 in which it has been confirmed that Om Veer @ Ombir is still not traceable. The plaintiff has approached the concerned S.D.M. for the issuance of the death certificate of the said Om Veer@Ombir as he has powers for the same but the S.D.M. is not willing to do so hence the plaintiff is left with no other option except to file the present suit before this Hon'ble Court.
4. Summons of the present suit were issued to the defendants. Defendant no.1 was served on 22.08.2023 and defendant no.3 was served on 19.08.2023. Till date, defendant no.1 and 3 have neither appeared before the court nor filed thier WS. Defendant no.1 and 3 are proceeded as exparte vide order dated 02.03.2024. The defendant no.2/MCD put his appearance on 26.10.2023.
Suit No.1053/2023 Saroj Bala vs State NCT of Delhi & Ors 3 / 21 WRITTEN STATEMENT OF DEFENDANT NO.2/MCD
5. Defendant no.2/MCD has filed its written statement and has taken various preliminary objections like that suit is not maintainable for want of service of the statutory notice U/s 477/478 of DMC Act, that the issuance of death certificate does not come within the purview of defendant no.1/MCD and the defendant cannot issue the death certificate unless the plaintiff provides the orders from the Court regarding declaration of the death, where the person is missing for more than 7 years. Hence the present suit is devoid of any cause of action and liable to be dismissed.
6. In the instant case, defendant no.1 had neither appeared nor filed the written statement.
7. On the pleadings of the parties, following issue was framed for trial on 02.03.2024:-
i) Whether the plaintiff is entitled to a decree of declaration for declaring that Sh. Omveer @ Ombir who is the husband of the plaintiff be declared dead as he has not been heard for more than 7 years, as prayed for? OPP
ii) Whether the plaintiff is entitled to the decree of mandatory injunction for the issuance of death certificate of Sh. Omveer @ Ombir by the Registrar of Birth and Death?OPP
iii) Whether the present suit is barred by provisions of Section 477 and 478 DMC Act? OPD2
iv) Relief.
Suit No.1053/2023 Saroj Bala vs State NCT of Delhi & Ors 4 / 21
8. In plaintiff evidence, the plaintiff examined herself as PW-1 who tendered her affidavit in evidence Ex. PW1/A. PW-1 relied on the following documents:-
1).Copy of Aadhar Card- Ex. PW1/1 (OSR)
ii) Ex. PW1/2 i.e. Copy of Aadhar Card of Sh. Om Veer @ Ombir is de-exhibted and same is Mark A
(iii) Newspaper Cutting -Ex. PW1/3 (OSR)
(iv) Application for obtaining untrace report- Ex. PW1/4 (OSR)
(v) Untrace report dated 24.05.2023- Ex. PW1/5 (OSR) Plaintiff was cross examined by defendant no.2. and during her cross examination she she admit that she has not furnished ID card and the pay slip of the department in the suit.
Another witness HC Mahesh is examined as PW-2 who brought the summoned record of PS Khyala in respect of missing of Omveer @ Ombir, and also bring record of DD no.38A dated 27.11.2015, the same is Ex PW2/A (OSR). Publication in the newspaper also done from PS Khyala, original Newspaper is Ex.PW2/B and regarding the untrace report in respect of missing person vide DD no. 38A dated 27.11.2015 PS Khyala signed by HC Mukesh Kumar which is Ex.PW 2/C. He stated that as per record the missing person has not been traced till today as per the record of PS Khyala. Witness was not cross examined by the defendant no.2.
