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Delhi District Court

Smt. Manjit Kaur vs State Through Its Chief Secretary on 5 July, 2019

IN THE COURT OF SH. RAJINDER KUMAR, JSCC-CUM-
    ASCJ-CUM-GUARDIAN JUDGE (WEST): DELHI



Suit No. 957/18


1.      Smt. Manjit Kaur
        W/o Bhupinder Singh

2.      Shri Depal Singh
        S/o Bhupinder Singh

        Both R/o WZ-15/2, Navyug Block
        Vishnu Garden, New Delhi - 18.

3.      Smt. Harpreet Kaur
        W/o Shri Jaspal Singh
        D/o Shri Bhupinder Singh
        R/o House No. 1902,
        Gali Ahiran Malka Ganj, Delhi -07.

4.      Smt. Manpreet Kaur
        W/o Shri Nirmaljeet Singh
        D/o Shri Bhupinder Singh
        R/o WZ-79-A/2, Gali No. 1-A,
        Guru Nanak Nagar, Tilak Nagar,
        New Delhi - 110018.                     ...........Plaintiffs


                                  Versus


1.      State Through Its Chief Secretary
        Govt. of NCT of Delhi.


     Smt. Manjit Kauyr & Ors. Vs State & Ors.
     Suit No. 957/18                                  Page no.1/7
 2.      S. D. M Rampura,
        Old Middle School,
        Building, Rampura, Delhi.

3.      North Municipal Corporation of Delhi
        Through its Commissioner,
        Civic Centre, Minto Road,
        Delhi.

4.      S. H. O.
        Police Station Tilak Nagar,
        New Delhi.                                  ........Defendants


Date of filing of the suit                      :      02.08.2018
Date of reserving judgment                      :      05.07.2019
Date of pronouncement of judgment               :      05.07.2019


                            JUDGMENT

1. The plaintiffs have filed the present suit seeking declaration of the death of Sh. Bhupinder Singh.

2. Brief facts of the case as per the plaintiffs are that plaintiff no. 1 is the wife and remaining plaintiffs are children of Sh. Bhupinder Singh. That on 04..08.2009, Sh. Bhupinder Singh went to attend his work at DTC Central Workshop-I Kingsway Camp, Mukherjee Nagar, Delhi-09 but he did not come back. That the plaintiff no. 1 lodged a complaint on 24.08.2019 at PS Tilak Nagar, New Delhi, who was directed to lodge police complaint with PS Smt. Manjit Kauyr & Ors. Vs State & Ors.

Suit No. 957/18 Page no.2/7

Mukherjee Nagar. That accordingly, a complaint was made to PS Mukherjee Nagar on 04.12.2009 and DD No. 23-A dated 04.12.2009 was lodged. That thereafter, the plaintiffs have got published regarding the missing of Sh. Bhupinder Singh along with his photograph in the newspaper "Udaya Parkash" dated 21.03.2010 to 27.03.2010. That the police officials of PS Mukherjee Nagar have given untrace certificate dated 16.06.2017 in respect of missing of Sh. Bhupinder Singh. Therefore, it is required to be presumed that Sh. Bhupinder singh is not alive by virtue of lapse of more than 7 years under Section 108 of Evidence Act.

3. In the written statement filed on behalf of the defendant no. 3/N-DMC, objection is taken that the the suit is without cause of action and liable to be dismissed.

4. From the pleadings of the parties, following issues were settled on 08.01.2019 :-

1. Whether the suit is without cause of action and the same is liable to be rejected under Order 7 Rule 11 CPC? OPD-3

2. Whether the plaintiff is entitled to decree of declaration, as prayed for? OPP Smt. Manjit Kauyr & Ors. Vs State & Ors.

