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Delhi District Court
Saroj Bala vs The State (Govt. Of Nct Of Delhi) on 23 April, 2025
IN THE COURT OF MS. NEHA PANDEY, JSCC/ASCJ/GJ
(WEST),
TIS HAZARI COURTS, DELHI.
Suit No. 1053/2023
CNR No. DLWT03-002094-2023
Smt. Saroj Bala
w/o Late Shri Om Veer @ Ombir
R/o D-283, Resettlement scheme,
JJ Colony, Khyala, West Delhi,
New Delhi-110018. ......Plaintiff
Versus
1. The State(Govt. of NCT of Delhi)
Through Director of presecution
District West.
2. Municipal corporation of Delhi
Through its Commissioner,
Civic Center, Minto road,
PS Mianwali Nagar
New Delhi-110002.
3. SHO
P.S Khyala
New Delhi. ......Defendants
Date of Institution : 09.08.2023
Date of final arguments : 28.03.2025
Date of decision : 23.04.2025
JUDGMENT
1. The plaintiff has filed the present suit against the
defendants for declaration seeking declaration of the civil death
Suit No.1053/2023 Saroj Bala vs State NCT of Delhi & Ors 1 / 21
of Shri Omveer @ Ombir S/o Shri Fullo @ Fullo Chaudhary
(husband of plaintiff).
PLAINT
2. It has been averred by the plaintiff is the legally wedded
wife of Om Veer @ Ombir S/o Sh.Fullo @ Fullo Chaudhary R/o
D-283, J.J. Colony, Khyala, New Delhi-110018, who was
working as Safai Karamchari in M.C.D. and lastly he was posted
at Ward No.90, Moti Nagar, Delhi vide his employee I.D.
No.51600855. That the husband of the plaintiff namely Om Veer
@ Ombir had left the house on 20.11.2015 at about 7.00 A.M.
and thereafter he did not return back home. That the plaintiff and
other relatives searched a lot at their level best efforts for Om
Veer@ Ombir and inspite of the search and efforts made by the
plaintiff herself along with other relatives were unable to trace
him, the plaintiff and other family members and relatives
presumed that Om Veer @ Ombir came back at his house on his
own but he did not come back for a long time then the son of the
plaintiff namely Amit has lodged a missing report on 27.11.2015
vide D.D. No.38A with police Station Khyala, Delhi. Thereafter,
plaintiff and other relatives as well as police tried their best to
trace out Om Veer @ Ombir. The police also verified from all
the police stations as well as in the mortuary, where unclaimed
dead bodies were receiving during that period as per the
knowledge of the plaintiff. Thereafter Public notice in regard of
missing of Om Veer @ Ombir were also published on
08.12.2015 in daily Hindi newspaper ‘Punjab Kesri’ besides
trying to trace him out through other modes. But all the efforts
gone in vain and he could not be traced out. That the plaintiff
Suit No.1053/2023 Saroj Bala vs State NCT of Delhi & Ors 2 / 21
also traced him in all the family relations and at the residence of
friends as well but the plaintiffs could not trace him out. From
20.11.2015 till date more than 7 years have been passed, but said
Om Veer @ Ombir has not been heard of, during this period, by
those who would naturally have heard of him, if he had been
alive. Neither the plaintiff nor his children nor any of the
relations/relatives nor any of the family friends have heard of
him during this long period of time, nor his whereabouts could be
traced. finding no other way plaintiff moved an application on
03.04.2023 to the S.H.O., P.S. Khyala, Delhi for obtaining the
untraced report of her husband. Thereafter a local enquiry was
conducted by the police officials from the neighbourhood of the
plaintiff and statement of two independent witnesses namely (1)
Prem Singh S/o Late Saba Chand and (2) Santosh W/o Late
Kanwar Singh were recorded and thereafter HC.Mukesh Kumar
No.2176/W, P.S. Khyala filed the report dated 24.5.2023 in
which it has been confirmed that Om Veer @ Ombir is still not
traceable. The plaintiff has approached the concerned S.D.M. for
the issuance of the death certificate of the said Om Veer@Ombir
as he has powers for the same but the S.D.M. is not willing to do
so hence the plaintiff is left with no other option except to file the
present suit before this Hon’ble Court.
4. Summons of the present suit were issued to the defendants.
Defendant no.1 was served on 22.08.2023 and defendant no.3
was served on 19.08.2023. Till date, defendant no.1 and 3 have
neither appeared before the court nor filed thier WS. Defendant
no.1 and 3 are proceeded as exparte vide order dated 02.03.2024.