Another Witness Shri Sudhir Bhardwaj,LDC of Suit No.1053/2023 Saroj Bala vs State NCT of Delhi & Ors 5 / 21 MCD, Karol bagh zone was examined as PW-3 who brought the summon record from the office of MCD ward no.90, Moti Nagar, Delhi with regard to service record of Omveer @ Ombir S/o Sh Fhulu R/o H no.D-283, JJ Colony, Khyala, New Delhi. He stated that Omveer @ Ombir is an employee in MCD as safai karamchari vide service book of the said employee is Ex.PW3/1 (OSR) and have brought the missing report of the said employee duly stamped by PS Khyala vide DD no.38-A dated 27.11.2015, photocopy is mark A, intimation letter dated 10.09.2018 sent by the department bearing signatures of Sanitary Superintendent dated 10.09.2018 at the house of the missing person is also Ex PW3/2 (OSR) alongwith photo of missing person/employee same is Mark B. As per the record the said person/employee was missing from the duty since 16.11.2015 the same is endorsed in the service book of the employee, the same is Ex.PW3/3 (OSR) which bearing the signatures of authrorized persons. As per the record of MCD the said person/employee is missing till today as per record despite the several letters/intimations has been sent by the department at the house of the employee. All the records brought by me has been shown in the court today and return the same.
PW-3 was also not cross examined by defendant no. 2/MCD.
9. No other witness was examined and PE was closed on 28.03.2025. Matter was fixed for final arguments.
10. I have heard ld. Counsel for the plaintiff and have carefully Suit No.1053/2023 Saroj Bala vs State NCT of Delhi & Ors 6 / 21 gone through the record.
11. My issues wise findings are as follows:
Issue No. iii) Whether the present suit is barred by provisions of Section 477 and 478 DMC Act? OPD2.
The onus to prove the same is upon defendant no.2/MCD. The objection as taken in written statement by defendant No.2/MCD that the present suit is barred under sections 477/478 of DMC Act for want of statutory notice. The objection is not legally 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 Others, 2011 SCC OnLine Del 4289, wherein it was observed:
" In any case, this issue is no longer res integra in as much as, it has been held by a Division Bench judgment of this court in the case of Yashoda 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 Suit No.1053/2023 Saroj Bala vs State NCT of Delhi & Ors 7 / 21 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 India, 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 Suit No.1053/2023 Saroj Bala vs State NCT of Delhi & Ors 8 / 21 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 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 Suit No.1053/2023 Saroj Bala vs State NCT of Delhi & Ors 9 / 21 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 non-
service 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. Suit No.1053/2023 Saroj Bala vs State NCT of Delhi & Ors 10 / 21 316 shall be revived and disposed of under law on merit.
Therefore, once defendant no.2/MCD has contested the present suit, it cannot be dismissed by recourse to section 477 and 478 of DMC Act. The present suit is held to be maintainable and said issues is decided in favour of plaintiff and against defendant no.2/MCD.
12. Issue no. i) Whether the plaintiff is entitled to a decree of declaration for declaring that Sh. Omveer @ Ombir who is the husband of the plaintiff be declared dead as he has not been heard for more than 7 years, as prayed for? OPP Issue no.ii) Whether the plaintiff is entitled to the decree of mandatory injunction for the issuance of death certificate of Sh. Omveer @ Ombir by the Registrar of Birth and Death?OPP.
The onus to prove these issues was upon the plaintiff. The jurisdiction of a civil court to grant declaratory relief flows from section 34 of Specific Relief Act, 1963. Section 34 of Specific Relief Act, 1963 reads as under:
" 34. Discretion of court as to declaration of status or right.- Any person entitled to any legal character, or to any right as to any property, may institute a suit against any person denying, or interested to deny, his title to such character or right, and the court may in its discretion make therein a declaration that he is so entitled, and the plaintiff need not in such suit ask for any further relief:
Provided that no court shall make any such declaration where the plaintiff, being able to seek further relief than a mere declaration of title, omits to do so.
Suit No.1053/2023 Saroj Bala vs State NCT of Delhi & Ors 11 / 21 Explanation.--A trustee of property is a "person interested to deny" a title adverse to the title of some one who is not in existence, and whom, if in existence, he would be a trustee."
