Bangalore District Court
Sri. R. Maruthi vs The Chief Secretary on 29 June, 2019
IN THE COURT OF THE VII.ADDL.CITY CIVIL &
SESSIONS JUDGE, BENGALURU (CCH.No.19)
Dated: This the 29th day of June 2019.
Present
Smt.M.LATHA KUMARI, M.A. LL.M.,
VII Addl. City Civil & Sessions Judge,
Bengaluru.
O.S.NO.383/2018
Plaintiffs: 1. Sri. R. MARUTHI,
S/o Late T. Rangaswami,
Aged about 65 years,
2. Sri M. KESHAVAMURTHY
S/o Sri. R. Maruthi,
Aged about 38 years,
3. Sri M. PUSHPAVATHI,
D/o Sri. R. Maruthi,
Aged about 34 years,
All are residing at No. 19,
1st Main Road, Opp: KTR
College, Hegganahalli,
Bangalore-560091.
(By Sri N. Anjan Gowda
Adv.)
-Vs-
Defendant: 1. THE CHIEF SECRETARY,
Government of Karnataka,
Vidhana Soudha, Dr.
Ambedkar Road, Bangalore-
560 001.
2. THE COMMISSIONER OF
POLICE, (Law & Order),
Infantry Road, Bengaluru-
560 001.
3. THE DEPUTY
COMMISSIONER,
Bengaluru Urban District,
Behind Kandaya Bhavana,
K.G. Road, Bengaluru-560
009.
4. THE TAHSILDAR,
Bengaluru North Taluk,
Bengaluru-560 009.
5. THE STATION HOUSE
OFFICER,
K.P. Agrahara Police
Station, (Law & Order),
Bengaluru.
6. THE COMMISSIONER,
Bruhath Bangalore
Mahangara Palike, N.R.
Square, Bengaluru - 560 002.
7. THE REGISTRAR,
BIRTH AND DEATH,
Bruhath Bangalore
Mahangara Palike, N.R.
Square, Bengaluru - 560 002.
[By Shantha.B. Mullur
Adv.].
Date of institution of suit 12.01.2018
Nature of the suit For Declaration
Date of commencement 06.02.2019
of recording of evidence
Date on which Judgment 29.06.2019
was pronounced
Total duration Days Months Years
17 05 01
J UDGMENT
This is plaintiffs' suit to declare that
Smt.Lakshmamma R, wife of plaintiff No.1 and mother of
plaintiffs No.2 and 3 is deemed to be dead in accordance
with law and thereby direct the defendants No.6 and 7 to
issue Death Certificate of Smt.Lakshmamma.R.
2. The brief facts of the plaintiffs' case is that,
1st plaintiff husband of one Smt.Lakshmamma.R. D/o. Late
Ramanna and out of their wed-lock they got two children
i.e., plaintiffs No.2 and 3 herein. Plaintiffs alongwith said
Lakshamma were residing in the House No.58/1, 6th Cross,
Magadi road, Bengaluru-53. When such being the state of
affairs, on 22.3.2010 said Lakshmamma had left the house
as usual and did not return back to the house. The plaintiffs
discussed with her parental family members and searched
every where, but all their efforts went in vain and hence
having no other option, her brother by name
Sri Chandrappa lodged a police complaint before 5th
defendant, which came to be registered in Cr.No.92/2010.
Subsequent to lodging of the said complaint, 1st plaintiff
made all his efforts to trace out missing of
Smt.Lakshmamma. They also issued paper publication in
respect of the same in Kannada daily news paper. From
22.3.2010 to this day, said Smt.Lakshmamma, who left the
house did not return back and her whereabouts could not
be traced by plaintiffs or the 5th defendant herein. As per
law, if whereabouts of the person is not known for a
continuous period of seven years it is presumed that such
person is dead.
