SWATI AND ORS. Vs. ABHAY AND ORS.

JUDGEMENT

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

(2.) The appellant no.1 Smt. Swati w/o Abhay Deshmukh and her two daughters filed a suit being Regular Civil Suit No.376/2015 in the Court of learned Joint Civil Judge, Junior Division, Nagpur for a declaration of civil death, obviously referable to Section 108 of the Evidence Act, with a prayer to seek declaration that Abhay Deshmukh died civil death since he went missing from 16.7.2006 and was not heard of since then. A report at the Police Station, Ranapratapnagar, Nagpur was lodged on 16.3.2008 that despite due diligence and enquiry made from time to time, Abhay Deshmukh could not be found. Mr. S.V. Purohit, learned counsel for the appellants submitted that Abhay Deshmukh did not have a passport. The period of seven years from 16.7.2006 having been lapsed, the Police Station Officer Ranapratapnagar issued a certificate dated 18.3.2015 (Exh. 18) and it is thereafter the Suit was filed. All the documents relevant to the Suit were filed with required court fees. The affidavit-evidence was filed before the trial Court when the suit was taken up for hearing. The Police Station Officer was also examined before the learned trial Judge. The learned trial Judge, however, dismissed the Suit. The appellants preferred an Appeal. The learned District Judge-8, Nagpur too dismissed the same and confirmed the decree of dismissal. Hence, the instant Second Appeal is preferred at the instance of the appellants.

(3.) In support of the Appeal, Mr S.V. Purohit, learned counsel for the appellants submitted that the Civil Suit was filed on civil death referable to section 108 of the Evidence Act, by invoking the plenary jurisdiction under Section 9 of the Civil Procedure Code. The Courts below with reference to Section 34 of the Specific Relief Act made confusion for denying the relief, whereas as matter of fact, there was absolutely no contest, no relatives, friends or for that matter even the State because none including the State objected to the grant of relief pursuant to the notification published by the Court in the newspaper on 21.4.2015 (Exh.13) and, therefore, it was required to be presumed that none have objection for grant of objection. At any rate, according to him, the relief under Section 108 of the Evidence Act that was sought, was obviously for the benefit of the dependents of Abhay Deshmukh and not for seeking relief against anybody. The Courts below should not have dismissed the Suit for reasons which are not germane. He relied the decision in the case of LIC of India vs. Anuradha: , AIR 2004 SC 2070.