Delhi District Court
Nirmala Devi & Ors. vs . The Municipal Corporation Of Delhi & ... on 25 January, 2023
Nirmala Devi & Ors. Vs. The Municipal Corporation of Delhi & Ors.
In the Court of Sh. Anubhav Jain,
.
Additional Senior Civil Judge-Cum- Judge Small Cause Court/Guardian Judge, (East District), Karkardooma Courts, Delhi.
C.S. No. 739/19
1. Smt. Nirmala Devi W/o Late Sh. Laxhman Singh
2. Anita Dalal W/o Late Munesh Dalal
3. Master Divesh Kumar S/o Sh. Munesh Kumar (Through his natural guardian i.e. mother) All R/o S-685-A, School Block, Shakarpur, Delhi-110092. ...Plaintiffs.
VERSUS
1. The Municipal Corporation of Delhi Through its Commissioner, East Zone, Delhi-41.
2. The Life Corporation of India Through its Chief Manager Branch Unit No. 11B, Jeevan Pragati Building, First And Second Floor, Plot No. 6, District Centre, Laxmi Nagar, Delhi.
3. Government of NCT of Delhi Through its Secretary, Delhi Secretariate, Near ITO, Delhi. ..Defendants.
Date of Institution : 23/08/2019 Page 1 of 14 Nirmala Devi & Ors. Vs. The Municipal Corporation of Delhi & Ors.
Date of reserving of Judgment : 24/01/2023
Date of Judgment : 25/01/2023
Suit for Declaration and Mandatory Injunction
Judgment
1. Present suit has been filed by the plaintiff seeking declaration and mandatory injunction against the defendants.
Brief facts
2. In brief, facts of the case as stated by plaintiffs in their plaint are that plaintiff no. 1 is mother and plaintiff no.2 is wife of Sh. Munesh Dalal. Further, plaintiff no.3 is son of plaintiff no.2 and has filed the present suit through his mother i.e., plaintiff no.2 herein. It is further submitted that Sh. Munesh Kumar, i.e., son of plaintiff, was married to Smt. Anita Dalal and two children namely Devesh Kumar and Ms. Mansi were born out of the said wedlock, however, Ms. Mansi expired on 01.04.2013. It is further submitted that on 13.07.2008, Sh. Munesh Kumar left the house i.e., S-685A, School Block, Shakarpur, Delhi - 110092 to attend a wedding in Trilokpuri but never returned home. It is submitted that plaintiff and her family members searched for Sh. Munesh Kumar but his whereabouts were not known and after such search, daughter of plaintiff namely Smt. Lalita w/o Sanjeev Sikka, lodged missing complaint vide DD No. 4A dt. 17.07.2008 at PS Mayur Vihar. It is submitted that Sh. Munesh Kumar was neither found nor returned or contacted any family member till date and as such it has been more than eleven years since his disappearance.
It is submitted that Sh. Munesh Kumar took one LIC Policy bearing no. 121112902 dt. 08.01.1999 issued by Life Insurance Corporation of India which Page 2 of 14 Nirmala Devi & Ors. Vs. The Municipal Corporation of Delhi & Ors.
has now matured and as such legal heirs of Sh. Munesh Kumar are entitled to receive the funds lying in the aforesaid insurance policy. It is submitted that Sh. Munesh Kumar owned a piece of agricultural land in his native village in Asodha Sivan, Dist. Jhajjar, Bihar wherein the plaintiffs have shares and as such plaintiffs be declared legal heirs of missing Sh. Munesh Kumar in equal proportions.
It is submitted that plaintiff no.1 filed a civil suit bearing no. 6310/2016 for declaring death of Sh. Munesh Kumar and mandatory injunction against defendant no.2 therein for issuance of death certificate but the same was dismissed by Sh. Jay Thareja, Ld. ASCJ vide order dt. 28.02.2019 on technical grounds. It is submitted that plaintiff applied for Death Certificate of Sh. Munesh Kumar however, defendant no.2/MCD refused to issue the said death certificate.
By way of present suit, plaintiff prays for a decree of declaration that Sh. Munesh Kumar who has been missing since 13.07.2008 be declared as dead. Plaintiff further prays for decree of mandatory injunction directing defendant no.2 to pay LIC policy maturity amount to plaintiffs being legal heirs of the missing person, Sh. Munesh Kumar.
