Legal Document View

Unlock Advanced Research with PRISMAI

Integrated with over 4 crore judgments and laws — designed for legal practitioners, researchers, students and institutions

- Know your Kanoon - Doc Gen Hub - Counter Argument - Case Predict AI - Talk with IK Doc - ...
Upgrade to Premium
[Cites 2, Cited by 0]

Delhi District Court

Smt. Omwati Sinsinwar vs State Govt. Of Nct Of Delhi & Ors on 4 December, 2014

        IN THE COURT OF MS. KADAMBARI AWASTHI CJ ­02
             (CENTRAL),TIS HAZARI COURTS, DELHI

Suit No  :  267/14


IN THE MATTER OF:­
SMT. OMWATI SINSINWAR                                                        .....PLAINTIFF
                                          VERSUS
STATE GOVT. OF NCT OF DELHI & ORS.                                .....DEFENDANTS


SMT. OMWATI SINSINWAR 
W/O LATE SHRI OM PARKASH SINSINWAR
R/O OLD ADD: L­587, SCHOOL BLOCK 
SHAKARPUR, DELHI. 92
NOW AT 694, GALI NO. 4
SOUTH GANESH NAGAR,
DELHI. 110092                                                         ......PLAINTIFF

                                             VERSUS


   1. STATE GOVT. OF N.C.T. DELHI
      THROUGH ITS CHIEF SECRETARY
      DELHI SECRETARIAT, I.P. ESTATE,
      NEW DELHI. 110002

   2. THE GENERAL MANAGER 
      MAHANAGAR TELEPHONE NIGAM LTD.
      KHURSHEED LAL BHAWAN,
      NEW DELHI.

   3. COMMUNICATION ACCOUNTS OFFICER 
      (PENSION)
      OFFICE OF PRINCIPAL CONTROLLER OF 
      COMMUNICATION ACCOUNTS
      DOT BUILDING, PRASAD NAGAR, 
      NEW DELHI.                                               ...... DEFENDANTS


Suit No. 267/14                                                          Page 1 of 18
                            Date of Institution:­              13.12.2011
                           Date of reserving the judgment:­   27.11.2014
                           Date of Judgment:­                 04.12.2014



                                   JUDGMENT

BY THIS JUDGMENT, I SHALL DISPOSE A SUIT FOR DECLARATION, AS PER THE PLAINT THE FACT GERMANE TO THE CASE ARE AS UNDER:­ 1.1. It is submitted that the plaintiff is the legally wedded wife of Sh. Om Parkash Sinsinwar S/o Sh. Sukhram Sinsinwar resident of H. No. 16/846, Bapa Nagar, Karol Bagh, New Delhi. 110005. It is stated that the plaintiffs husband Sh. Om Parkash Sinsinwar was aged about 60 years. He was employed with the defendant no. 2 and was retired from the employment of Mahanagar Telephone Nigam Ltd. The plaintiff being legally entitled as wife of Sh. Om Prakash Sinsinwar has been receiving the pension from the defendant no. 2.

1.2. It is submitted that since 28.02.2003 the husband of the plaintiff Sh. Om Prakash Sinsinwar has been missing and since then his whereabouts are not known to anyone. It is submitted that the plaintiff lodged a report vide complaint no. 149/ PL dated 02.03.2003 with the defendant no. 3. But after all efforts Suit No. 267/14 Page 2 of 18 and searches the plaintiffs husband could not be traced out. Lastly, the police of P.S. Prasad Nagar i.e. defendant no. 3 has given an untraced report dated 04.04.2006 that after investigation by the police the whereabouts of Sh. Om parkash Sinsinwar are not known.

1.3. It is submitted that the plaintiff and the entire family, relations, friends etc searched Sh. Om Parkash Sinsinwar everywhere in Delhi and outside Delhi, but till date his whereabouts has not been heard of from anywhere.

1.4. It is submitted that the plaintiff has although been given the pension benefits alongwith other benefits of Sh. Om Parkash Sinsinwar by the defendant no.2. It is further stated that thus the plaintiffs husband is reportedly missing since 28.02.2003 and over a period of 8­1/2 years have passed and no one has seen or heard about him anywhere.