It is plaintiffs further case that, said Smt.Lakshmamma
has got immovable property in her name bearing
Sy.No.15/3 measuring 2 acres 13¾ guntas situated at
Puradapalya village, Tavarekere Hobli, Bengaluru South
Taluk. Plaintiffs being her legal heirs are entitled to
succeed to her estate by changing necessary documents in
her name. Hence, plaintiffs issued legal notice
dt:4.11.2017 to the defendants for issuance of Death
Certificate. The defendants either replied said notice nor
issued the Death Certificate of Smt.Lakshmamma as
prayed for. Having no other way, plaintiffs constrained to
file this suit for the reliefs mentioned supra.
3. On issuance of suit summons, defendants No.1
to 5 appeared through their Government Pleader.
Defendants No.1 to 3 and 5 resisted the suit of the plaintiffs
by filing common written statement asserting that, plaintiffs
have not complied with the statutory legal notice as
required u/S.80(2) of CPC., prior to filing this suit and also
not approached the Court with clean hand. At Para-4 of the
written statement, these defendants specifically stated that,
the complainant Chandrappa had lodged a complaint on
27.3.2010 stating that, his elder sister Smt.Lakshmamma,
50 years had gone out of the house on 22.3.2010 at about
4.00 p.m. and had not returned back home and was found
missing and requested to trace her, on the basis of the
complaint given FIR was registered at K.P.Agrahara Police
Station in Cr.No.92/2010. During the course of investigation
dt:10.5.2010 Sri Srinivas S/o.Lt.Ramanna has given
statement stating that Smt.Lakshmamma, her husband
Maruthi i.e., 1st plaintiff herein, daughter Pushpavathi is deaf
and dumb and her son is addicted to alcohol and Maruthi
has a property at 6th Cross Magadi road, K.P.Agrahara,
which consists of 4 shops and 1 small house, the shops
were rented to Salamma and Mallamma.
Smt.Lakshmamma also having a property of 2.5 acres of
land at Tavarekere, Puttaiana Palya consisting Mango trees
and a 30 x 40 sized land being rented to one Anand for
growing Mushroom. 1st plaintiff filed a suit against tenants
to vacate the shop premises. There was also a property
dispute between brothers of Maruthi and his brothers
Krishnamurthy and Premkumar. Smt.Lakshmamma also
had a financial dispute with Anand and Rajanna and there
was quarrel among them and hence suspected missing of
Smt.Lakshmamma on the basis of statement of said
Srinivas. The case was changed from woman missing to
case u/S.363 IPC i.e., kidnapping of a woman. FIR came to
be forwarded to 5th ACMM Court. The family members
were interrogated, mobile call record details were also
collected and efforts had been carried out to trace
Smt.Lakshmamma. Since no information could be
obtained, 'C' report was submitted to the to 5th ACMM
Court on 24.3.2012. There is no cause of action arose to
file the above suit and hence pray for dismissal of this suit.
4. Defendants No.6 and 7 also resisted this suit by
filing their written statement asserting that, plaintiffs have
not approached this Court with clean hands. Missing
complaint of Smt.Lakshmamma came to be changed into
kidnap case on suspicion. There is also no cause of action
for the plaintiffs to file this petition and hence, pray for
dismissal of this suit against them.
5. Based on these pleadings, this Court has
framed following issues:
1. Whether the plaintiffs prove that Smt.
Lakshmamma.R W/o plaintiff No.1 and
mother of plaintiff No.2 and 3 is not heard
for more than 7 years?
2. Whether the defendant No.1 to 3 and 5
proves that suit of the plaintiffs is not
maintainable for not issuing statutory
notice u/s 80(2) of CPC.,?
3. Whether the plaintiffs prove that they are
entitle for the relief of declaration as
sought?
4. Whether the plaintiffs prove that they are
entitle for the relief of mandatory
injunction against defendant No.4 as
sought?
5. What order or decree?
6. 2nd plaintiff got examined himself as PW.1 in
support of plaintiffs' case and got marked as many as 22
documents as per Ex.P.1 to Ex.P.22 at the first instance.
