Delhi District Court
Smt. Madhu (Wife) vs Civil Suit No: 1221/2021 Madhu & Ors. Vs. ... on 2 February, 2023
IN THE COURT OF ADDL. SENIOR CIVIL JUDGE,
DISTRICT SHAHDARA, KARKARDOOMA COURTS,
DELHI.
Presided by: Mr. Himanshu Raman Singh
Civil Suit No: 1221/2021
1. Smt. Madhu (Wife)
Wife of Shri Mukesh Kumar
R/o House No. D-630,
Gali No. 1, D-Block,
Ashok Nagar,
Delhi-110093.
2. Mr. Sunny
Son of Shri Mukesh Kumar,
R/o House No. D-630,
Gali No. 1, D-Block,
Ashok Nagar, Delhi-110093.
3. Mr. Sandeep
Son of Shri Mukesh Kumar,
R/o House No. D-630,
Gali No. 1, D-Block,
Ashok Nagar, Delhi-110093.
4. Mr. Pradeep
Son of Shri Mukesh Kumar
R/o House No. D-630,
Gali No. 1, D-Block,
Ashok Nagar, Delhi-110093.
5. Ms. Sonam
Daughter of Mukesh Kumar
R/o House No. D-630,
Gali No. 1, D-Block,
Ashok Nagar, Delhi-110093.
.... Plaintiffs
Versus
Civil Suit No: 1221/2021 Madhu & Ors. Vs. The State & Ors. Page 1 of 14
1. The State
Through its Secretary Home,
Government of National Capital Territory
Delhi.
2. East Delhi Municipal
Corporation of Delhi.
Through its Commissioner,
Institutional Area,
Patparganj, Delhi.
3. The S. D. M.
Seema Puri,
Weaver Complex, Nand Nagri,
Delhi-110093.
4. Station House Officer
of Police Station Welcome,
Delhi.
... Defendants
SUIT FOR DECLARATION AND MANDATORY
INJUNCTION
Date of Filing : 04.12.2021.
Date of Judgment : 02.02.2023.
JUDGMENT
1. The brief facts as narrated by the Plaintiffs are as under:
1.1 Plaintiffs have stated that all Plaintiffs are residing at the above mentioned address i.e. House No. D-630, Gali No. 1, D-Block, Ashok Nagar, Delhi-110093. Plaintiff No. 1 is wife, Civil Suit No: 1221/2021 Madhu & Ors. Vs. The State & Ors. Page 2 of 14 Plaintiff No. 2 to 5 are sons and daughter of missing Shri Mukesh Kumar @ Mukesh. Plaintiff Nos. 2 to 5 are unmarried.
1.2. Plaintiffs have further stated that husband of Plaintiff No. 1 and father of the Plaintiff No. 2 to 5 was working in Delhi Municipal Corporation at Sadar, Paharganj Zone, Delhi in Department of Slaughter House as S.K./S.P. Zone, Slaughter House and he was posted at Hindu Rao Hospital, Delhi. Plaintiffs have stated that Shri Mukesh Kumar @ Mukesh was residing with his family at D-630, Gali No. 1, D-Block, Ashok Nagar, Delhi-110093.
1.3. Plaintiffs have stated that on 16.12.2010, Shri Mukesh Kumar @ Mukesh was gone to his mother's house at WS-51, Gali No. 10, Sudama Puri, Babarpur, North East, Delhi-
110032 as he often used to visit his mother's house and since then Shri Mukesh Kumar @ Mukesh has been missing. Plaintiffs have stated that Plaintiff No. 1 was searching and asked about her husband from each and every relatives but Shri Mukesh Kumar @ Mukesh could not be found.
1.4. Plaintiffs have stated that a missing report was made to the Police Station Welcome, Delhi, Nand Nagri, Delhi and other police authority vide DD No. 19A dated 23.12.2010. Plaintiffs time to time approached the concerned Police Station and other higher police authority with regard to obtaining Civil Suit No: 1221/2021 Madhu & Ors. Vs. The State & Ors. Page 3 of 14 missing report of Shri Mukesh Kumar @ Mukesh and also made a complaint dated 21.11.2022 and 20.09.2018.