1.5. It is submitted that since the law presume that a missing person, whose whereabouts are not known since last seven years shall be presumed to be dead, therefore, the plaintiff's husband Sh. Om Prakash Sinsinwar is also required to be presumed and declared as dead.

Suit No. 267/14 Page 3 of 18

1.6. It is also submitted that the plaintiff approached the defendant No. 1's concerned office of Registrar, Birth & Death for issuing of death certificate of her husband, but the said request was declined by the said office of the defendant No. 1 and asked the plaintiff to get a decree of declaration from the competent court of law in this regard. The plaintiff has also received a letter vide Ref. No. AO (Pen)/ OPS/CL­2213/ Feb.2001/80 dated 21.10.2011 form the Deputy Manager ( Pension), Mahanagar Telephone Nigam Ltd. Demanding the proof of death or decree of the Court. Hence this suit.

1.7. It is submitted that the plaintiff being the immediate relative as being wife of Sh. Om Parkash Sinsinwar is competent and entitled to institute the present suit. It is submitted that as per the letter No. 2­4/PC­16146/2006/ Pen dated 12.10.2011 issued by the defendant No.4, the plaintiff is legally entitled to the family pension being the widow of Sh. Om Prakash Sinsinwar and the plaintiff has already completed all the formalities for the same.

1.8. It is also stated that the cause of action for filing the present suit arose in favour of the plaintiff and against the defendants, firstly when the plaintiff's husband Sh. Om Parkash Sinsinwar went missing on 28.02.2003 and since then his whereabouts are Suit No. 267/14 Page 4 of 18 not known to anyone. The cause of action further arose when the plaintiff lodged the complaint no. 149/PL dated 02.03.2003 with the police of PS Prasad Nagar, New Delhi. The cause of action further arose when the period of seven years completed on 28.02.2010 and the police given untraced report dated 04.04.2006 and the whereabouts of the plaintiff's husband has not been heard so far. The cause of action further arose when the plaintiff approached the defendant No. 1 for issuing of the death certificate of her husband. The cause of action is still subsisting.

2. Defendant was served and filed written statement taking preliminary objection to the effect that the present suit is not maintainable for non rejoinder and mis joinder of necessary party. The plaintiff has not impleaded the necesssary party CCA, Department of Telecommunication, for adjudication of the suit. Hence, the present suit is not maintainable against the answering defendant no. 2.

2.1. It is submitted that the present suit has been filed without any cause of action against the defendant. The husband of the plaintif was working with the answering defendant as D.O.T. employee on demand deputation and retired on superannuation on 28.02.2001 as D.O.T employee. The pension benefit had been Suit No. 267/14 Page 5 of 18 paid by the CCA, D.O.T which is independent from the answering defendant and no concern with the answering defendant. Hence the present suit is not maintainable against the answering defendant and liable to be dismissed on this ground alone.

2.2 It is submitted that the contents of para 2 under reply to the suit are false, misconceived, wrong and denied. It is wrong and denied that the husband of the plaintiff was employed with the defendant no. 2 and plaintiff is legally entitled to receive the pension benefit from the defendant no. 2. It is also submitted that the plaintiffs husband was employee of the Department of Telecommunication ( D.O.T .) and he was working in the office of the defendant no. 2 on deputation and retired on superannuation on 28.02.2001. The defendant accordingly processed the pension benefit file and sent it to the CCA, D.O.T., Prasad Nagar, D.T.O. Building, New Delhi who will be making the payment to the beneficiary. The letter bearing No. 2­4/PC­16196/FPPO­2512/2007/Pen dated 18.09.2007.

2.3. It is wrong and denied that the defendant has been given the pension benefits to the plaintiff. It is stated that the pension benefits are being paid by the CCA, D.O.T., Prasad Nagar, D.T.O. Suit No. 267/14 Page 6 of 18 Building, New Delhi.

2.4. It is submitted that the defendant sent letter dated 21.10.2011 in response of the letter bearing no. 2­4/PC­16146/2006/pen dated 12.10.2011 issued by D.O.T., D.T.O. Building, Prasad Nagar, New Delhi who required information from the plaintiff for settling the outstanding family pensionary benefits. The letter bearing No. 2­4/PC­16146/2006/Pen dated 12.10.2011.