Further, PW.1 recalled himself and got marked another 5
documents as per Ex.P23 to P27. The defendants though
resisted the suit of the plaintiffs stating that there is no
cause of action for the suit plaintiffs filed this suit, none of
the defendants stepped into the witness-box and led
evidence on behalf of their defence.
7. I have carefully scrutinized entire records before
me. Heard the arguments.
8. My findings on the above Issues are:
Issue No.1 : In the Affirmative
Issue No.2 : In the Negative
Issue No.3 : In the Affirmative
Issue No.4 : In the Affirmative
Issue No.5 : As per final order,
for the following:
REASONS
9. ISSUES NO.1 and 2: These two issues are taken
up together for consideration to avoid repetition of facts.
10. It is the case of plaintiffs that,
Smt.Lakshmamma the wife of 1st plaintiff herein, mother of
plaintiffs No.2 and 3, who left the house as usual on
22.3.2010 did not return home and efforts made by them,
searching for her were in vain and till today she has not
returned and concerned police also not able to trace her.
In this regard 2nd plaintiff who got examined himself as
PW.1 got marked as many as 22 documents at the first
instance as per Ex.P1 to P22 and 5 more documents got
marked subsequently by recalling himself as Ex.P23 to P27.
11. Ex.P1 is the Genealogical Tree by way of
Affidavit. However, defendants are not disputing
relationship claimed by the plaintiffs with said
Smt.Lakshmamma. Ex.P2 is the office copy of legal notice
dt:5.12.2017 issued to defendants No.1 to 5 herein. It is
also the contention of defendants No.1 to 5 that, plaintiffs
have not issued any notice as required u/S.80(2) of CPC.,
However, Ex.P2 establishes that much prior to filing of this
suit, plaintiffs issued notice to the defendants herein as
required u/S.80(2) CPC., Ex.P3 are the postal receipts for
having sent the notice through RPAD. Ex.P4 are two postal
acknowledgements for having served the notice on
defendants No.3 and 4. Ex.P8 is the certified copy of sale
deed dt:15.11.2007. Ex.P9 to P19 are all documents of
plaintiffs herein. Another vital document of plaintiffs herein
is with regard to their identity, which is not of much
consequence herein. Another vital document is Ex.P20,
complaint given before K.P.Agrahara Police Station and
Ex.P21 is the FIR, Ex.P22 is the 'C' Report filed by the
concerned police stating that inspite of their best efforts
they were unable to trace Smt.Lakshmamma and thereby,
submitted their final 'C' report on 27.1.2012.
12. PW.1 further got marked endorsement issued
by concerned police as per Ex.P23 and P24. Ex.P25 is the
office copy of legal notice issued to defendants No.6 and 7.
Ex.P26 and P27 are postal receipt and postal track
consignment. In the cross-examination of PW.1 by learned
counsel for defendants No.1 to 5 by Smt.S.B.M, that FIR
came to be registered against him that he has kidnapped
his mother and said complaint forwarded to 5th ACMM. He
also admits that, in response to said complaint, many
relatives and witnesses were interrogated and enquired by
concerned police. It is also elicited that he has not given
any notice to defendants No.1 to 5 herein before filing this
suit. However, this version is contrary to the document
Ex.P2 produced and relied upon by the plaintiffs. It is
further elicited by defendants No.6 and 7 learned Counsel
Sri M.S. that, there is delay in lodging complaint. It is also
elicited that, plaintiffs have no difficulty in examining
maternal uncle of PW.1. However, defendants No.1 to 5
admit in their written statement that, after taking all
necessary steps, concerned police i.e., defendant No.5
filed 'C' Report. On the other hand, himself has produced
said 'C' final report filed by 5th defendant in response to the
complaint lodged regarding missing of Smt.Lakshmamma
in question. These documents establish that, said
Smt.Lakshmamma has not been traced from 22.3.2010
onwards even till filing of this suit. The documents relied
upon by the plaintiffs are not seriously disputed by the
defendants herein. Considering the same, more particularly
'C' Report Ex.P22 produced by the plaintiffs and also the
document Ex.P2 for having given notice defendants herein
as required u/S.80(2) CPC., I have answered issue No.1 in
the affirmative and issue No.2 in the negative.