The defendant no.2/MCD put his appearance on 26.10.2023.
Suit No.1053/2023 Saroj Bala vs State NCT of Delhi & Ors 3 / 21
WRITTEN STATEMENT OF DEFENDANT NO.2/MCD
5. Defendant no.2/MCD has filed its written statement and
has taken various preliminary objections like that suit is not
maintainable for want of service of the statutory notice U/s
477/478 of DMC Act, that the issuance of death certificate does
not come within the purview of defendant no.1/MCD and the
defendant cannot issue the death certificate unless the plaintiff
provides the orders from the Court regarding declaration of the
death, where the person is missing for more than 7 years. Hence
the present suit is devoid of any cause of action and liable to be
dismissed.
6. In the instant case, defendant no.1 had neither appeared
nor filed the written statement.
7. On the pleadings of the parties, following issue was framed
for trial on 02.03.2024:-
i) Whether the plaintiff is entitled to a decree of declaration
for declaring that Sh. Omveer @ Ombir who is the husband of
the plaintiff be declared dead as he has not been heard for more
than 7 years, as prayed for? OPP
ii) Whether the plaintiff is entitled to the decree of mandatory
injunction for the issuance of death certificate of Sh. Omveer @
Ombir by the Registrar of Birth and Death?OPP
iii) Whether the present suit is barred by provisions of Section
477 and 478 DMC Act? OPD2
iv) Relief.
Suit No.1053/2023 Saroj Bala vs State NCT of Delhi & Ors 4 / 21
8. In plaintiff evidence, the plaintiff examined herself as
PW-1 who tendered her affidavit in evidence Ex. PW1/A. PW-1
relied on the following documents:-
1).Copy of Aadhar Card- Ex. PW1/1 (OSR)
ii) Ex. PW1/2 i.e. Copy of Aadhar Card of Sh. Om
Veer @ Ombir is de-exhibted and same is Mark A
(iii) Newspaper Cutting -Ex. PW1/3 (OSR)
(iv) Application for obtaining untrace report- Ex.
PW1/4 (OSR)
(v) Untrace report dated 24.05.2023- Ex. PW1/5
(OSR)
Plaintiff was cross examined by defendant no.2. and
during her cross examination she she admit that she has not
furnished ID card and the pay slip of the department in the
suit.
Another witness HC Mahesh is examined as PW-2
who brought the summoned record of PS Khyala in respect
of missing of Omveer @ Ombir, and also bring record of
DD no.38A dated 27.11.2015, the same is Ex PW2/A
(OSR). Publication in the newspaper also done from PS
Khyala, original Newspaper is Ex.PW2/B and regarding
the untrace report in respect of missing person vide DD no.
38A dated 27.11.2015 PS Khyala signed by HC Mukesh
Kumar which is Ex.PW 2/C. He stated that as per record
the missing person has not been traced till today as per the
record of PS Khyala. Witness was not cross examined by
the defendant no.2.
Another Witness Shri Sudhir Bhardwaj,LDC of
Suit No.1053/2023 Saroj Bala vs State NCT of Delhi & Ors 5 / 21
MCD, Karol bagh zone was examined as PW-3 who
brought the summon record from the office of MCD ward
no.90, Moti Nagar, Delhi with regard to service record of
Omveer @ Ombir S/o Sh Fhulu R/o H no.D-283, JJ
Colony, Khyala, New Delhi. He stated that Omveer @
Ombir is an employee in MCD as safai karamchari vide
service book of the said employee is Ex.PW3/1 (OSR) and
have brought the missing report of the said employee duly
stamped by PS Khyala vide DD no.38-A dated 27.11.2015,
photocopy is mark A, intimation letter dated 10.09.2018
sent by the department bearing signatures of Sanitary
Superintendent dated 10.09.2018 at the house of the
missing person is also Ex PW3/2 (OSR) alongwith photo
of missing person/employee same is Mark B. As per the
record the said person/employee was missing from the duty
since 16.11.2015 the same is endorsed in the service book
of the employee, the same is Ex.PW3/3 (OSR) which
bearing the signatures of authrorized persons. As per the
record of MCD the said person/employee is missing till
today as per record despite the several letters/intimations
has been sent by the department at the house of the
employee. All the records brought by me has been shown
in the court today and return the same.
PW-3 was also not cross examined by defendant no.
2/MCD.
