Allahabad High Court
Smt. Alka Sharma vs Union Of India And Others on 17 January, 2020
Author: Vivek Agarwal
Bench: Vivek Agarwal
HIGH COURT OF JUDICATURE AT ALLAHABAD Reserved on 08.01.2020 Delivered on 17.01.2020 In Chamber Case :- SECOND APPEAL No. - 192 of 2007 Appellant :- Smt. Alka Sharma Respondent :- Union Of India And Others Counsel for Appellant :- Rajendra Prasad Tiwari Counsel for Respondent :- Ram Nath Hon'ble Vivek Agarwal,J.
1. Heard Sri Rajendra Prasad Tiwari, learned counsel for the appellant.
2. This second appeal has been filed by the plaintiff-appellant being aggrieved by judgment and decree dated 06.11.2006 passed by learned Additional District Judge, Court No. 5, Jhansi in Civil Appeal No. 90 of 2005 (Smt. Alka Sharma vs. Union of India and others), dismissing the appeal and affirming the judgment and decree passed by learned Civil Judge (Senior Division) in Original Suit No. 380 of 2002 vide judgment and decree dated 05.05.2005.
3. Brief facts leading to the present appeal are that plaintiff had filed a suit for declaration of civil death of her husband- Sri Govind Prasad Sharma son of Late Devendra Prasad Sharma. It is averred that she was married to said Sri Govind Prasad Sharma son of Late Devendra Prasad Sharma residence of 760, Railway Colony, Jhansi, Uttar Pradesh on 12.03.1992 as per the hindu customs and traditions. At the relevant point of time, Sri Govind Prasad Sharma was working as a senior clerk in the Office of Divisional Railway Manager, Jhansi.
4. In February, 1993, she had travelled to Mumbai along with her husband and son inasmuch as her son was to be operated on 19.02.1993 at Lokmanya Tilak Hospital, Sion, Mumbai and accordingly, she was admitted in the hospital on 19.02.1993.
5. It is her claim that since 19.02.1993, her husband is not traceable nor heard of though, she had reported the matter at Matunga Police Station along with elder brother of her husband and since more than seven years time has lapsed and nothing has been heard about him, therefore, in terms of provisions contained in Section 108 of the Evidence Act, she is entitled to a declaration to the effect that civil death of her husband be declared and consequently, she be granted a compassionate appointment in place of her husband and also payment of provident fund, employees welfare scheme and other service benefits along with pension be extended in favour of the plaintiff. It was also averred that plaintiff had sent a notice under Section 80 C.P.C. to the defendant nos. 1 and 2 namely, 1993 General Manager, Central Railway, Mumbai and D.R.M., Jhansi Division, Jhansi but since no action was taken on her notice and despite lapse of the period of notice which was given on 06.07.2002 and on 06.10.2002, suit was filed claiming that cause of action had arisen within territorial jurisdiction of the Courts at Jhansi.
6. It has come on record that a written statement was filed on behalf of the defendant nos. 1 and 2 accepting the fact that husband of the plaintiff-applicant was an employee of the railways and she had lodged a report in regard to her husband going missing with the Matunga Police Station. It was also accepted that she had visited Mumbai along with her husband for treatment of her son for which purpose, she was admitted to Lokmanya Tilak Hospital, Sion, Mumbai. It is also admitted that plaintiff-applicant had made a prolonged correspondence with defendant no. 2 in regard to payment of service benefits of her husband and grant of compassionate appointment and she was informed by the Welfare Inspector of the defendant no. 2 that she should produce a death certificate from the competent court in the office as a result of which, she was forced to file a suit seeking declaration of civil death of her husband. In the additional statements, defendant nos. 1 and 2 made an averment that suit has been filed without there being any cause of action and further averred that Sri Govind Prasad Sharma was still continuing to stay in Railway Quarter No. RB-II/760-A, Jhansi as it has yet not been vacated and is still in possession of Smt. Alka Sharma and Smt. Alka Sharma has not handed over the vacant possession of the said premises to the defendant no. 2. Further, it has also been admitted that as per the records available in the office on the basis of the police report, it was informed that the husband of the applicant had filled necessary settlement documents and such documents are pending subject to fulfilment of technical requirements. In para-16, defendants admitted that they have no information about the fact that whether Sri Govind Prasad Sharma is alive or not, but admitted that he his not reported to work since February 1993 on the basis of which applicant has filed an application seeking compassionate appointment in place of her husband. Though, also averred that since son/daughter of the applicant was not impleaded as a party, there was non-joinder of the necessary parties and thereafter it is mentioned that the onus is on the plaintiff to prove the averments as made in the application.
7. Learned Trial Court had framed as many as five issues and held that no documentary evidence was produced on record in support of contention that any report was lodged by the plaintiff with Matunga Police Station and oral evidence cannot be take place of the documentary evidence and further held that since no steps were taken to serve the public at large, therefore, plaintiff failed to prove that civil death of her husband- Sri Govind Prasad Sharma has taken place and therefore, the suit has been dismissed. Further, technicality has been inserted by learned Civil Judge that in the plaint not only a declaration for civil death should have been sought, but she should have sought further declaration claiming rights as have been mentioned in para-6 of the plaint and since such declaration has not been sought, therefore, plaintiff is not entitled to any relief.
8. Learned First Appellate Court proceeded on further presumption that plaintiff could not prove even the factum of marriage as it was performed in a religious trust namely, Gayatri Sakti Peeth by producing any of her own relative or relative of her husband or any close friend and dismissed the appeal.