13. ISSUES NO.3 & 4: Since wife of 1st plaintiff and
mother of plaintiffs No.2 and 3 was missing from 22.3.2010
and concerned police have filed 'C' report as early as in the
year 2012 as per Ex.P22 and PW.1 stated on oath that,
even till today his mother has not been traced inspite of
their best efforts and more than 7 years already exhausted
at the time of filing of this suit. As per law,
Smt.Lakshmamma is presumed to be not alive. Under such
circumstances, plaintiffs are entitled for Death Certificate as
sought for and a direction in this regard to the defendants
herein by way of mandatory injunction. Accordingly, I have
answered these two issues in the affirmative.
14. ISSUE NO.5: In view of my findings on Issues
No.1 to 4, I proceed to pass the following:
ORDER
Suit of the plaintiffs is decreed.
It is declared that Smt.Lakshmamma.R W/o. 1st plaintiff and mother of plaintiffs No.2 and 3 is declared to be dead as per the presumption under law.
Defendants No.6 and 7 are directed to issue Death Certificate of Smt.Lakshmamma.R to the plaintiffs by collecting necessary fee.
Further, plaintiffs are directed to take paper publication of declaration of death of Smt.Lakshmamma.R within 30 days from today and produce the same before defendants No.6 and 7 while applying for Death Certificate of Smt.Lakshmamma.R. Parties to bear their own cost considering the nature of suit.
Draw decree accordingly.
*** (Dictated to the J.W, computerized and print out taken by her, revised, corrected, signed and then pronounced by me in open Court today the 29th day of June 2019).
(M. LATHA KUMARI) VII.ADDL.CITY CIVIL & SESSIONS JUDGE, BENGALURU. ANNEXURE Witnesses examined on behalf of Plaintiffs:
PW.1 : Sri. M. Keshavamurthy Witness examined on behalf of Defendants:
- NIL -
Documents marked on behalf of Plaintiff:
Ex.P.1 Genealogical tree by way of affidavit Ex.P.2 Office copy of Legal notice dated 05.12.2017 issued to Defendants No.1 to 5.
Ex.P.3 Postal receipts Ex.P.4 2 postal acknowledgment Ex.P.5 Copy of complaint given to department
of postal authority for not receiving another 3 acknowledgment Ex.P.6 Reply given by concerned postal and 7 authorities Ex.P.8 Certified copy of sale deed dated 15.11.2007 Original sale deed perused and returned to PW.1 after cross examination Ex.P.9 Certified copy of Field sketch Ex.P.10 Certified copy of affidavit dated 16.11.2007 of Department of Stamps and Registration.
Ex.P.11 Revenue document Ex.P.12 Mutation Ex.P.13 RTC Ex.P.14 Notarized copy of APL Card of my mother Original perused and returned. Ex.P.15 Notarized copy of election ID card of 1st plaintiff Ex.P.16 Notarized copy of Aadhar card of 1st plaintiff Ex.P.17 Notarized copy of 2nd plaintiff's PAN card.
Ex.P.18 Notarized copy of Election ID card of 2nd plaintiff Ex.P.19 Notarized copy of 3rd plaintiff's PAN card.
Ex.P.20 Attested copy of complaint given to K.P Agrahara Police station. Ex.P.21 Attested copy of FIR in Crime No.92.
Ex.P.22 Attested copy of Charge sheet (2 pages in all) Ex.P.23 Endorsement issued by K.P. Agrahara police station dated 27.1.2018.
Ex.P.24 Another Endorsement issued by K P. Agrahara police station dated 15.4.2018.
Ex.P.25 Office copy of legal notice issued to defendant 6 and 7.
Ex.P.26 Postal receipt Ex.P.27 Postal track consignment ( two in numbers) Documents marked on behalf of Defendants:
- Nil -
VII. ADDL.CITY CIVIL & SESSIONS JUDGE, BENGALURU.