9. No other witness was examined and PE was closed
on 28.03.2025. Matter was fixed for final arguments.
10. I have heard ld. Counsel for the plaintiff and have carefully
Suit No.1053/2023 Saroj Bala vs State NCT of Delhi & Ors 6 / 21
gone through the record.
11. My issues wise findings are as follows:
Issue No. iii) Whether the present suit is barred by
provisions of Section 477 and 478 DMC Act? OPD2.
The onus to prove the same is upon defendant no.2/MCD.
The objection as taken in written statement by defendant
No.2/MCD that the present suit is barred under sections 477/478
of DMC Act for want of statutory notice. The objection is not
legally tenable. The basic object of sections 477/478 of DMC Act
is to prevent matters from coming to court and once the matter
has reached the court and is contested, the suit ought not be
dismissed on technical grounds. In this regard, reliance can be
had to the report of Col. A. B. Singh (through LRs) v. Shri
Chunnilal Sawhney and Others, 2011 SCC OnLine Del 4289,
wherein it was observed:
” In any case, this issue is no longer res integra in
as much as, it has been held by a Division Bench
judgment of this court in the case of Yashoda
Kumari v. MCD13 that once there is a contest to
the suit, the suit cannot be held to be barred for
not giving of the notice under Section 53B
inasmuch as the basic object of Section 53B, like
Section 80 CPC is to prevent the matters from
coming to court and once the matter reach the
court and are contested, the suit should not be
dismissed on such technical grounds. The
relevant observations of the Division Bench of
this court in the decision of the case Yashoda
Kumari (supra) are as under:-
7. Section 80, CPC affords two
options to the plaintiff. He
may either file a suit against the
Government or the public officer
after serving two months noticeSuit No.1053/2023 Saroj Bala vs State NCT of Delhi & Ors 7 / 21
under subsection 1 or he may file it
without serving the notice and
for this seek the leave of the
Court under subsection 2 on
satisfying it that an immediate
and urgent relief was required in
the facts and circumstances of
the case. He can do this by filing
an accompanying application to
show the urgency which is to
be considered and disposed of
by the Court. In the event it is
rejected, the Court has to return the
plaint to the plaintiff who could refile
it after service of two months notice
under the proviso of Section 80.
8. The object of Section 80 notice is
to afford the Government or the
public officer an opportunity to
examine the nature of the claim to
settle it, if so advised and to avoid
any futile litigation and to save the
public money and time which
would be otherwise wasted on
unnecessary litigation.
9. The Supreme Court in Raghunath
Das v. Union of India, holding
this:
“The object of the notice
contemplated by Section
80, CPC is to give to the
concerned Government and
public officers opportunity
to reconsider the legal
position and to make
amends or settle the claim,
if so advised without
litigation. The legislative
intention behind that
section is that public
money and time should not
be wasted on unnecessary
litigation and the
Government and the publicSuit No.1053/2023 Saroj Bala vs State NCT of Delhi & Ors 8 / 21
officers should be given a
reasonable opportunity to
examine the claim made
against them lest they
should be drawn into
avoidable litigation. The
purpose of law is
advancement of justice.
The provisions in Section
80 are not intended to be
used as booby trap against
ignorant and illiterate
persons.”
11. Apart from this, we find
that the appellant’s suit was
already registered by the
Court first and ex parte
interim order was also
passed in this. It was
thereafter transferred to
District Court along with
the application for grant of
leave. From this it could
also be easily presumed that
the Court had impliedly
granted the leave to institute
the suit or that the notice
stood waived in the facts
and circumstances of the
case. This aspect seems to
have gone totally unnoticed
with Trial Court
proceedings mechanically in
the matter to dismiss the
suit for want of notice under
Section 80, CPC.
14. But this apart taking in
regard that this Court had
registered the suit and
granted the stay order and
that respondents had
contested it all through,
even notice under Section
53B should be deemed
Suit No.1053/2023 Saroj Bala vs State NCT of Delhi & Ors 9 / 21
waived in the facts and
circumstances of the case.
After all the purpose of
notice under Section 53B
of DDA Act is the same as
that of Section 80, CPC
i.e. to bring the claim to the
authority’s notice so that it
may concede or contest it.
Once the authority had
contested it on merits even
at preliminary stage, it
could not complain of non-
service of notice under
Section 53B now. Nor
could it be held fatal to
justify the dismissal of the
suit.
15 Viewed this, we allow
this appeal and set aside the
impugned dismissal order.