2.5. It is submitted that the present suit as framed and filed is a gross abuse and misuse of the process of law and legal machinery, hence the petition / suit is liable to be dismissed with costs.

2.6. It is submitted that the family pension case of Sh. Om Parkash Sinsinwar, Ex. UDC provisionally retired on 28.2.2001 and whose whereabouts were not known w.e.f. 07.08.1998 and the information in this regard has been received in this office on 28.04.2006. As per affidavit submitted by Smt. Omwati­ Plaintiff W/o Sh. Om Parkash Sinsinwar, Ex. UDC stated that her husband is missing since 07.08.1998 and lodged complaint regarding missing in Prasad Nagar Police Station, New Delhi after passing of more than 4 years. As per pension rules, in case of missing Suit No. 267/14 Page 7 of 18 employee case, the admissibility of family pension will accrue from the date of lodging of FIR i.e. 02.03.2003. In between the official was also reached to the stage of superannuation on 28.02.2001. This office has already authorized Normal Family Pension to the plaintiff Smt. Omwati Sinsinwar w/o Om Prakash Sinsinwar, Ex. UDC w.e.f. 01.03.2001 i.e. from the following date of superannuation of Sh. Om Prakash Sinsinwar, Ex. UDC from Canara Bank, Connaught Place, New Delhi. DCRG amount Rs. 97,812/­ had also been paid to Smt. Omwati Sinsinwar­plaintiff vide letter No. 2­4/PC­16196/DCRGPO­15046/2007/Pen dated 09.04.2007.

2.7. It is also submitted that the plaintiff again requested this department to release her outstanding pensioner benefit i.e. family pension at enhanced rate vide her letter dated 08.08.2011 received through Dy. Manager (Pension) MTNL vide letter dated 23.08.2011. In reply a letter has been addressed to the Dy. Manager (Pension), MTNL, E/Court, New Delhi and the plaintiff vide letter No. 2­4/PC­16146/2006/Pen dated 12.10.2011 wherein it was informed that outstanding pensionary benefit will only be released after submission of the following documents:­

a) An affidavit that family pensioner is not remarried

b) Produce proper and indisputable proof of death or decree of the court as laid down in section 108 of the Indian Evidence Act Suit No. 267/14 Page 8 of 18 in respect of Sh. Om Prakash Sinsinwar, Ex. UDC.

c) Service Book and last pay certificate.

d) Outstanding dues and Disc/Vig. Clearance regarding charge­ sheeted under Rule­14 of the CCS (CC & A) Rules, 1965 on 18.03.1987.

3. In reply on merit it is submitted that as per affidavit submitted by the plaintiff that her husband is missing since 07.08.1998 and lodged complaint regarding missing on 02.03.2003 in Prasad Nagar, Police Station, New Delhi, after passing of more than 4 years.

3.1. It is submitted that the answering defendant has already authorized normal family pension to the plaintiff w.e.f. 01.03.2001 i.e. from the following date of superannuation of Sh. Om Parkash Sinsinwar, Ex. UDC Canara Bank, Connaught Place, New Delhi. It is further submitted that DCRG amount Rs. 97,812/­ has also been paid to the plaintiff vide our letter No. 2­4/PC­16196/DCRGPO­15046/2007/Pen dated 09.04.2007.

3.2. It is submitted that as per affidavit failed by the plaintiff stated that her husband is missing since 07.08.1998 and lodged complaint regarding missing on 02.03.2003 in Prasad Nagar Police Station, New Delhi.

Suit No. 267/14 Page 9 of 18

3.3. It is submitted that the contents of para no. 8, 9 & 10 of the plaint are matter of record & not disputed. However, no cause of action arose against the defendant as alleged.

3.4. A prayer is made to dismissed the suit of the plaintiff with exemplary costs, in view of the the facts and circumstances of the case.

4. Replication to the WS has been filed by the plaintiff where the averment and assertion made in the WS are denied in toto and the content and stand by the plaintiff in her plaint is reaffermed and reiterated.