3. It is pertinent to mention herein that an application u/o VI Rule 17 CPC was moved by the plaintiff seeking to amend the plaint which was allowed by Ld. Predecessor Court vide order dt. 20.11.2019. Further, another application u/o VI Rule 17 CPC has been filed by the plaintiff seeking to amend the plaint to incorporate consequential relief of mandatory injunction directing defendant no.1/MCD to issue death certificate of missing Sh. Munesh Kumar. The said application, on absence of any objection from the Ld. ALO appearing on behalf Page 3 of 14 Nirmala Devi & Ors. Vs. The Municipal Corporation of Delhi & Ors.
of MCD, has been allowed vide order dt. 24.01.2023. As such, plaintiff by way of present suit has further sought relief of mandatory injunction that defendant no. 2 i.e., MCD may be directed to issue death certificate of Sh. Munesh Kumar to plaintiff.
4. In reply thereof, Written Statement was filed defendant no.1/MCD wherein besides denying the averments so raised by the plaintiff in the plaint, it was submitted that the present suit is hit by provisions of Section 11 CPC as the plaintiff has admittedly filed a suit on same cause of action which was dismissed by the concerned court, however the same was dismissed on consideration of facts and evidence not on technicality.
It is further submitted that answering defendant is under statutory obligation to register the Birth & Death of the citizens under various provisions of Birth & Death Registration Act. Further, it is submitted that it is mandatory that the death of a missing person could only be registered after obtaining the declaratory decree as deemed death is to be declared first as per the provisions of the Indian Evidence Act from a Court of law having competent jurisdiction.
Therefore, defendant no.1/MCD prayed for dismissal of the present suit of plaintiff.
5. Written statement was filed by defendant no.2 i.e., LIC wherein besides denying the averments so raised in the plaint, it was submitted that Sh. Munesh Kumar took LIC Policy bearing no. 121112902 dt. 08.01.1999 issued by Life Insurance Corporation of India and all the premiums have been paid fully under the said policy and value as on date is Rs. 1,35,900/-. It is further submitted that in case of claim settlement, on presumption of death where life assured is Page 4 of 14 Nirmala Devi & Ors. Vs. The Municipal Corporation of Delhi & Ors.
reported missing and not heard of for several years, a certified copy of the application made to court should be called for. It is submitted that the date of application filed in the court should be taken as date of death, unless court order specifically mentions an earlier date for the same. Further, it is submitted that regarding nomination and inheritance, there is no requirement of direction in the form of mandatory injunction.
Therefore, defendant no.2 prayed for dismissal of the present suit of plaintiff.
6. No replication has been filed by the plaintiff. On completion of pleadings, following issues were framed by this Court vide order dt. 30.07.2022:-
1. Whether the plaintiff is entitled to the relief of declaration as prayed for?
OPP.
2. Whether the plaintiff is entitled to the relief of mandatory injunction against defendant no.2 as prayed for? OPP.
3. Relief.
7. As discussed in foregoing paragraph, since application u/o VI Rule 17 CPC was allowed vide order dt. 24.01.2023, following additional issue is being framed by this Court in exercise of its power u/o XIV Rule 5 CPC:
4. Whether the plaintiff is entitled to relief of mandatory injunction against defendant no.1/MCD as prayed for? OPP.
8. During the course of evidence, plaintiff filed his affidavit in evidence Ex. PW-1 and relied upon documents:
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1. Ex. PW-1/1 to Ex.PW-1/3 (OSR) : Copy of Aadhar Card, Voter ID Card and Ration Card