9. This second appeal has been admitted on the following substantial question of law that whether in view of Section 108 of the Evidence Act, 1872 for proving a civil death of a person who is reported to be missing and is not traceable for over 7 years submission of final report by the police is mandatory?
10. In view of the material available on record in regard to whether applicant/appellant was entitled to such declaration is to be examined.
11. It is not in dispute that Union of India through General Manager, Western Railway and the D.R.M., Jhansi Division, Jhansi besides the public at large were arrayed as respondents. Order sheet dated 27.11.2002 from the Court of Civil Judge (Senior Division) reveals that plaint was filed and direction was given to register the case, summons were to be issued to the defendants, case was fixed for their written statement on 06.02.2003 and for framing of the issues on 13.02.2003. Order sheet dated 06.02.2003 reads that summons have not been returned and therefore, case was fixed for 13.02.2003. On 13.02.2003, learned Trial Court recorded that summons have not been returned after service and therefore, notice through registered post be sent. On 21.03.2003, it has been noted by the courts below, that, written statement on behalf of the respondent nos. 1 and 2 was filed. Thus, it is apparent that the learned Trial Court erred in holding that no steps were taken by the plaintiff-applicant not to serve the public at large through publication inasmuch as when summons were issued to the defendants on 27.11.2002, then it will be presumed that the summons were issued for the general public also and those notices must have been displayed by the process server on the notice board of the Court on a conspicuous place and it was for the learned Civil Judge (Senior Division) to have ordered for service of notice through publication on the public at large. Therefore, for the failure of learned Trial Court to look into these aspects as contained in Order V Rule 20 C.P.C. and call for the report for service of notice on public at large when summons were directed to be issued on 27.11.2002 from the concerned process server, no adverse findings could have been recorded against the plaintiff.
12. Further, the learned Trial Court erred in not appreciating the fact that factum of marriage of the applicant with Sri Govind Prasad Sharma was not disputed by the employer of Sri Govind Prasad Sharma. On the contrary, there is a tacet admission of the employer of Sri Govind Prasad Sharma that applicant is the wife of Sri Govind Prasad Sharma when they admitted in their written statement the averments made in the plaint that applicant had travelled with Sri Govind Prasad Sharma and her son to Mumbai where she was admitted in Lokmanya Tilak Hospital, Sion, Mumbai and also the fact that a report was lodged by her along with the elder brother of the missing person on 19.02.1993 at Matunga Police Station. In fact, in the additional statements in para-16, this fact has been admitted that Sri Govind Prasad Sharma has not reported for work since February 1993, as a result, on compassionate basis, the applicant had filed an application for compassionate appointment and in para-14, it has been admitted that as per the record of the office, police was informed that Sri Govind Prasad Sharma is missing since 19.02.1993.
13. When factum of marriage has not been disputed and when the employer has admitted this fact that they had intimation of Sri Govind Prasad Sharma being missing in the form of a police report which was available on their record, then this Court is required to, in addition to the framed substantial question of law, examine that whether the courts below committed an error in dismissing the suit filed by the plaintiff by which the relief under Section 108 of the Evidence Act for declaration that Sri Govind Prasad Sharma is not alive by virtue of the lapse of period of seven years from the date of his disappearance on the ground that the date of death was not specified and that the plaintiff had not discharged the burden of publishing the notice against the public at large can be sustained as per the final decree.
14. Sections 107 and 108 of the Evidence Act deals with the burden of proving the death of person known to alive within 30 years. Similarly, Section 108 provides that whether a person is alive or dead can be determined when it is proved that he is not been heard for seven years by those who would naturally have heard of him as if he had been alive, the burden of proving that he is alive is shifted to the person who affirms it. Therefore, it is apparent that requirement of Section 107 was fulfilled inasmuch as there is an admission of the defendant nos. 1 and 2 to the effect that in February 1993, Sri Govind Prasad Sharma had travelled to Mumbai and on that date before he left to Mumbai, he was seen alive. Similarly, there is an admission of defendant nos. 1 and 2 that Sri Govind Prasad Sharma did not report to work since 19.02.1993 and therefore, requirements of Section 108 were fulfilled.
15. In fact, the interpretation of Sections 107 and 108 of the Evidence Act is no more res integra in view of the decision of Hon'ble Supreme Court in case of L.I.C. of India vs. Anuradha as reported in AIR 2004 SC 2070, wherein it has been held that " the law as to presumption of death remains somewhere in common law in 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 continued 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 person is dead on him who affirms the fact. Section 108 subject to its applicability been attracted, has the effect of shifting the burden of proof back on the one who asserts the fact 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 a 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 by expiry of six years and 364 days or any time sought by it."
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 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.
19. Accordingly, Second Appeal No. 192 of 2007 is allowed. Impugned judgment and decree dated 06.11.2006 passed by learned Additional District Judge, Court No. 5, Jhansi in Civil Appeal No. 90 of 2005 (Smt. Alka Sharma vs. Union of India and others) and judgment and decree passed by learned Civil Judge (Senior Division) in Original Suit No. 380 of 2002 vide judgment and decree dated 05.05.2005 are set aside.
20. There shall be a decree to the effect that "if is declared that the husband of the plaintiff namely, Sri Govind Prasad Sharma son of Late Devendra Prasad Sharma who was employed in the Office of D.R.M., Jhansi Division, Jhansi is dead and his death is civil death as he is missing from 09.02.1993 is not heard of till the date of filing of the application in 2002. It is directed that the competent authority issue a death certificate on the basis of declaration issued in favour of the appellant." No order as to cost. Accordingly, decree be drawn in favour of the appellant.
Order Date :- 17.1.2020 Vikram/-