Strictly speaking, the relief as to declaration of civil death does not fall withing the purview of section 34 of Specific Relief Act, 1963, since generally neither it relates to the legal character or right as to property of the person seeking such declaration nor can the civic authorities be said to be interested to deny such character or right. Moreover, such declaration is generally sought without seeking any further relief. However, it is no more res integra that section 34 of Specific Relief Act, 1963 is not exhaustive of all kinds of declaratory reliefs and that a declaratory suit can still be maintained which may not fall within its purview. In Vemareddi Ramaraghava Reddy v. Konduru Seshu Reddy, AIR 1967 SC 436, It was observed by Hon'ble Supreme Court:
"The legal position is also well-established that the worshipper of a Hindu temple is entitled, in certain circumstances, to bring a suit for declaration that the alienation of the temple properties by the de jure Shebait is invalid and not binding upon the temple. if a Shebait has improperly alienated trust property a suit can be brought by any person interested for a declaration that such alienation is not binding upon the deity but no decree for recovery of possession can be made in such a suit unless the plaintiff in the suit has the present right to the possession. Worshippers of temples are in the position of cestuui que trustent or beneficiaries in a spiritual sense (See Vidhyapurna Thirthaswami v. Vidhyanidhi Thirthanswami). Since the worshippers do. not exercise the deity's power of suing to protect its own interests, they are not entitled to recover possession of the property improperly alienated by Suit No.1053/2023 Saroj Bala vs State NCT of Delhi & Ors 12 / 21 the Shebait, but they can be granted a declaratory decree that the alienation is not binding on the deity (See for example, Kalyana Venkataramana Ayyangar v. Kasturiranga Ayyangar(4) and Chidambaranatha Thambiran v. Nallasiva Mudaliar). It has also been decided by the Judicial Committee in Abdur Rahim v. Mahomed Barkat Ali that a suit for a declaration that property belongs to a wakf can be maintained by Mahomedans interested in the wakf without the sanction of the Advocate-General, and a declaration can be given in such a suit that the plaintiff is not bound by the compromise decree relating to wakf properties. In our opinion, s. 42 of the Specific Relief Act 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. It follows, therefore, in the present case that the suit of the plaintiff for a declaration that the compromise decree is not binding on the deity is maintainable as falling outside the purview of s. 42 of the Specific Relief Act."
It was further observed by Hon'ble Supreme Court 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 CPC. This was reiterated in General Films Exchange Ltd. v. H.H. Maharaja Sir Brijnath Singhji Deo, AIR 1975 SC 1810, wherein it was observed by Hon'ble Apex Court:
" In Sheoparsan Singh & Ors. case (supra), what was really held by the Privy Council was that a grant of probate under the Probate and Administration Act (V of 1881), which operated as a judgment in rem, could not be collaterally assailed by a suit for a declaration brought by reversioners seeking to question the will. Sir Lawrence Jenkins who had, incidentally, decided Deokali Koer's case (supra) too said (at p.
97):
Suit No.1053/2023 Saroj Bala vs State NCT of Delhi & Ors 13 / 21 It is not suggested that in this litigation the testamentary jurisdiction is, or can be, invoked, and yet there can be no doubt that this suit is an attempt to evade or annul the adjudication in the testamentary suit, and nothing more."
We think that the decision in this case also does not assist the appellant much.
In Bai Shri Vaktuba's case (supra), the Bombay High Court held that a Talukdar plaintiff could bring a suit for a declaration and an injunction to restrain the defendant from claiming that he was the plaintiff's son. Learned Counsel for the appellant, however, relied upon the following passage from it (at p. 650):
"It has long been established that the general power vested in the Courts in India under the Civil Procedure Code to entertain all suits of a civil nature excepting suits of which cognizance is barred by any enactment for the time being in force, does not carry with it the general power of making declarations except in so far as such power is expressly conferred by statute."