2. Ex. PW-1/4 (OSR) : Copy of Matriculation Certificate of Sh. Munesh Kumar.
3. Ex. PW-1/5 (OSR) : Copy of Death Certificate of Ms. Mansi
4. Ex. PW-1/6 to Ex. PW-1/7(OSR) : Copy of DD and Police Ishtar
5. Ex. PW-1/8 (OSR) : Copy of Status Report
6. Ex. PW-1/9 (OSR) : Copy of insurance letter
7. Ex. PW-1/10 (OSR) : Copy of letter
8. Ex. PW-1/11 (OSR) : Copy of letter dt. 20/01/2019 and advise to continue the LIC Policy of Sh. Munesh Kumar
9. Ex. PW-1/12 & Ex. PW-1/13(OSR) : Copy of notice and postal receipts
9. Plaintiff no.2 has further filed her affidavit in evidence Ex. PW-2/A and relied upon the following documents.
1. Ex. PW-2/1 & Ex. PW-2/2(OSR) : Aadhar Card of deponent and plaintiff no.3
10. Evidence of plaintiff was closed vide order dated 18.01.2023 and statement of plaintiff in this regard was recorded separately. Defendant/MCD stated that he does not wish to lead defence evidence. Evidence of defendant Page 6 of 14 Nirmala Devi & Ors. Vs. The Municipal Corporation of Delhi & Ors.
was closed vide order dated 18.01.2023 and matter was listed for final arguments.
11. I have heard the arguments so led by Ld. Counsel for the parties and perused the case file carefully. My issue wise findings are as follows:
Issue No. 1 and 4Whether the plaintiff is entitled to the relief of declaration as prayed for?
Whether the plaintiff is entitled to relief of mandatory injunction against defendant no.1/MCD as prayed for?
12. As both the issues required common discussion of law and fact, both the issues are being dealt with together. Burden to prove both the issues lies upon the plaintiffs.
13. Before proceeding to decide the case of merits, it is pertinent herein to primarily deal with the contention raised by defendant no.1/MCD that the present suit is barred by provisions of Section 11 CPC comprising of the principle of res judicata as the plaintiff has brought forward civil suit bearing no. 6310/2016 before Sh. Jay Thareja, Ld. ASCJ, wherein vide judgment dt. 28.02.2019, said suit of the plaintiff was dismissed on consideration of facts and evidence.
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14. In light of the said contention, judgment dt. 28.02.2019 was perused. Such perusal reveals that in determining the issues of the civil suit bearing no. 6310/2016, no reference was given to evidence of PW-1 and PW-2 therein. Further, it was observed in the said judgment that the relief of mandatory injunction sought by the plaintiff was not granted because the plaintiff has filed the suit against the defendant/MCD without serving any notice upon MCD as per Section 478(1) DMC Act, 1957. Further observations in the said judgment are as follows:
"7. ... The relief of declaration sought by the plaintiff cannot be granted by this Court as the plaintiff has not sought any declaration to the effect that she is entitled to any legal character or property, on account of presumed death of Sh. Munesh Kumar, because the plaintiff has not made any natural or juristic person interested in denying the death of Sh. Munesh Kumar, a party to the this suit and because Section 108 of the Evidence Act, 1872 is only a rule of evidence that does not confer any right on a party to seek declaration of death of any person, who has remained missing/unheard of, for more than 7 years."
15. Perusal of the judgment reveals that in civil suit no. 6310/2016, suit of the plaintiff was dismissed on technical grounds. Further, as such, the matter was not dealt on merits at all and no reference to evidence led by the plaintiff was made. For the same, I may gainfully refer to the observations of Hon'ble Apex Court in the judgment of R.M. Sundaram @ Meenakshi Sundaram vs Sri Kayarohanasamy And Neelayadhakshi Amman Temple CA 3964-3965/2009, produced hereunder.
"31. General principle of res judicata under Section 11 of the Code contains rules of conclusiveness of judgment, but for res judicata to apply, the matter directly and substantially in issue in the subsequent suit must be the same matter which was directly and substantially in issue in the former suit. Further, the suit should have been decided on merits and the decision should have Page 8 of 14 Nirmala Devi & Ors. Vs. The Municipal Corporation of Delhi & Ors.
attained finality. Where the former suit is dismissed by the trial court for want of jurisdiction, or for default of the plaintiff's appearance, or on the ground of non- joinder or mis-joinder of parties or multifariousness, or on the ground that the suit was badly framed, or on the ground of a technical mistake, or for failure on the part of the plaintiff to produce probate or letter of administration or succession certificate when the same is required by law to entitle the plaintiff to a decree, or for failure to furnish security for costs, or on the ground of improper valuation, or for failure to pay additional court fee on a plaint which was undervalued, or for want of cause of action, or on the ground that it is premature and the dismissal is confirmed in appeal (if any), the decision, not being on the merits, would not be res judicata in a subsequent suit. The reason is that the first suit is not decided on merits."