Technically this would
revive appellant’s suit for
consideration of appellant’s
application for grant or
refusal of leave but we feel
that much water had flowed
down since and doing so
would be an exercise in
futility because parties have
already contested the suit
on merit all through and all
these years. It would be
ridiculous and
hypertechnical to take them
back to square one for a
fresh debate on service of
two months’ notice under
Section 80, CPC or Section
53B of DDA Act. Both
notices shall, therefore, be
deemed waived in the facts
and circumstances of the
case and appellant’s suit No.
Suit No.1053/2023 Saroj Bala vs State NCT of Delhi & Ors 10 / 21
316 shall be revived and
disposed of under law on
merit.
Therefore, once defendant no.2/MCD has contested the
present suit, it cannot be dismissed by recourse to section 477
and 478 of DMC Act. The present suit is held to be maintainable
and said issues is decided in favour of plaintiff and against
defendant no.2/MCD.
12. Issue no. i) Whether the plaintiff is entitled to a decree of
declaration for declaring that Sh. Omveer @ Ombir who is the
husband of the plaintiff be declared dead as he has not been
heard for more than 7 years, as prayed for? OPP
Issue no.ii) Whether the plaintiff is entitled to the decree of
mandatory injunction for the issuance of death certificate of Sh.
Omveer @ Ombir by the Registrar of Birth and Death?OPP.
The onus to prove these issues was upon the plaintiff. The
jurisdiction of a civil court to grant declaratory relief flows from
section 34 of Specific Relief Act, 1963. Section 34 of Specific
Relief Act, 1963 reads as under:
” 34. Discretion of court as to declaration of status or right.-
Any person entitled to any legal character, or to any
right as to any property, may institute a suit against
any person denying, or interested to deny, his title to
such character or right, and the court may in its
discretion make therein a declaration that he is so
entitled, and the plaintiff need not in such suit ask for
any further relief:
Provided that no court shall make any such
declaration where the plaintiff, being able to seek
further relief than a mere declaration of title, omits to
do so.
Suit No.1053/2023 Saroj Bala vs State NCT of Delhi & Ors 11 / 21
Explanation.–A trustee of property is a “person
interested to deny” a title adverse to the title of some
one who is not in existence, and whom, if in
existence, he would be a trustee.”
Strictly speaking, the relief as to
declaration of civil death does not fall withing the
purview of section 34 of Specific Relief Act, 1963,
since generally neither it relates to the legal character
or right as to property of the person seeking such
declaration nor can the civic authorities be said to be
interested to deny such character or right. Moreover,
such declaration is generally sought without seeking
any further relief. However, it is no more res integra
that section 34 of Specific Relief Act, 1963 is not
exhaustive of all kinds of declaratory reliefs and that a
declaratory suit can still be maintained which may not
fall within its purview. In Vemareddi Ramaraghava
Reddy v. Konduru Seshu Reddy, AIR 1967 SC 436, It
was observed by Hon’ble Supreme Court:
“The legal position is also well-established that the
worshipper of a Hindu temple is entitled, in certain
circumstances, to bring a suit for declaration that the
alienation of the temple properties by the de jure
Shebait is invalid and not binding upon the temple.
if a Shebait has improperly alienated trust property a
suit can be brought by any person interested for a
declaration that such alienation is not binding upon
the deity but no decree for recovery of possession
can be made in such a suit unless the plaintiff in the
suit has the present right to the possession.
Worshippers of temples are in the position of
cestuui que trustent or beneficiaries in a spiritual
sense (See Vidhyapurna Thirthaswami v.
Vidhyanidhi Thirthanswami). Since the worshippers
do. not exercise the deity’s power of suing to protect
its own interests, they are not entitled to recover
possession of the property improperly alienated bySuit No.1053/2023 Saroj Bala vs State NCT of Delhi & Ors 12 / 21
the Shebait, but they can be granted a declaratory
decree that the alienation is not binding on the
deity (See for example, Kalyana Venkataramana
Ayyangar v. Kasturiranga Ayyangar(4) and
Chidambaranatha Thambiran v. Nallasiva
Mudaliar). It has also been decided by the Judicial
Committee in Abdur Rahim v. Mahomed Barkat Ali
that a suit for a declaration that property belongs to
a wakf can be maintained by Mahomedans
interested in the wakf without the sanction of the
Advocate-General, and a declaration can be given in
such a suit that the plaintiff is not bound by the
compromise decree relating to wakf properties.
