Delhi District Court
Neetu Devi vs Govt Of Nct Of Delhi on 20 April, 2024
IN THE COURT OF MS. RUBY NEERAJ KUMAR,
SENIOR CIVIL JUDGE-CUM-RENT CONTROLLER,
SOUTH DISTRICT, SAKET COURTS, NEW DELHI.
CS SCJ -1029/21
CNR: DLST03-002060-2021
Smt. Neetu Devi
W/o Sh. Dinesh Kumar
R/o H. No. 785,
Kumar Mohalla,
Village Chirag Delhi,
New Delhi.
Plaintiff.
Versus
1. Govt. of NCT
Office District Magistrate
Revenue Officer,
South District,
Mehrauli Badarpur Road,
Saket, New Delhi.
2. S.H.O.
P.S. Malviya Nagar.
3. SDMC
South Delhi Office
Arbindo Marg,
Green Park, New Delhi.
Defendants.
SUIT FOR DECLARATION AND MANDATORY
INJUNCTION.
Date of institution of suit : 14.12.2021
Date of arguments : 16.04.2024
Date of pronouncement of judgment : 20.04.2024
JUDGMENT
CS SCJ- 1029/21 Neetu Devi vs. Govt. of NCT of Delhi & Ors. 1 /12 BRIEF FACTS
1. Succinct facts of the case as enunciated in the plaint are that the plaintiff alongwith her family is residing at House No. 785, Kumar Mohalla, Village Chirag Delhi, New Delhi. It is averred that the plaintiff got married to Dinesh Kumar S/o Sh. Gyan Chand on 07.12.2008, as per Hindu rites & customs. One son & one daughter were born out of the said wedlock on 01.01.2010 and 13.05.2015 respectively. It is further averred that on 28.07.2014, husband of the plaintiff, namely, Dinesh Kumar S/o Sh. Gyan Chand went missing from village Chirag Delhi, New Delhi. Plaintiff made all the efforts to find her husband but he could not be found. It is submitted that the plaintiff also lodged a missing report at PS Malviya Nagar, on 28.07.2014 vide DD No. 68-B. It is averred that even after the lapse of more than seven years, there is no information of Sh. Dinesh Kumar. Hence, by way of instant suit, plaintiff has prayed for relief of declaration of death of Sh. Dinesh Kumar S/o Sh. Gyan Chand and for decree of mandatory injunction, directing concerned Authority to issue Death Certificate of Sh. Dinesh Kumar.
2. After due service of summons upon the defendants, status report was filed, on behalf of the defendant No.2/SHO and Written Statement was filed, on behalf of defendant No.3/SDMC (now unified as 'MCD').
WRITTEN STATEMENT
3. Defendant No. 3 filed the Written Statement and took preliminary objection that the suit of the plaintiff is barred by the CS SCJ- 1029/21 Neetu Devi vs. Govt. of NCT of Delhi & Ors. 2 /12 provisions of Section 477/478 of the Delhi Municipal Corporation Act, as the plaintiff has not served the statutory notice upon the defendant, prior to filing the present suit. It is further submitted that the suit of the plaintiff is not maintainable as per Rule 5.6 of the Death and Birth Booklet issued by the Home Ministry. It has also been asserted that the suit is liable to be rejected under Order VII Rule 11 CPC as there is no cause of action in favour of the plaintiff and the suit is bad for mis-joinder of necessary parties. Lastly, it is submitted that the suit of the plaintiff is not maintainable as no relief has been claimed against the defendant No.3.
4. Vide its status report, defendant No.2/SHO, has submitted that missing report of Sh. Dinesh Kumar S/o Sh. Gyan Chand was registered at PS Malviya Nagar vide DD No. 68B dated 28.07.2014. It is further submitted therein that despite investigation, Dinesh Kumar has remained untraceable. Alongwith the said report, statements of the neighbours of the plaintiff have been annexed wherein, they have submitted that they have not seen Dinesh Kumar after 28.07.2014.