16. In light of the law as discussed above, judgment dt. 28.02.2019 passed by Ld. ASCJ reveals that civil suit bearing no. 6310/2016 was dismissed on technical ground of non-service of statutory notice to defendant/MCD u/s 477/478 of DMC Act and has not been decided on merits of the case. As such, since first suit has not been decided on merits, present suit which is a subsequent suit in this case will not be barred by the provisions of Section 11 CPC for res judicata. Therefore, contention of defendant no.1/MCD rests inconsequential.
17. Moving on to the merits of the present case, it is the case of the plaintiff that plaintiffs are mother, wife and son of Sh. Munesh Kumar, who is missing since 13.07.2008 and despite all the efforts to trace Sh. Munesh Kumar, he could not be found.
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18. In order to prove his case, plaintiff no.1 i.e., mother of missing person and Smt. Anita Dalal i.e., wife of Sh. Munesh Kumar, examined themselves as witness before the Court. All the said witnesses in their affidavit in evidence have stated that Sh. Munesh Kumar is missing since 13.07.2008 and missing report with regard to the same was lodged at Police Station Mayur Vihar vide DD No. 4A dt. 17.07.2008, however, Sh. Munesh Kumar, is not heard of or seen since 13.07.2008. Plaintiff has further placed on record copy of complaint dt. 17.07.2008 vide DD No. 4A dt. 17.07.2008 at PS Mayur Vihar as Ex. PW-1/6. Plaintiff has further placed on record status report stating missing person being untraceable so filed by Ld. IO as Ex. PW-1/8.
19. Plaintiffs are mother and son, and are one of the living LR of the missing person namely Sh. Munesh Kumar. Further, wife of Sh. Munesh Kumar, also deposed before the court that they have not heard of Sh. Munesh Kumar since 13.07.2008. Accordingly, in such given situation, plaintiffs may seek invocation of Section 108 of Indian Evidence Act by the court to draw presumption of Civil Death of her son and father namely Sh. Munesh Kumar, since he has not been seen or heard for more than last 7 years by the person, who would naturally have heard of him, if he had been alive. Here, the question of actual death or its time or place are not matter of presumption under Section 108 of Indian Evidence Act. Hon'ble Supreme court of India in a case titled as "N. Jaya Laxmi Anmol Vs. R. Gapala Pather", AIR 1985 SC 995 observed as under: -
Section 108 of Indian Evidence Act reads as under: -
"Burden of proving that person is alive who has not been heard of for seven years. - Provided that when the question is whether a man is alive or dead, and it is proved that he has not been heard of for seven years by those who would naturally have heard of him if he had Page 10 of 14 Nirmala Devi & Ors. Vs. The Municipal Corporation of Delhi & Ors.
been alive, the burden of proving that he is alive is shifted to the person who affirms it."
4. ....... There is no presumption also to the cause and circumstances of the death. Section 107 deals with the presumption of continuation of life, whereas Section 108 deals with the presumption of death. Section 108 enacts a proviso to Section 107 by specifying that when a person was continuously absent for seven years and he was not heard by his friends and neighbours he may be presumed to have died and the burden of proving that he is alive shifts on the person that he is alive.........
7. Sarkar on Evidence, 14th Edn., at page 1438, has summarised the law after a detailed survey of the decisions of the various courts thus:
"If a person is not heard of for seven years there is a presumption of the fact of death at the expiration of seven years, but the exact time of death is not a matter of presumption but of evidence and the onus of proving that death took place at any particular time within the seven years lies upon the person who claims a right to the establishment of which that fact is essential. There is no presumption that death took place at the close of seven years."
Proof of life or death at a particular time: - He who asserts that a person was alive on a given date, or dead on that date, must prove the fact by evidence, since there is no presumption of continuance of life, and, generally, no presumption of death at a particular time. Where there is insufficient evidence in support of the fact alleged, the party bearing the burden of proof will fail. The question of whether a person was alive or dead at a given date will be decided on all the evidence available at the date of the hearing."