Suit No. 957/18 Page no.3/7

3. Whether the plaintiff is entitled to decree of mandatory injunction, as prayed for? OPP

4. Relief.

5. In their evidence, the plaintiffs got examined the plaintiff no. 1 as PW1 in support of the pleadings of their case. The plaintiff no. 1 (PW-1) relied upon the documents i.e. copy of police complaint (Ex. PW1/1), copy of newspaper (Ex. PW1/3), copy of identity card (Ex. PW1/4) and copy of untrace report (Ex. PW1/5). The plaintiffs also got examined Const. Pramod Kumar as PW-2. PE was closed on 28.05.2019.

6. I have heard Ld. Counsel for the plaintiffs as well gone through the record. Issue-wise findings are as under :

ISSUE NO : 1.

"Whether the suit is without cause of action and the same is liable to be rejected under Order 7 Rule 11 CPC? OPD-3"

7. The onus to prove the same was upon the defendant no. 3, who has pleaded that the suit was without any cause of action and liable to be rejected under Smt. Manjit Kauyr & Ors. Vs State & Ors.

Suit No. 957/18 Page no.4/7

Order 7 Rule 11 CPC. It is the plea of the plaintiffs that there is a sound cause of action against the defendants.

To decide the issue of cause of action, only the averments of the plaint are to be seen. On the basis of the contents of the plaint, the suit is found to be with a valid cause of action. Hence, the issue is decided against the defendant no. 3 and in favour of the plaintiffs.

ISSUE NO. 2 AND 3 :-

Whether the plaintiff is entitled to decree of declaration, as prayed for? OPP Whether the plaintiff is entitled to decree of mandatory injunction, as prayed for? OPP"

8. Onus to prove this issue was on the plaintiff. The plaintiffs in order to prove their case got the plaintiff no. 1 examined as PW1. The plaintiff has exhibited the copy of police complaint, copy of newspaper, copy of identity card and copy of untrace report in this case.

9. The plaintiffs also pray for a decree of mandatory injunction thereby directing the defendants to issue a death certificate of Sh. Bhupinder Singh on the basis that he has not been seen or heard of last more than 7 years. The plaintiff no. 1 has examined herself and Smt. Manjit Kauyr & Ors. Vs State & Ors.

Suit No. 957/18 Page no.5/7

proved the untrace report (Ex. PW1/5) as given to the concerned police station. The plaintiff no. 1 in her testimony deposes that since the filing of the report to the police, whereabouts of Sh. Bhupinder Singh have not been heard by her or other relatives.

As per Section 108 of indian Evidence Act ".....Under Section 108, presumption of death can be made only of it is proved at the time when the presumption in sought to be raised that the person concerned was not heard of to severn years by those would naturally have heard of him, if he had been alive...."

10. In the present case, the plaintiffs who are family members of Sh. Bhupinder Singh have not heard of him since 2009 as such the presumption under Section 108 of Indian Evidence Act applies to the facts of the present case. Moreover, the police has also been unable to trace Sh. Bhupinder Singh in so many years and has filed untrace report.

11. Keeping in view the presumption under Section 108 of the Evidence Act, 1872 the plaintiffs have been able to establish their case that Sh. Bhupinder Singh is not seen or heard and is missing since 1996. The plaintiffs have been able to discharge the onus cast upon them.

Smt. Manjit Kauyr & Ors. Vs State & Ors.

Suit No. 957/18 Page no.6/7

In view of discussion above, the Court is of the opinion that the plaintiffs have successfully established their case. Hence, the issues are therefore decided in favour of the plaintiffs and against the defendants.

RELIEF :

12. On the basis of my finding on the aforesaid issues, the suit of the plaintiffs is hereby decreed. Sh.

Bhupinder Singh is declared dead. Let certificate of death be issued by the concerned Authority on proper application, being submitted by the plaintiffs mentioning the date of death of Sh. Bhupinder singh as 04.08.2009.

Parties to bear their own costs.

Decree sheet be prepared accordingly.

Announced in the open Court today the 05th July, 2019 Digitally signed by RAJINDER RAJINDER KUMAR KUMAR Date:

2019.07.05 16:49:42 +0530 Smt. Manjit Kauyr & Ors. Vs State & Ors.

Suit No. 957/18 Page no.7/7