ISSUES
5. On the basis of the pleadings of the parties, following issues were framed by the Ld. Predecessor vide order dated 09.05.2023:-
ISSUES
(i) Whether plaintiff is entitled for decree of declaration to the effect that Sh. Dinesh Kumar be presumed to be died? OPP CS SCJ- 1029/21 Neetu Devi vs. Govt. of NCT of Delhi & Ors. 3 /12
(ii) Whether the plaintiff is entitled for decree of mandatory and permanent injunction directing the defendants no.1 and 2 to issue death certificate of Sh. Dinesh Kumar? OPP
(iii) Whether the suit of the plaintiff is barred by the provisions of Section 477/478 of DMC Act for not serving statutory notice upon defendant no.3/MCD? OPD3
(iv) Whether the present suit is not maintainable against defendant no.3/MCD as no relief has been claimed against it?
OPD 3
(v) Whether the suit of the plaintiff is liable to be rejected under Order VII Rule 11 CPC for want of cause of action? OPD 3
(vi) Relief.
6. It is pertinent to mention herein that vide order dated 09.05.2023, passed by the Ld. Predecessor, defence of the defendants No.1 & 2 was struck off and they were proceeded ex- parte.
EVIDENCE
7. In order to prove her case, plaintiff has examined herself as PW-1 & Constable Matadin Meena as PW-2.
8. Plaintiff, Neetu Devi was examined as PW-1 and her affidavit in evidence was tendered, which is Ex.PW-1/1. In support of her case, plaintiff has relied upon the following documents:
CS SCJ- 1029/21 Neetu Devi vs. Govt. of NCT of Delhi & Ors. 4 /12
(i) Ex. PW-1/A, which is copy of Aadhar Card of the plaintiff.
(ii) Mark - A, which is copy of Ration Card.
(iii) Mark- B, which is copy of Electricity Bill.
(iv) Mark- C, which is photograph of marriage.
(v) Ex. PW-1/E, which is copy of Election I-Card of
Sh. Dinesh Kumar.
(vi) Ex. PW-1/F, which is copy of Aadhar Card of
Sh. Dinesh Kumar.
(vii) Mark 'D', which is copy of DD No. 68-B dated 28.07.2014, lodged at PS Malviya Nagar.
(viii) Mark- E, which is copy of Hue & Cry Notice.
9. PW-1 was cross-examined by Ld. Counsel for the defendant No.3 and therein, she admitted the suggestion that she had not given any legal notice to the MCD, prior to the filing of the present suit.
10. PW-2, Constable Matadin Meena, P.S. Malviya Nagar entered the witness box and deposed that he has brought the record with respect to DD No. 68-B dated 28.07.2014, vide which missing report of Sh. Dinesh Kumar was lodged at PS Malviya Nagar, which is Ex.PW-2/A. Further, report dated 29.05.2022 signed by SI Ram Niwas and forwarded by SHO concerned is Ex. PW-2/B. Despite opportunity being given, he was not cross-examined by the defendant No.3.
CS SCJ- 1029/21 Neetu Devi vs. Govt. of NCT of Delhi & Ors. 5 /12
11. Subsequent thereto, PE was closed on 16.04.2024. Further, Ld. Counsel for the defendant No.3 had submitted that he does not intend to adduce any evidence and, therefore DE was closed on the same date.
BRIEF REASONS FOR DECISION AND DECISION THEREOF
12. I have heard the submissions made by Ld. Counsel for the parties and carefully perused the record. The issue-wise findings of this Court are as under:-
Issue No.(i): Whether plaintiff is entitled for decree of declaration to the effect that Sh. Dinesh Kumar be presumed to be died? OPP
13. The onus to prove the said issue was upon the plaintiff. However, before proceeding further, it would be apposite to elucidate the law on the subject. It is settled that a declaration as to civil death is a declaration as to the status of a person. A declaration as to civil death can be granted by a civil court under section 34 of the Specific Relief Act, 1963 read with section 9 of the Code of Civil Procedure, 1908.