5. Vide order dated 17.07.2012 the following issues were submitted by the Ld. Predecessor:­

1) Whether the suit is bad for non­joinder and mis­joinder of necessary party? OPD

2) Whether suit of the plaintiff is without any cause of action? OPD

3) Whether suit of the plaintiff is not maintainable in the present form? OPD

4) Whether plaintiff is guilty of suppression and concealment of material facts from this court? OPD Suit No. 267/14 Page 10 of 18

5) Whether plaintiff is entitled for decree of declaration as prayed? OPP (Reframed vide order dt. 12.12.2012)

6) Whether plaintiff has valued the present suit properly for the purpose of court fees and jurisdiction? OPP

7) Relief.

5.1. Vide oder dt. 12.12.2012 the plaintiff was allowed to dropped the relief of mandatory injunction firm the prayer clause & also deleted defendant no.3 from array of parties. According Issue No. 5 earlier framed, vide order dated 13.08.2012 stand reframed in light of these developments by the order of even date.

5.2 In support of her case plaintiff examine herself as PW­1 ASI Vijay Pal Singh examined as PW­2 & Sh. Anil Kumar Gupta examined as PW­3, where Sunder Lal Sharma examined as PW­4 from MTNL PW­1 placed reliance on Ex. PW­1/B Ex. PW­1/C. In her cross examination by defendant No.4, she deposed on oath that her husband went missing since 1998 & she lodged a complaint with police regarding his missing in the year 2003. She claimed that they kept searching her husband for about four year & then lodged a complaint, thereafter. She also claimed to have recovered the family pension from pension Department of Sh. Om Parkash Sinsinwar since 2007, & also has got the arrears of pension w.e.f. 01.03.2001 & received the same in the year 2007.

Suit No. 267/14 Page 11 of 18

She claimed to come to court for getting the enhanced pension.

5.3. PW­2 ASI Vijay Pal Singh proved PW1/1 which the untrace report of Sh. Om Parkash Sinsinwar it is deposed that as per record the complaint report registered up to 21.12.2008 has been destroyed & Ex. PW3/1, PW3/2 and PW3/3 which are letter dt. 12.10.2011 by A/C Officer (pension) to the Dy. Manager Pension C/o to plaintiff & another letter dated 09.04.2007 written by Account Officer to the communication A/C. A letter dated 18.09.2007 written by Account Officer (pension) to the Manager Canara Bank PW3/3 is also proved. PW3 further deposed as per FIR Sh. Om Parkash Sinsinwar went missing since 07.08.1998 & FIR/complaint dated 02.03.2003.

5.4. PW4 was a summoned witness from MTNL Delhi, who proved Ex. PW4/1 as per record it was deposed that Sh. Om Parkash Sinsinwar was working as TOA(G) CL 2213, was appointed as LDC on 10.05.1965 & lastly working till 17.06.1976. No PW/witness were cross examine despite opportunity by the defendant except PW­1.

No DE was lead by the defendant despite opportunity & according same was closed by order dt. 28.08.2014.

Suit No. 267/14 Page 12 of 18

6. Finding on Issue No. 1 to 4:­

1) Whether the suit is bad for non­joinder and mis­joinder of necessary party? OPD

2) Whether suit of the plaintiff is without any cause of action? OPD

3) Whether suit of the plaintiff is not maintainable in the present form? OPD

4) Whether plaintiff is guilty of suppression and concealment of material facts from this court? OPD 6.1. Onus to prove these issue was cast upon the defendant. However, as far the objection with regard to the suit being bad for non joinder & mis joinder the parties, no cause of action for filing the suit, or being not maintainable & the plaintiff guilty of suppression & concealment are concerned not even a single suggestion has been given to the plaintiff & other PW's by the defendants, for the reason, best known to them what to say of direct question being put to them.

6.2. These objection raised by the defendant remain ornamental & proved nothing but bald assertion made in the written statement. The primary onus was never discharged by the defendant. No evidence was lead on behalf of the defendants despite ample opportunity.

Suit No. 267/14 Page 13 of 18

6.3. Hence, these issues are decided in favour of the plaintiff against defendant.

7. Finding on Issue No. 5:­

5) Whether plaintiff is entitled for decree of declaration as prayed? OPP (Reframed vide order dt. 12.12.2012) 7.1. Onus to prove the issue was cast upon the plaintiff, the plaintiff has came up with the plea that her husband went missing since 07.08.1998 & despite efforts the same could not be traced, it has been claimed by the PW­1 that she has lodged a compliant in the P.S. Prasad Nagar on 02.03.2003 regarding missing for her husband. Though the said complaint was not brought on record but summoned witness PW­2 ASI Vijay Singh proved the untraced report of the Sh. Om Parkash Sinsinwar where investigation initiated on the basis of said complained which was being destroyed vide order No. 4303­45/ Gen. (Record)/C dt. 09.02.2013.