In our opinion, s. 42 of the Specific Relief Act
is not exhaustive of the cases in which a declaratory
decree may be made and the courts have power to
grant such a decree independently of the
requirements of the section. It follows, therefore, in
the present case that the suit of the plaintiff for a
declaration that the compromise decree is not
binding on the deity is maintainable as falling
outside the purview of s. 42 of the Specific Relief
Act.”
It was further observed by Hon’ble
Supreme Court that declaratory reliefs falling outside
Specific Relief Act may fall under the general
provisions of Civil Procedure Code, like section 9 or
Order VII Rule 7 CPC. This was reiterated in General
Films Exchange Ltd. v. H.H. Maharaja Sir Brijnath
Singhji Deo, AIR 1975 SC 1810, wherein it was
observed by Hon’ble Apex Court:
” In Sheoparsan Singh & Ors. case (supra), what
was really held by the Privy Council was that a
grant of probate under the Probate and
Administration Act (V of 1881), which operated
as a judgment in rem, could not be collaterally
assailed by a suit for a declaration brought by
reversioners seeking to question the will. Sir
Lawrence Jenkins who had, incidentally, decided
Deokali Koer’s case (supra) too said (at p.
97):
Suit No.1053/2023 Saroj Bala vs State NCT of Delhi & Ors 13 / 21
It is not suggested that in this
litigation the testamentary jurisdiction
is, or can be, invoked, and yet there can
be no doubt that this suit is an attempt
to evade or annul the adjudication in the
testamentary suit, and nothing more.”
We think that the decision in this case also
does not assist the appellant much.
In Bai Shri Vaktuba’s case (supra), the
Bombay High Court held that a Talukdar
plaintiff could bring a suit for a declaration
and an injunction to restrain the defendant
from claiming that he was the plaintiff’s son.
Learned Counsel for the appellant, however,
relied upon the following passage from it (at
p. 650):
“It has long been established that
the general power vested in the
Courts in India under the Civil
Procedure Code to entertain all
suits of a civil nature excepting
suits of which cognizance is
barred by any enactment for the
time being in force, does not
carry with it the general power
of making declarations except in
so far as such power is expressly
conferred by statute.”
Kishori Lal’s case (supra) was cited to
show that declaratory decrees falling outside S ection
42 of the Specific Relief Act are not permissible
because Section 42 Specific Relief Act is exhaustive on
this subject. This view must be held to have been rejected
by this Court when it declared in Veruareddi Rmaranghava
Reddy & Ors. v. Konduru Seshu Reddy & ors (1) (at p. 277)
Suit No.1053/2023 Saroj Bala vs State NCT of Delhi & Ors 14 / 21
In our opinion, S. 42 of the Specific Relief
Act is not exhaustive of the cases in which a
declaratory decree may be made and the
courts have power to grant such a decree
independently of the requirements of the
section It follows, therefore, in the present
case that the suit of the plaintiff for a
declaration that the compromise decree is not
binding on the deity is maintainable as falling
outside the purview of S.. 42 of the Specific
Relief Act“.
The result is that Section 42 merely gives statutory
recognition to a well-recognised type of declaratory relief
and subjects it to a limitation, but it cannot be deemed to
exhaust every kind of declaratory relief or to circumscribe
the jurisdiction of Courts to give declarations of right in
appropriate cases falling outside Section 42.”
Therefore, section 34 of Specific Relief Act cannot be not
held to be the sole repository of the cases in which declaratory
decrees may be made and the Courts have the power to grant
such a decree independently of the requirements of the section,
and such declarations can be granted even though no
consequential relief is capable of being granted.
Further, there are judicial precedents to hold that a suit for
declaration of civil death of a person unheard of for more than
seven years is maintainable. In Swati & Others V.s Abhay &
Others, MANU/MH/0334/2016, Hon’ble Bombay High Court
has held such a suit to be maintainable. The relevant observation
are as under:
” 7. In the light of the dictum laid down by the Apex
Court as above, I am of the firm opinion that the Civil
Court acting under Section 9, has inherent powers in itsSuit No.1053/2023 Saroj Bala vs State NCT of Delhi & Ors 15 / 21
plenary jurisdiction de hors with reference to Section
34 of the Specific Relief Act to grant relief qua Section
108 of the Evidence Act. Therefore, the reason that
Section 34 of the Specific Relief Act was required to be
called in aid does not appear to be sound.”