1.5. Plaintiffs have stated that Plaintiffs visited the office of Executive Magistrate/Tehsildar/Seema Puri, District Shahdara, D.C. Complex Nand Nagri, Delhi-110093 and requested him to issue death order of missing person namely Shri Mukesh Kumar @ Mukesh, but the said they refused. Plaintiffs have stated that Plaintiffs also visited the office of Defendant/MCD to get Death Certificate, but the MCD denied for the same and advised the Plaintiffs to approach the concerned court for the Declaration of missing person namely Shri Mukesh Kumar @ Mukesh as dead and to give direction to the MCD for issuance of Death Certificate of the said missing person.
1.6. Plaintiffs have prayed for issuance of Decree of Declaration thereby declaring husband of the Plaintiff No. 1 and father of Plaintiff Nos. 2 to 5, namely Shri Mukesh Kumar @ Mukesh be presumed to have died and also prayed for issuance of Decree of Mandatory Injunction thereby directing the Defendants to issue Death Certificate of missing person namely Shri Mukesh Kumar @ Mukesh as per law.
2. Defendant No. 2 filed a Written Statement and took preliminary objection stating that the suit of the Plaintiffs are barred by the provisions of Section 477 and 478 of the DMC Act, Civil Suit No: 1221/2021 Madhu & Ors. Vs. The State & Ors. Page 4 of 14 1957 as Plaintiffs did not serve the statutory notice upon the Defendant prior to filing the present suit and also stated that the no cause of action ever arose against the Defendant and hence, the suit is liable to be dismissed. Defendant has denied most of the averments, content, allegations raised in the plaint by the Plaintiff. Defendant further stated the Plaintiff has not come with clean hand and suppressed the material facts and also stated that the Defendant is under statutory obligation to register the Birth and Death of the citizen under the various provision of Birth and Death Registration Act, 1969. Defendant further added that death of a missing person could only the registered after obtaining the declaratory decree from the Court of Law. Defendant lastly stated that the Plaintiff did not make sincere efforts to trace out her husband to various means. Defendant also stated that prayer of the plaint is wrong, false and is not maintainable in the eyes of law. Defendant has prayed for dismissal of the present suit.
3. Replication on Written Statement was filed by the Plaintiffs and took preliminary objection stating that Section 477 of the MCD Act, 1957 is not applicable in this case, as it has a provision to protect the MCD form any act done against the public as it is a tool to be used in defence and protects the officer against any issues complaint, grievance and any matter of law raised by any public person, who is affected and victim against the any act done by the said Corporation, employee and its officers. Plaintiffs have stated that Plaintiff have visited many Civil Suit No: 1221/2021 Madhu & Ors. Vs. The State & Ors. Page 5 of 14 times to the office of Defendant No. 2 and made requests verbally and written for releasing the pension of Plaintiff No. 1 but Defendant No. 2 has always asked to submit Death Certificate of the missing person namely Shri Mukesh Kumar @ Mukesh. Plaintiff visited Defendant No. 2 in Hindu Rao Hospital on 20.09.2018 and gave a written letter to them. They received letter vide their register no. 15464 on 20.09.2018. Defendant No. 2 had issued a letter to Plaintiffs dated 10.09.2018 reference noo. NC/HRH/2018/5776. Defendant No. 2 also issued a letter to Plaintiffs dated 04.05.2022 therewith it desired to submit the Death Certificate of the said missing person to enable them to release the pension to Plaintiff No. 2. Plaintiffs have further denied suit is barred by the provisions of DMC Act, 1957. Plaintiffs have denied the averments, allegations, and content made by Defendant in the Written Statement as false and wrong.
3. Summons of the suit were issued to the Defendants and the same were returned back duly served. From the pleadings of the parties, the following issues were framed:-
(a) Whether Plaintiffs are entitled to Decree of Declaration as prayed for? OPP
(b) Whether the Plaintiffs are entitled to Decree of Mandatory Injunction as prayed for? OPP
(iii) Relief.