14. The grant of decree of declaration to declare civil death of a person is structured on the presumption envisaged in section 108 of the Indian Evidence Act, 1972. The said provision propounds that a person is presumed to be dead, when such person has neither been heard of nor seen by family members, friends, society, etc. for a continuous period of 7 years or more. The burden of establishing such person is alive who, has not been CS SCJ- 1029/21 Neetu Devi vs. Govt. of NCT of Delhi & Ors. 6 /12 seen or heard of for a continuous period of 7 years, is upon such party who is affirming that such person is alive.
15. Section 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 alive 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 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. 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.
CS SCJ- 1029/21 Neetu Devi vs. Govt. of NCT of Delhi & Ors. 7 /12
16. This view has been affirmed by the Hon'ble Apex Court in case titled as LIC of India v. Anuradha, AIR 2004. SC 2070 wherein, it was held as under:
"Neither section 108 of the Indian Evidence Act nor logic, reason or sense permits a presumption or assumption being drawn or made that the person or heard of for seven years was dead on the date of his disappearance or soon after the date and time on which he was last seen. The only inference permissible to be drawn and based on the presumption is that the man was dead at the time when the question arose subject to a period of seven years absence and being unheard of having elapsed before that time. The presumption stands unrebutted for failure of the contesting party to prove that such man was alive either on the date on which the dispute arose or at any time before that so as to break the period of seven years counted backwards from the date on which the question arose for determination. "
17. In the instant case, the entire evidence brought on record by the plaintiff has remained uncontroverted and unrebutted. Defendant No.3 has nowhere affirmed that Sh. Dinesh Kumar is alive. Rather the written statement comprises only of denial of all claims made by the plaintiff, without any positive affirmation of any fact. The suit was instituted on 14.12.2021. Plaintiff has claimed that she had last seen her husband, Sh. Dinesh Kumar, before he went missing, on 28.07.2014. Thereafter, plaintiff had lodged a missing report at PS Malviya Nagar, on 28.07.2014 vide DD No. 68-B. The said DD entry has not been challenged or disputed by the defendants. As per the status report filed by the defendant No.2, no clue of the missing person could be found till date. The relationship of the plaintiff with the missing person has also not been challenged. The defendants have not stated that the husband of plaintiff is alive, in fact, it is not even their case that he is alive or has been heard of by the plaintiff or her family CS SCJ- 1029/21 Neetu Devi vs. Govt. of NCT of Delhi & Ors. 8 /12 members after 28.07.2014. Hence, the testimony of the witnesses clearly establishes that the plaintiff or her family members are not aware about the whereabouts of Sh. Dinesh Kumar, who has been missing since 28.07.2014.
18. Hence, on the basis of oral and documentary evidence, filed on record by the plaintiff, reasonable presumption is hereby raised under section 108 of Indian Evidence Act that the missing person Sh. Dinesh Kumar has not been heard of for past 7 years by those, who would naturally have heard of him if, he had been alive. Therefore, the case of the plaintiff stands proved on the basis of burden of proof of preponderance of probabilities. The plaintiff is entitled to relief of declaration in her favour. Hence, the issue no. (i) is decided in favour of the plaintiff and against the defendants.
Issue No. (ii) Whether the plaintiff is entitled for decree of mandatory and permanent injunction directing the defendants no.1 and 2 to issue death certificate of Sh. Dinesh Kumar? OPP Issue No. (iv) Whether the present suit is not maintainable against defendant no.3/MCD as no relief has been claimed against it? OPD 3
19. Both the above said issues are decided together. During the course of arguments, Ld. Counsel for the plaintiff had submitted that inadvertently, prayer clause No.(iii) was incorporated in the plaint. At this stage, it would be apposite to reproduce the prayer clause as under:-
CS SCJ- 1029/21 Neetu Devi vs. Govt. of NCT of Delhi & Ors. 9 /12 "(i) Pass a decree declaring that Dinesh Kumar presumed to be died.
(ii) Pass direction to concerned authority that issue Death Certificate.
(iii) Pass a decree of mandatory and permanent injunction to the defendants No. 1 & 2 issue Death Certificate, may kindly be passed in favour of the plaintiffs."