In Alka Sharma v. Union of India & Others
MANU/UP/0209/2020, the plaintiff had filed a suit for
declaration of civil death of his mother. The Trial Court as well
as the first appellate Court had dismissed the suit. Hon’ble
Allahabad High Court, while passing decree in second appeal,
held as under :
“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 dealsSuit No.1053/2023 Saroj Bala vs State NCT of Delhi & Ors 16 / 21
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.
Suit No.1053/2023 Saroj Bala vs State NCT of Delhi & Ors 17 / 21
In Vijaya Shrikant Revale v. Shirish Shrikant Revale
& Ors., 2016 SCC OnLine Bom 1898, It was held by that a civil
court has the power to grant declaratory relief of civil death. It
was observed by Hon’ble Bombay High Court as under :
“10. It is true that only Civil Court has
power to give suresh relief of
declaration in such matters. The inquiry
under section 372 of the Act is limited.
However, the Court which conducts the
inquiry under Section 372 of the Act is a
civil Court and therefore the said Court is
competent to decide the issue of
declaration of death of Shrikant Vishnupant
Revale.”
Lastly, Hon’ble Supreme Court in LIC of
India Vs. Anuradha, AIR 2004 SC 2070, held as under:
” On the basis of the above said
authorities, we unhesitatingly arrive at a
conclusion which were sum up in the
following words. The law as to presumption
of death remains the same whether in
Common Law of 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
continue to be living. The rule is subject to
a proviso or exception as contained inSuit No.1053/2023 Saroj Bala vs State NCT of Delhi & Ors 18 / 21
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 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 on the sa.18.16
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
who’s 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,
Tribunal or before an authority who is called
upon to decide as to whether a person is alive
or dead. So long as the dispute is not raised
before any forum and in any legal proceedingsthe occasion for raising does not arise”.
13. The grant of decree of declaration of civil death of a
person is founded on the presumption envisaged in Section
Suit No.1053/2023 Saroj Bala vs State NCT of Delhi & Ors 19 / 21
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. 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. In Narbada v. Ram
Dayal, AIR 1968 Raj. 48, it was held that under Section 108 of
the Indian Evidence Act, presumption about the death of a person
is to be drawn when the dispute is brought to the Court and death
can be presumed on the date on which the suit was filed and it
cannot be given a further retrospective effect.
There is nothing on record to discredit the testimony of
PW-1 and other summoned witnesses i.e PW-2 and PW-3 The
plaintiff has proved his documents and same not been disputed
by MCD. In natural course of events, it can be reasonably
expected that a wife of a person would hear from her husband. In
these circumstances, a presumption as to civil death of Om Veer
@ Ombir S/o Sh.Fullo @ Fullo Chaudhary can be raised.
Defendant no.2/MCD not been able to rebut presumption.
14. Accordingly, plaintiff has been successful in proving the
above issues is her favour and she is held entitled to a declaration
that Om Veer @ Ombir S/o Sh.Fullo @ Fullo Chaudhary be
declared as presumed dead. The declaration of civil death of Om
Veer @ Ombir S/o Sh.Fullo @ Fullo Chaudhary shall be
Suit No.1053/2023 Saroj Bala vs State NCT of Delhi & Ors 20 / 21
effective from the date of filing of the suit in the light of
judgment of Narbada v. Ram Dayal (supra).
15. As far as the prayer for issuance of death certificate is
concerned, nothing has been brought on record by defendant
No.2/MCD 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. Thus,
said issue No.(iii) is also decided in favour of the plaintiff and
against the defendants.
Relief
16. In view of my aforesaid findings, the suit of the plaintiffs
is decreed and Om Veer @ Ombir S/o Sh.Fullo @ Fullo
Chaudhary is declared as dead from the date of filing of the
present suit i.e. 09.08.2023. Defendant no.2/MCD shall issue
death certificate in respect of Om Veer @ Ombir S/o Sh.Fullo @
Fullo Chaudhary and his date of death shall be taken to be the
date of filing of the present suit i.e. 09.08.2023.
17. Decree sheet be prepared accordingly.
18. File be consigned to Record Room.
Announced in the open court (Neha Pandey)
on 23rd April 2025 JSCC/ASCJ/Guardian Judge
West, Tis Hazari, Delhi
Digitally
signed by
NEHA
NEHA PANDEY
PANDEY Date:
2025.04.23
16:56:02
+0530Suit No.1053/2023 Saroj Bala vs State NCT of Delhi & Ors 21 / 21
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