Kishori Lal's case (supra) was cited to show that declaratory decrees falling outside S ection 42 of the Specific Relief Act are not permissible because Section 42 Specific Relief Act is exhaustive on this subject. This view must be held to have been rejected by this Court when it declared in Veruareddi Rmaranghava Reddy & Ors. v. Konduru Seshu Reddy & ors (1) (at p. 277) Suit No.1053/2023 Saroj Bala vs State NCT of Delhi & Ors 14 / 21 In our opinion, S. 42 of the Specific Relief Act 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 It follows, therefore, in the present case that the suit of the plaintiff for a declaration that the compromise decree is not binding on the deity is maintainable as falling outside the purview of S.. 42 of the Specific Relief Act".
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."
Therefore, section 34 of Specific Relief Act cannot be not held to be the sole repository 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, and such declarations can be granted even though no consequential relief is capable of being granted.
Further, there are judicial precedents to hold that a suit for declaration of civil death of a person unheard of for more than seven years is maintainable. In Swati & Others V.s Abhay & Others, MANU/MH/0334/2016, Hon'ble Bombay High Court has held such a suit to be maintainable. The relevant observation are as under:
" 7. In the light of the dictum laid down by the Apex Court as above, I am of the firm opinion that the Civil Court acting under Section 9, has inherent powers in its Suit No.1053/2023 Saroj Bala vs State NCT of Delhi & Ors 15 / 21 plenary jurisdiction de hors with reference to Section 34 of the 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."
In Alka Sharma v. Union of India & Others MANU/UP/0209/2020, the plaintiff had filed a suit for declaration of civil death of his mother. The Trial Court as well as the first appellate Court had dismissed the suit. Hon'ble Allahabad High Court, while passing decree in second appeal, held as under :
"16 In the light of the aforesaid decision of the Hon'ble Supreme Court, there is no hesitation in my mind to hold that the courts below have failed to act judiciously and in accordance with the provisions of law and have unnecessarily entered into those grey areas which are not subject matter of any dispute and in regard to which no dispute was raised depicting limited extent of their judicial knowledge and capability to appreciate and deal with the facts of the case. Since, Union of India was a party, it was represented through out, and it was not the case of the Union that any objection was filed by any of the relatives of Sri Govind Prasad Sharma so to the claim put-forth by the applicant or to the effect that she was not entitled to the residence allotted to Sri Govind Prasad Sharma in her official capacity, there was sufficient plethora of evidence to the effect that the presumption should have been drawn as to the civil death of Sri Govind Prasad Sharma as twin requirements of law as laid down in Sections 107 and 108 of the Evidence Act about declaration of a civil death were fulfilled. There is no requirement of final report from the police to draw a presumption under Sections 107 and 108 of the Evidence Act. As far as final report is concerned, Section 173 of the Code of Criminal Procedure deals Suit No.1053/2023 Saroj Bala vs State NCT of Delhi & Ors 16 / 21 with report of police officer on completion of investigation. Section 173(2) does not prescribed any time limit for completion of investigation and further Section 173(8) only provides for further investigation in respect of an offence after a report under sub-section (2) has been forwarded to the Magistrate. Further, the law prescribes that in case the Magistrate is inclined to accept the final report and decides to drop the charges against the accused, then only notice to the complainant is necessary. In case, cognizance is taken by the Magistrate on a report submitted by the police under Section 173 (2) of Cr.P.C., then no notice is required to be served on the complainant. In case of Pramod Behl vs. State of Jharkhand, 2004 Crl. L. J NOC 362 (Jhar), though it has been held that where the police after investigation files final report, copy of final report would be given to the informant and opportunity of hearing shall also be given to him.
17. In the light of the above discussion, the courts below committed serious error in law, which has resulted into miscarriage of justice to the appellant and which is corrected now.