20. From the perusal of above said law, it is clear that Section 108 of Indian Evidence Act, empowers the court to presume death of a person, if he has not been heard of for 7 years by those, who would naturally have heard of him, if he had been alive and once said fact of person in question not being heard for last 7 years is proved the burden of proving that the said person in question is alive stood shifted to the person who affirms the same. Here, plaintiff and Page 11 of 14 Nirmala Devi & Ors. Vs. The Municipal Corporation of Delhi & Ors.
relatives of Sh. Munesh Kumar, who had naturally supposed to see and hear of missing Sh. Munesh Kumar, testified on Oath that Sh. Munesh Kumar had been missing since 13.07.2008 from H.No. S-685A, School Block, Shakarpur, Delhi
- 110092 and they have not seen and heard of him since then despite lodging complaint to police on 17.07.2008 and making searches for his whereabouts. In this situation, the fact of the missing person namely Sh. Munesh Kumar had not been heard by the people, who would naturally have heard of him, if he had been alive for more than last 7 years stands proved. Accordingly, the burden to prove as to said Sh. Munesh Kumar is still alive, lies on the defendant, who have not led any evidence in the present case.
21. In view of the observation made above, both the issues are decided in favour of the plaintiff and against the defendants. Since Sh. Munesh Kumar is not been seen or heard for more than 7 years by persons who would naturally have heard of him if he had been alive, Sh. Munesh Kumar S/o Sh. Laxman Singh is presumed to be dead with declaration as to his civil death U/s 108 of Indian Evidence Act. Further, defendant no.1/MCD is directed to issue the death certificate of Sh. Munesh Kumar to the plaintiffs herein. Issue no. 1 & 4 are disposed of accordingly.
Issue no. 2 Whether the plaintiff is entitled to the relief of mandatory injunction against defendant no.2 as prayed for? OPP.
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22. Burden to prove the present issue lies with the plaintiff. It is the case of the plaintiff that Sh. Munesh Kumar took one LIC Policy bearing no. 121112902 dt. 08.01.1999 issued by Life Insurance Corporation of India which has now matured and as legal heirs of Sh. Munesh Kumar, plaintiffs are entitled to receive the funds lying in the aforesaid insurance policy. As such, plaintiff prayed for decree of mandatory injunction directing defendant no.2 to pay LIC policy maturity amount to plaintiffs. Plaintiff has further relied on copy of letter dt. 20/01/2019 as Ex. PW-1/11 issued by defendant no.2/LIC advising the plaintiffs to continue the LIC Policy of Sh. Munesh Kumar.
23. It is pertinent to mention herein that defendant no.2 has not led any evidence as well as in their Written Statement admitted that Sh. Munesh Kumar took LIC Policy bearing no. 121112902 dt. 08.01.1999 issued by Life Insurance Corporation of India and all the premiums have been paid fully under the said policy and value as on date is Rs. 1,35,900/-. Further, it is stated that in case of claim settlement, on presumption of death where life assured is reported missing and not heard of for several years, a certified copy of the application made to court should be called for.
24. Since the plaintiffs herein has claimed themselves to be the legal heirs of Sh. Munesh Kumar who is also stated to be the holder of policy bearing no. 121112902 dt. 08.01.1999 issued by Life Insurance Corporation of India, defendant no.2 is directed to take appropriate steps as per the law, upon receipt of application in this regard from the plaintiff. Issue no. 2 is disposed of accordingly.
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Issue No.3 Relief.
25. In view of aforesaid discussion, missing father of the plaintiff namely Sh. Munesh Kumar S/o Sh. Laxman Singh is presumed to be dead with declaration of his Civil death in terms of Section 108 of Indian Evidence Act. Further, since defendant/MCD is under statutory duty to maintain the record of death of a person of the area under its supervision/maintenance and also it has authority/duty to issue appropriate death certificate in respect of death of such person, MCD is directed to issue death certificate of said Sh. Munesh Kumar at request of plaintiff. Further, defendant no.2/LIC is take appropriate steps as per the law, upon receipt of application in this regard from the plaintiff.
Decree Sheet be prepared accordingly. Considering the circumstance of the present case, no orders as to cost.
File be consigned to Record Room after due compliance.
Pronounced in the open (Anubhav Jain)
court on 25/01/2023 JSCC-cum-ASCJ/Guardian Judge
East District, KKD Courts, Delhi
This judgment contains 14 pages and each page is signed by me.
Page 14 of 14