4. In order to support their claim, Plaintiffs examined Civil Suit No: 1221/2021 Madhu & Ors. Vs. The State & Ors. Page 6 of 14 Plaintiff No. 1 as PW-1 who tendered her evidence by way of affidavit Ex. PW-1/A. She has relied upon the following documents :-
Mark A : Copy of private publication published by the petitioner regarding searching of missing Mukesh Kumar @ Mukesh.
Mark B : Copy of Missing Report i.e. DD No. 19A dated 23.12.2010.
Mark C : Copy of missing person information dated 23.12.2010.
Mark D : Copy of letter addressed to SHO PS
Welcome.
Mark E : Copy of Identity Card of Late Mukesh
Kumar issued by MCD Department.
Mark F : Copy of letter written to Administrative
Officer, Hindu Rao Hospital.
Mark G : Copy of Aadhaar Card of Pradeep.
Ex. PW1/C : Election Identity Card of Mukesh Kumar.
Ex. PW1/D : Copy of Aadhaar Card of Sunny.
Ex. PW1/E : Copy of Aadhaar Card of Sandeep.
Ex. PW1/G : Copy of Aadhaar Card of Madhu.
Ex. PW1/H : Copy of Aadhaar Card of Sonam.
5. Thereafter, PW-1 was cross-examined by ALO for the Defendant No. 2/MCD. Then, PE was closed vide order dated Civil Suit No: 1221/2021 Madhu & Ors. Vs. The State & Ors. Page 7 of 14 02.02.2023.
6. Further to prove the case, Plaintiffs examined Head Constable Shri Yogesh Bhati, MHCR, Welcome, No. 2802/NE as PW-2 who has relied upon the following documents:-
Mark A : Missing report of Shri Mukesh Kumar under DD No. 19A dated 23.12.2010.
Mark B : I have also brought the photocopy of record destroyed Order No. 42020- 42119 dated 17.12.2019/HAR/NED in which missing register up to 31.12.2015 has been destroyed. (colly 2 pages)
7. Thereafter, PW-2 was cross-examined by ALO for Defendant No.2/MCD. PE was closed vide order dated 02.02.2023. Defendants did not lead any defence evidence despite opportunity. DE was closed on 02.02.2023.
8. I have heard the final arguments and gone through the record carefully. The issue-wise findings are as under:Issue No. 1
(i) Whether Plaintiff is entitled to Decree of Declaration prayed for? OPP Civil Suit No: 1221/2021 Madhu & Ors. Vs. The State & Ors. Page 8 of 14
6. Onus to prove this issue was on the Plaintiffs.
Before proceeding further, it would be appropriate to recapitulate the law on the subject. It is undisputed that a declaration as to civil death is a declaration as to the status of a person. That said, it can be safely asserted that 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.
7. The grant of Decree of Declaration to declare a 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 if a person 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 upon the person who affirms it.
8. 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 a point 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 Civil Suit No: 1221/2021 Madhu & Ors. Vs. The State & Ors. Page 9 of 14 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.
9. This view is affirmed in LIC of India vs. Anuradha, AIR 2004. SC 2070 wherein it was held that:
"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 Civil Suit No: 1221/2021 Madhu & Ors. Vs. The State & Ors. Page 10 of 14 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. At what point of time the person was dead is not a matter of presumption but of evidence - factual or circumstantial, and the onus of proving that the death had taken place at any given point of time or date since the disappearance or within the period of seven years lies on the person who stakes the claim, the establishment of which will depend on proof of the date or time of death."
10. Upon the bare perusal of the record, the factum of Shri Mukesh Kumar @ Mukesh, husband of Plaintiff No. 1 and father of Plaintiff Nos. 2 to 5, has been missing since 16.12.2010 is circumstanced. Neither the police officials nor the relatives of the Shri Mukesh Kumar @ Mukesh have been able to gather an inkling about his whereabouts since 16.12.2010. The same is also evident from the material on record. It is noteworthy that there is nothing on record to discredit the version of the Plaintiffs. Their testimony stands uncontroverted and especially so, when the same is substantiated by the narratives and chronicles of the official witnesses.
