Dismissed

Smt Shanthamma v. the Commissioner

Karnataka HC29 Jul 2021RSA/693/2019

Case brief

AI extract

What is this about?

The High Court of Karnataka adjudicated a regular second appeal challenging the dismissal of a suit seeking declaration of civil death. The court dismissed the appeal at the admission stage due to lack of substantial questions of law under Section 100 of the CPC, noting the appellant failed to prove her husband's whereabouts.

What did the court decide?

regular second appeal dismissed at the admission stage as devoid of merit and lacking substantial questions of law.

Smt Shanthamma Vs the Commissioner — Civil Procedure and Limitation | Karnataka HC (2021)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 29^TH DAY OF JULY 2021

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BEFORE

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THE HON’BLE MR. JUSTICE E.S.INDIRESH

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R.S.A. No.693 OF 2019

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BETWEEN:

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SMT. SHANTHAMMA W/O K.SIDDAPPA AGED ABOUT 63 YEARS R/O # 231, 7^TH CROSS ‘B’ BLOCK DEVRAJ URS LAYOUT DAVANGERE-577006

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... APPELLANT

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(BY SRI.SANTHOSH R NELKUDURI, ADVOCATE)

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AND:

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THE COMMISSIONER

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DAVANGERE CITY CORPORATION MUNICIPAL CORPORATION BUILDING DAVANGERE

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TASILDAR

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DAVANGERE TALUK

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DAVANGERE-577001

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DEPUTY COMMISSIONER

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DAVANGERE DISTRICT DAVANGERE-577001

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STATE OF KARNATAKA REPRESENTED BY ITS CHIEF SECRETARY VIDHANA SOUDHA

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BENGALURU-560001

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... RESPONDENTS

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(BY SRI.S.MAHESH FOR ADVOCATE FOR R.1; SMT.H.R. ANITHA, HCGP FOR R2 TO R4)

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THIS REGULAR SECOND APPEAL IS FILED UNDER SECTION 100 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED:22.02.2019 PASSED IN R.A.NO.134/2018 ON THE FILE OF THE PRL. SENIOR CIVIL JUDGE, DAVANAGERE DISMISSING THE APPEAL AND CONFIRMING THE JUDGEMENT AND DECREE DTD: 16.11.2018 PASSED IN OS.NO.433/2016 ON THE FILE OF THE ADDITIONAL CIVIL JUDGE, DAVANGERE.

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THIS REGULAR SECOND APPEAL COMING ON FOR ADMISSION THIS DAY, THE COURT, DELIVERED THE FOLLOWING:

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J U D G M E N T

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This appeal is filed by the plaintiff challenging the judgment and decree dated 22.02.2019 passed in R.A.No.134/2018 on the file of the Principal Senior Civil Judge at Davangere confirming the judgment and decree dated 16.11.2018 passed in O.S.No.433/2016 on the file of Additional Civil Judge at Davangere, dismissing the suit of the plaintiff.

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For the sake of convenience, the parties in this appeal shall be referred to in terms of their status and ranking before the trial Court.

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It is the case of the plaintiff that she is the wife of one K.Siddappa and he is missing from Davangere and

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his whereabouts are not known since 10.09.1989. It is further stated in the plaint that though family members have made efforts to trace her husband, however, the same has not yielded any fruits in securing her husband. It is further stated in the plaint that her husband K.Siddappa had left the house leaving behind a letter stating that he will be back after some time and further instructed not to search for him. Accordingly, she made a representation to the defendants Authorities to make an entry in the Register of Birth and Death with regard to civil death of her husband as her husband remained unheard for more than seven years and the same was declined by the Authorities and as such, plaintiff has filed suit in O.S.No.433/2016 on the file of the trial Court, seeking relief of declaration that her husband K.Siddappa died as on 10.09.1989 and to direct defendant No.1 to enter the date of civil death of K.Siddappa s/o Kallappa in the Register of Births and Deaths. The said suit was resisted by defendant Nos.2 to 4 by filing written statement denying the averments

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made in the plaint. The trial Court based on the

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pleadings on record formulated the following issues.