20. Ld. Counsel for the plaintiff submits that the present suit has been filed for relief of declaration of civil death of missing person, Dinesh Kumar and for direction to concerned authority to issue Death Certificate of the missing person. It is submitted that relief qua mandatory injunction has essentially been sought against the concerned authority i.e. defendant No.3 and not qua defendants No.1 & 2. It is settled position that Death Certificate of a person is to be issued by the Municipal Corporation and not by the SHO or SDM. It is apparent from the prayer made in the suit that the plaintiff has inadvertently, sought relief of mandatory injunction against the concerned authority as well as defendants No. 1 & 2. The Objections raised by the defendant No.3 that no relief has been sought by the plaintiff qua them is misplaced and misconceived. Though the plaintiff has not specifically mentioned in the prayer clause that the defendant No. 3 be directed to issue Death Certificate, the defendant No.3 shall fall within the purview of the concerned authority. It is settled law that the Courts shall not adopt hyper technical approach while deciding an issue. The endeavor of the court should be to advance the cause of justice. Hence, the issue No. (ii) is decided CS SCJ- 1029/21 Neetu Devi vs. Govt. of NCT of Delhi & Ors. 10 /12 against the plaintiff and issue No. (iv) is decided in favour of the plaintiff and against the defendant No. 3. In view of the same, I am of the considered opinion that the plaintiff is entitled to relief of mandatory injunction thereby directing defendant No.3 to issue Death Certificate of Sh. Dinesh Kumar.
Issue No.(iii) Whether the suit of the plaintiff is barred by the provisions of Section 477/478 of DMC Act for not serving statutory notice upon defendant no.3/MCD? OPD3
21. The onus of proof of issue no.(iii) is upon defendant No.
3. The defence raised by defendant No.3 is that no statutory notice under section 477/478 DMC Act has been given by the plaintiff, before filing of the present suit. In my considered opinion, section 477/478 DMC Act is not applicable to suits of this nature. By way of the present suit, the plaintiff is seeking the relief of declaration qua civil death of Sh. Dinesh Kumar, which relief is outside the purview and powers of Municipal Authority. Declaration of civil death of any person is necessarily within the jurisdiction of civil court only and hence, no statutory notice under 477/478 DMC Act is required to be given. The role of statutory authority like defendant No.3 begins only after declaration of civil death is passed by the civil court concerned, which is issuance of Death Certificate. Hence, this suit is not barred under section 477/478 DMC Act for want of statutory notice. Thus, this issue is decided against the defendant no.3 & in favour of the plaintiff.
Issue No. (v) Whether the suit of the plaintiff is liable to be rejected under Order VII Rule 11 CPC for want of cause of action? OPD 3 CS SCJ- 1029/21 Neetu Devi vs. Govt. of NCT of Delhi & Ors. 11 /12
22. The onus to prove issue no. (v) was upon the Defendant No.3. Except raising bald objections, not even an iota of evidence has been adduced by the defendant No.3 with respect to the said issue. In the absence of any evidence being adduced, defendant No.3 has miserably failed to prove the said issue. Accordingly, issues no. (v) is decided against the defendant no. 3 and in favour of the plaintiff.
RELIEF
23. In view of the aforesaid findings, the plaintiff is entitled to decree of declaration of civil death of Sh. Dinesh Kumar S/o Gyan Chand, with direction to defendant No.3/MCD to issue Death Certificate of Sh. Dinesh Kumar S/o Gyan Chand to the plaintiff.
24. The suit of the plaintiff is hereby decreed. Date of judgment shall be treated as date of death of Sh. Dinesh Kumar S/o Gyan Chand.
25. No order as to costs. Decree-sheet be prepared, accordingly.
26. File be consigned to record room after due compliance.
Digitally signed by RUBY RUBY NEERAJ
NEERAJ KUMAR
Announced in the open court KUMAR
Date: 2024.04.20
16:06:24 +0530
on 20.04.2024. (Ruby Neeraj Kumar)
SCJ-cum-RC
South District, Saket Courts,
New Delhi
CS SCJ- 1029/21 Neetu Devi vs. Govt. of NCT of Delhi & Ors. 12 /12