Delhi District Court
Smt. Kiran Sharma vs The State (Govt. Of Nct) Of Delhi on 16 March, 2015
In the Court of Shri Naresh Kumar Laka
Senior Civil Judge-cum-Rent Controller
District Shahdara, Karkardooma Courts, Delhi
CS. No. 19/13
Unique ID No. 02402C0074472013
Smt. Kiran Sharma
W/o Sh. Harish Kumar Sharma
R/o 10/127, Vishwas Nagar,
Shahdara, Delhi 110032
..... Plaintiff
Versus
1. The State (Govt. of NCT) of Delhi
Through its secretary
Secretariat, ITO,
New Delhi
2. Station House Officer
Police Station-Farsh Bazar
Delhi
3. EMCD
Through its commissioner
Vishwas Nagar, Shahdara, Delhi
Near Appointment Exchange
4. Sub Divisional Magistrate (East)
SDM Office, Geeta Colony, Delhi
..... Defendants
Date of institution of suit : 11.03.2013
Judgment reserved on : 10.03.2015
Date of Judgment : 16.03.2015
Final Order : Suit decreed.
Suit for declaration
JUDGMENT
Brief Facts: Present case is filed by the plaintiff against the CS No. : 19/13 Page No. 1 of 5 Kiran Sharma Vs. State (NCT of Delhi) & Ors.
defendants thereby alleging that she is the wife of Sh. Harish Kumar Sharma S/o Late Sh. Om Prakash Sharma R/o 10/127, Vishwas Nagar, Shahdara, Delhi 32 and on 09.04.1999, the husband of the plaintiff left the house without any information. After making all efforts when he was not found, a missing report was also lodged vide DD No. 13-A dated 10.04.1999 in PS Vivek Vihar in this regard. It is further alleged that the husband of the plaintiff has been missing for the last 14 years and even a public notice was also circulated in respect of missing of her husband by way of pamphlet on 29.04.1999. It is further alleged that the plaintiff approached the defendants for issuance of a death certificate of her husband but the defendant no. 3 refused to do so. Hence present suit.
2. Summons of the suit were sent to all the defendants but defendants no. 1 & 4 failed to appear despite service.
3. Defendants no. 2 & 3 filed their separate written statements. The defendant no. 2 partly admitted the case of the plaintiff whereas the defendant no. 3 contested this case. It is also alleged that the defendant no. 3 is not the necessary party in the present suit and the present suit is not maintainable as no statutory notice under Section 478 of DMC Act has been served upon the defendant no. 3.
4. During the course of trial when the defendant no. 1, 2 & 4 stopped appearing in this case, they were proceeded ex-parte CS No. : 19/13 Page No. 2 of 5 Kiran Sharma Vs. State (NCT of Delhi) & Ors.
vide order dated 04.03.2014.
5. In order to prove her case, the plaintiff examined herself as PW1 and relied on the document Ex. PW1/A to Ex. PW1/D. She also examined Ct. Naveen Kumar as PW2 who produced the documents Ex. PW2/A & PW2/B. No other witness was examined.
6. I have heard Sh. Rajeev Kumar, learned counsel for plaintiff and Sh. Vishwajeet Mangla, learned counsel for defendant no. 3. File perused.
REASONS FOR DECISION
7. In the affidavit tendered in evidence, PW1 Smt. Kiran Sharma reiterated and reaffirmed the averments of the plaint. The defendant no. 3 only contested this case. In the written statement filed on behalf of defendant no. 2, there is no denial to the claim of the plaintiff towards missing of her husband rather in para no. 4 of the reply/WS, it is pointed out that on an inquiry conducted by field staff of Sub Division, on the basis of statement of two witness it was found that Sh. Harish Kumar Sharma was missing from 09.04.1999.
8. The counsel for defendant no. 3 argued that the plaintiff did not approach first to the defendant no. 3 for issuance of death certificate as there is no application on record and as such there is no cause of action for filing the present case against defendant no.
3. In this regard, the plaintiff specifically deposed in her cross CS No. : 19/13 Page No. 3 of 5 Kiran Sharma Vs. State (NCT of Delhi) & Ors.
examination that she has filed an application but the same was not entertained in the office of MCD and she was directed to approach the court of law. I also find substance in the arguments of counsel for plaintiff that in the absence of proof of death, the application/request of the plaintiff could not be entertained by the defendant no. 3. Even filing of this case is also itself a notice to the defendant no. 3 seeking the relief of issuance of death certificate of her husband by the plaintiff. Accordingly I hold that the cause of action exists and survives on each day as the right of the plaintiff to seek declaration of death of her husband is a continuing cause of action.
9. The PW2 Ct. Naveen Kumar proved the missing report of Sh. Harish Kumar Sharma S/o Late Sh. Om Prakash Sharma R/o 10/127, 18 Quarters, Vishwakarma Nagar, Shahdara, Delhi 32 vide DD No. 13A dated 10.04.1999. It is also admitted in the written statement filed by defendant no. 2 that the missing person could not be traced despite making every efforts like flashing and publishing hue & cry notices in newspaper, uploading the information on Zipnet & Information given to NCRB, SCRB etc.
10. In the affidavit, the plaintiff specifically disclosed that her husband has been missing for the last more than 14 years and he has not been heard or seen by anyone during such period. Even there is a presumption U/s 108 of the Indian Evidence Act to the effect that when a man is alleged to be alive or dead and if it is CS No. : 19/13 Page No. 4 of 5 Kiran Sharma Vs. State (NCT of Delhi) & Ors.
proved that he has not been heard of for seven years by those who would naturally have heard of him if he had been alive, the burden of proving that he is alive is shifted to the person who affirms it. In the instant case, there is no rebuttal from the side of defendant in terms of said provision.
11. No evidence has been led by any of the defendants that they have any doubt about the missing of the husband of the plaintiff as claimed by her or that anyone has seen him or heard of him during the period of last 14 years from the date of his missing. Resultantly, I hold that the plaintiff proved her case. Accordingly the suit of the plaintiff is decreed to the effect that her husband namely Sh. Harish Kumar Sharma S/o Late Sh. Om Prakash Sharma R/o 10/127, Vishwas Nagar, Shahdara, Delhi 32 is declared dead and the defendants are directed to issue death certificate as per the existing rules on payment of the required fees, if any. Decree sheet be prepared accordingly. There is no order as to costs. File be consigned to record room.
Announced in the open court on 16.03.2015 (Naresh Kumar Laka) Senior Civil Judge -cum-Rent Controller Shahdara, KKD Court/16.03.2015 CS No. : 19/13 Page No. 5 of 5 Kiran Sharma Vs. State (NCT of Delhi) & Ors.