18. In view of the aforesaid, the substantial question of law framed in this appeal is answered in negative and it is held that submission of the final report by the police is not mandatory inasmuch as police investigation is in the domain of criminal law and that is neither influenced by the plaintiff claiming such declaration nor is within the authority and control of the plaintiff seeking such declaration. Once the factum of lodging a report and not hearing about that person for seven years or more is proved and admitted by the defendant employer of the husband in regard to whom declaration is being sought, is sufficient to hold that requirement of Section 108 of the Evidence Act has been fulfilled. It has been arbitrarily held by the learned Civil Judge (Senior Division) that the plaintiff was oblige to seek any other declaration in regard to claim of service benefits in addition to the declaration of civil death.
Suit No.1053/2023 Saroj Bala vs State NCT of Delhi & Ors 17 / 21 In Vijaya Shrikant Revale v. Shirish Shrikant Revale & Ors., 2016 SCC OnLine Bom 1898, It was held by that a civil court has the power to grant declaratory relief of civil death. It was observed by Hon'ble Bombay High Court as under :
"10. It is true that only Civil Court has power to give suresh 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."
Lastly, Hon'ble Supreme Court in LIC of India Vs. Anuradha, AIR 2004 SC 2070, held as under:
" On the basis of the above said authorities, we unhesitatingly arrive at a conclusion which were 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 Suit No.1053/2023 Saroj Bala vs State NCT of Delhi & Ors 18 / 21 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 on the sa.18.16 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 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 does not arise".
13. The grant of decree of declaration of civil death of a person is founded on the presumption envisaged in Section Suit No.1053/2023 Saroj Bala vs State NCT of Delhi & Ors 19 / 21 108 of the Indian Evidence Act, 1972. 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 who affirms it. 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. In Narbada v. Ram Dayal, AIR 1968 Raj. 48, it was held that under Section 108 of the Indian Evidence Act, presumption about the death of a person is to be drawn when the dispute is brought to the Court and death can be presumed on the date on which the suit was filed and it cannot be given a further retrospective effect.
There is nothing on record to discredit the testimony of PW-1 and other summoned witnesses i.e PW-2 and PW-3 The plaintiff has proved his documents and same not been disputed by MCD. In natural course of events, it can be reasonably expected that a wife of a person would hear from her husband. In these circumstances, a presumption as to civil death of Om Veer @ Ombir S/o Sh.Fullo @ Fullo Chaudhary can be raised. Defendant no.2/MCD not been able to rebut presumption.
14. Accordingly, plaintiff has been successful in proving the above issues is her favour and she is held entitled to a declaration that Om Veer @ Ombir S/o Sh.Fullo @ Fullo Chaudhary be declared as presumed dead. The declaration of civil death of Om Veer @ Ombir S/o Sh.Fullo @ Fullo Chaudhary shall be Suit No.1053/2023 Saroj Bala vs State NCT of Delhi & Ors 20 / 21 effective from the date of filing of the suit in the light of judgment of Narbada v. Ram Dayal (supra).
15. As far as the prayer for issuance of death certificate is concerned, nothing has been brought on record by defendant No.2/MCD that death certificate cannot be granted without specific date of death being mentioned in such cases where a declaration of civil death has been sought from the court. Thus, said issue No.(iii) is also decided in favour of the plaintiff and against the defendants.
Relief
16. In view of my aforesaid findings, the suit of the plaintiffs is decreed and Om Veer @ Ombir S/o Sh.Fullo @ Fullo Chaudhary is declared as dead from the date of filing of the present suit i.e. 09.08.2023. Defendant no.2/MCD shall issue death certificate in respect of Om Veer @ Ombir S/o Sh.Fullo @ Fullo Chaudhary and his date of death shall be taken to be the date of filing of the present suit i.e. 09.08.2023.
17. Decree sheet be prepared accordingly.
18. File be consigned to Record Room.
Announced in the open court (Neha Pandey) on 23rd April 2025 JSCC/ASCJ/Guardian Judge West, Tis Hazari, Delhi Digitally signed by NEHA NEHA PANDEY PANDEY Date:
2025.04.23 16:56:02 +0530 Suit No.1053/2023 Saroj Bala vs State NCT of Delhi & Ors 21 / 21