7.2. As per the pension rule applicable to Sh. Om Parkash Sinsinwar, his family pension was started by the Account Officer(Pension) as he was provisionally retired from the service with effect from 28.02.2001 on attaining the age of Suit No. 267/14 Page 14 of 18 superannuation Ex. PW3/3 & Ex. PW4/1, PW3, PW4 were also summoned witness from the department concerned.

7.3. However, it is matter of record that the summoned witness were not subjected to cross examination by the defendants.

7.4. As per the mandate of Section 108 of the Indian Evidence Act it is established law of the land that, where a person has not been heard of for seven years when a suit is instituted Section 108 comes into operation & raised a presumption on that at the institution of the suit,he was dead but that no presumption arise is as to the date of their death, which has to be prove by the party whose claims depends upon him the same way as anyother relevant fact in the case.

7.5. In AIR 1957 AP, it has been held that the presumption therefore can be that a man is not alive by the date of the institution of the suit but to say that a presumption can be made that he is dead on that date may not be the correct way stating the rule. No particular point of time of death of a person could be predicted the mere circumstances of his not being heard for a period of seven years or more.

7.6. Section 108 is a proviso to Section 107 of the Act which lays Suit No. 267/14 Page 15 of 18 down that when a man is shown to be alive with in thirty years, the burden of proving that he is dead is on the person who affirms it but under Section 108 the matter stands otherwise & it deals with a presumption for a person, who has not been heard of from seven years by those who would naturally have heard of him, if he has been alive accordingly to this provision the burden to prove that he is alive shifts to the person who affirms it.

7.7. In catena of cases it has been held that such person in absence of the proof of the exact date about the death shall be deemed that he is not alive on the day when the dispute arose about the death of the man & it has been brought for adjudication to the court of law.

7.8. In Ram Pal Vs. Ram Niwas, the Hon'ble High Court of Rajasthan came to the conclusion that where a party relies on a specific date of death of a person, who has not been heard of for seven years or more, he must prove the specific date of death has been proved the earliest date on which it can be presumed that such a person was not alive shall be the date on which the suit was filed & it cannot be given a further retrospective effect.

7.9. In the present case, the defendant failed to discharged the Suit No. 267/14 Page 16 of 18 burden, the testimony of PW­1 & other PW's remain unrebutted and unchallenged. However, keeping in view the above deliberation & judicial precedent sited, the accurate date of death of Sh. Om Parkash can not be presumed, neither any ocular or documentary record has been bring forth before the court to prove a date. Hence, in absence of any such evidence, it can be presumed from the material placed on record that Sh. Om Parkash Sinsinwar was not alive on 13.12.2011, when the suit for declaration has been instituted.

Accordingly, the issue is decided in favour of plaintiff against defendant.

8. Finding on Issue No. 6:­

6) Whether plaintiff has valued the present suit properly for the purpose of court fees and jurisdiction? OPP 8.1. The onus to prove the issue was on the plaintiff. However, not even single suggestions was put to the witness with respect to the valuation of the suit during cross examination. What to ask of direct questions. It is also matter of record that no DE was lead despite opportunity, hence, there is no evidence on record to rebut the claim of plaintiff with respect to the valuation of the suit.

8.2 Keeping in view the same in absence of any contrary evidence to rebut the claim of plaintiff the valuation of the suit as Suit No. 267/14 Page 17 of 18 done by the plaintiff is deem correct and appropriate. Issue decided accordingly.

9. Relief:­ The suit of plaintiff is decreed. It is declared that Sh. Om Parkash Sinsinwar was not alive on 13.12.2011 on the date when the present suit was instituted for seeking the declaration of his death.

Parties are left to bear their own costs.

Decree sheet be drawn, file be consigned to record room after due compliance.

Announced in Open Court (KADAMBARI AWASTHI) today i.e. 04.12.2014 Civil Judge­02/Central Tis Hazari Courts : Delhi Suit No. 267/14 Page 18 of 18