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In the light of the above discussion, the Court below
committed serious error in law, which has resulted into miscarriage of
justice to the appellants, which must be corrected. In that view of the
matter, the question framed by me above, is answered in the
affirmative.
10. To sum up, following order is inevitable.:
ORDER
a) Second Appeal No.18/2016 is allowed.
b) Impugned judgment and decree dated 2.9.2015 passed by Joint
Civil Judge, Jr.Dn. Nagpur in R.C.S. No.376/2015 and judgment and
decree dated 31.10.2015 passed by District Judge8, Nagpur in Regular
Civil Appeal No.448/2015, both are set aside.
c) There shall be a decree in terms of prayer clause (2) of the suit
which is reproduced below :
(2) Declare that the defendant Shri Abhay s/o
Purushottam Deshmukh as a dead person and his
death is civil death as he is missing from 16.3.2008
v
Shri Abhay s/o Purushottam Deshmukh
CORAM : A.B.CHAUDHARI, J.
DATED : 26th February, 2016
was also examined before the learned trial Judge. The learned trial
Judge, however, dismissed the Suit. The appellants preferred an Appeal.
The learned District Judge8, Nagpur too dismissed the same and
confirmed the decree of dismissal. Hence, the instant Second Appeal is
preferred at the instance of the appellants.
SUBMISSIONS:
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
referrable 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
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 proceedings the
occasion for raising the presumption does not arise.
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 its 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.
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