11. In the instant case, the relationship of the Plaintiffs with the said Shri Mukesh Kumar @ Mukesh has not been disputed. In the natural course of events, it can be reasonably Civil Suit No: 1221/2021 Madhu & Ors. Vs. The State & Ors. Page 11 of 14 expected that the wife and children of a person would hear from him. In the instant case, the Plaintiffs have proven on record that the said Shri Mukesh Kumar @ Mukesh has not been heard of since 16.12.2010. The present suit has been instituted on 04.12.2021 and the unrebutted case of the Plaintiffs is that the husband of the Plaintiff No. 1 and father of Plaintiff Nos. 2 to 5 is missing since 16.12.2010 and has not been heard of since then. It appears that the Plaintiff No. 1's husband and Plaintiff Nos. 2's father has not been heard of or from for seven years prior to the institution of the suit. The Defendants have not discharged the onus of affirming that the husband of the Plaintiff No. 1 and father of Plaintiff Nos. 2 to 5 is alive; in fact, it is not even their case that the Plaintiff No.1's husband and Plaintiff Nos. 2 to 5's father is alive or has been heard of by the Plaintiffs or their family members after 16.12.2010. In these circumstances, a presumption as to the civil death of husband of Plaintiff No. 1 and father of Plaintiff Nos. 2 to 5 has been raised by the Plaintiffs before this court. This presumption has not been rebutted by the Defendants and as such. The Plaintiffs are entitled to a declaration as to the civil death of Shri Mukesh Kumar @ Mukesh. Therefore, Plaintiffs have successfully proved that they are entitled to a declaration that Shri Mukesh Kumar @ Mukesh be declared as presumed dead.
12. In light of the discussion above, the issue stands decided in favour of the Plaintiffs.
Civil Suit No: 1221/2021 Madhu & Ors. Vs. The State & Ors. Page 12 of 14 Issue No. 2(ii) Whether the Plaintiff is entitled to Decree of Mandatory Injunction as prayed for? OPP
13. The onus to prove this issue was on the Plaintiffs. As far as the prayer for issuance of Death Certificate is concerned, nothing has been brought on record on behalf of the MCD to show that Death Certificate cannot be granted without specific date of death being mentioned in such cases where a declaration of civil death has been sought from the court. Even otherwise, it seems prudent that as the declaration of civil death is being granted in respect of the husband of the Plaintiff No. 1 and father of Plaintiff nos. 2 to 5 vide this Judgment itself. The date of this Judgment should be mentioned by the MCD in the Death Certificate to be issued. Therefore, this court does not have any hesitation in decreeing the suit in favour of the Plaintiffs and against the Defendants. The issue stands decided in favour of the Plaintiffs.
(iii) Relief
14. Accordingly, upon the pressing of Section 108 into service amalgamated with the facts on the record, a Decree of Declaration declaring that Shri Mukesh Kumar @ Mukesh, husband of the Plaintiff No. 1 and father of Plaintiff Nos. 2 to 5 succumbed to civil death, is passed. Death Certificate be issued to the Plaintiffs in respect of husband of Plaintiff No. 1 and father Civil Suit No: 1221/2021 Madhu & Ors. Vs. The State & Ors. Page 13 of 14 of Plaintiff Nos. 2 to 5 with effect from the date of this Judgment i.e. 02.02.2023.
15. Original documents, if any, be returned to the parties against acknowledgement of receipt upon filing certified copies of the same.
16. Parties to bear their own cost. Decree-sheet be prepared accordingly. File be consigned to Record Room after due compliance.
Announced in open court on 02.02.2023.
(Himanshu Raman Singh) Addl. Senior Civil Judge, Shahdara KKD Court, Delhi/02.02.2023.
Civil Suit No: 1221/2021 Madhu & Ors. Vs. The State & Ors. Page 14 of 14