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Whether the plaintiff proves that her husband by name K.Siddappa is missing since 10.09.1989 and is to be declared as civil death as alleged?

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2. Whether the plaintiff is entitled for the relief of declaration and mandatory injunction as sought?

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3. To what relief, if any the parties are entitled?

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The plaintiff was examined as P.W.1 and got

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marked 10 documents as Exs.P1 to P10. No evidence was adduced by the defendants. The trial Court after considering the materials on record, by its judgment and decree dated 16.11.2018 dismissed the suit and being aggrieved by the same, the plaintiff preferred an appeal in R.A.No.134/2018 on the file of the First Appellate Court and the said appeal was resisted by the respondents - Government. The First Appellate Court,

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after re-appreciating the materials on record, dismissed the appeal and as such, confirmed the judgment and decree passed by the trial Court dated 16.11.2018. Being aggrieved by the same, the plaintiff has presented this Regular Second Appeal.

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I have heard Sri.Santhosh R.Nelkudri, learned counsel appearing for appellant and Smt.H.R.Anitha, learned HCGP appearing for State. There is no representation on behalf of respondent No.1.

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Sri.Santhosh R.Nelkudri, learned counsel

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appearing for appellant contended that the impugned judgment and decree passed by the Courts below are contrary to the records and both the Courts erred in holding issue No.1 in the negative despite the fact that the defendants have not placed any proof rebutting the evidence of PW.1. He further contended that the relationship between the parties is not in dispute and therefore, the findings recorded by the trial Court, which

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ultimately confirmed by the First Appellate Court, is bad in law and requires to be set-aside in this appeal.

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Per contra , Smt.H.R.Anitha, learned HCGP

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contended that the plaintiff ought to have taken out paper publication with regard to missing of K.Siddappa and no complaint was lodged before the jurisdictional police as required under law and therefore, the finding recorded by both Courts below on facts is just and proper and no interference is required in this appeal.

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Having heard the learned counsel appearing for

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the parties, I have carefully considered the findings recorded by the trial Court, wherein the plaintiff has taken a plea in the plaint that her husband K.Siddappa left the house on 10.09.1989 leaving behind a note stating that he will return after some time and instructed the family members not to make any efforts to trace him, and the said note/letter is not produced before the Court to fortify their stand in the plaint. Perusal of the record would further indicate that the plaintiff ought to have

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lodged a complaint with the jurisdictional police alleging the missing of her husband. The suit is filed in the year 2016.

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It is the case of the plaintiff that her husband is missing from 10.09.1989 i.e., for over a period of 28-29 years and no independent witnesses have been examined by the plaintiff to prove the missing of her husband and therefore, taking into consideration the facts on record, the trial Court rightly dismissed the suit.

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I have also given my anxious consideration to the findings recorded by the First Appellate Court. The First Appellate Court, on re-appreciating the material on record, with cogent reasons at para Nos.10 and 11 of the judgment, arrived at a conclusion that the trial Court has properly appreciated the oral and documentary evidence adduced by the parties and also held that the plaintiff failed to prove the relationship with the said K.Siddappa. In this regard, the finding recorded by the First Appellate Court is just and proper. Section 108 of

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the Indian Evidence Act, 1872 provides that a person who has not been heard for past seven years is presumed to be dead. But, the said presumption has to be proved by the plaintiff as required under Section 108 of the Act. In the instant case, the burden is on the plaintiff to prove that her husband is missing from 10.09.1989. However, no documentary evidence has been produced before the Courts below to substantiate the fact that her husband is missing for more than seven years nor the plaintiff examined the relatives/friends or any person who are known to her husband not only to prove her relationship with the said K.Siddappa but also to determine the fact that whether the said K.Siddappa is missing or not. In that view of the matter, I do not find any good grounds to interfere with the well-reasoned judgment and decree passed by the Courts below. Accordingly, the appeal fails as devoid of merits.

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The appeal is dismissed at the Admission stage itself as the appellant has not made out a case for

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framing of substantial questions of law as required under Section 100 of CPC.

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Sd/JUDGE

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NBM

Smt Shanthamma v. the Commissioner

Case brief

What is this about?

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Smt Shanthamma v. the Commissioner

Case brief

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