SUSHILA AND ORS. Vs. THE STATE OF MAHARASHTRA

JUDGEMENT

(1.) After hearing learned counsel for the appellant, this Court found that this appeal should be decided at the admission stage itself in view of the short controversy arising in the matter.

(2.) The appellant Smt. Sushila w/o Babulalji Sawal with her two sons filed a suit bearing Regular Civil Suit No. 640/2015 in the Court of Civil Junior Division, Nagpur, labelling the same as the one under Section 108 of the Indian Evidence Act, 1873 with a prayer asking for a decree declaring that Babulalji Tarachandji Sawal is no more alive. It was stated in the suit that the husband of the plaintiff no.1-Smt. Sushila and father of the plaintiff nos. 2 and 3 since 19.03.2004 went missing and despite due diligent search, he could not be found and as a result, on 20.03.2004 a police complaint was lodged with Ranapratap Nagar Police Station, Nagpur. The plaintiff then enquired from time to time with the relatives and friends but to no use. It is stated that Babulalji did not have any Passport. The missing news was also published in the leading newspaper 'Nav Bharat' on 203.2004. Since, it was necessary to have minimum period of seven years elapsed, the plaintiffs approached Police Station, for a certificate to that effect which was issued on 06.06.2011 i.e. after seven years. All these documents were filed along with suit and required Court fees etc. The affidavit evidence was filed before the trial Judge when the suit was taken up for hearing. The learned trial Judge, however, dismissed the suit. The appellants/ plaintiffs carried an appeal before the District Court, which also dismissed the appeal and confirmed the decree of dismissal of the suit. Hence, this Second Appeal.

(3.) In support of the appeal, Mr. Gharote, learned counsel for the appellants, vehemently argued that the suit filed by the appellants was by invoking the plenary jurisdiction of the Civil Court under Section 9 of the Code of Civil Procedure. According to him, the reason given by the lower appellate Court that the suit would be under Section 34 of the Specific Relief Act and that no ingredients thereof were satisfied, is wrong and illegal. Equally, the appellate Court held that the appellants had not sought any declaration as to the date of death nor had specified the date of death, which according to Mr. Gharote, is wholly irrelevant in the sense that what was sought in the prayer was a declaration consistent with Section 108 of the Evidence Act. According to Mr. Gharote, another reason for denying the relief was that no party was added as defendant in the suit and, therefore, no declaration that was prayed be granted, which according to him is again misconceived because appellant no.1 is wife while appellant nos. 2 and 3 are the children and none else wanted to object or contest the claim in the suit. The learned counsel then invited my attention to the public notice issued under the Court Process No. 4180 dated 30.06.2015 in the suit in question, but in response thereto, there was no contest nor any objection to the suit was taken. The learned counsel for the appellants then contended that the suit claiming relief qua Section 108 of the Evidence Act in its very nature is normally to be treated not like the suits regularly filed in the Courts. He relied on decision in the case of L.I.C. of India vs. Anuradha; , AIR 2004, SC 2070, relied on by this Court in the case of Santosh Popat Chavan vs. Sulochana Rajiv, , 2015 (5) ALL MR 604 particularly paragraph 31 thereof.