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A P P E A R A N C E
Sri Bikash Gogoi, the learned advocate for the Petitioner.
Sri Pradip Sarma, the learned advocate for the Respondent Nos.1 and 2.
J U D G M E N T
ISSUE NO.1 :
8. From the averments made in the Petition by the Petitioner,
Smti Jonaki Boro, it appears that the husband of the Petitioner namely Kalicharan
Boro was a school teacher working at Hatiemara L.P. School under BEEO,
Lakhimpur, one day in the year, 1994, her husband, Kalicharan Boro went to
school and since then, he never returned home and the matter was reported to
the Officer-in-charge of Boginadi PS and accordingly, GDE No.402 dtd.
21.05.1995 was made and subsequently a report was submitted by the O.C of
Boginadi PS in this regard. Her husband was a govt. Employee and for the
purpose of realisation of pension and other benefits as admissible in the eye of
law, his death certificate, and legal heir certificate is utmost necessary. The
Respondent Nos.1 and 2, in the written statement contended that death
certificate of a person can be obtained under the procedure and provision of
Birth & Death Registration Act, 1969 followed by the registration of Births &
Deaths Rules, 1978, and no birth/ death certificate can be issued from the
Contd…
4 Title Suit (Declaration of Death) No.53/2014.
Respondent side beyond the procedure and provision of said Act. It is also
contended that the Petitioner has filed the instant suit for declaration, but relief is
sought for direction which is contradictory to each other. Accordingly, the
Respondent Nos.1 and 2 have prayed to dismiss the suit. In view of the
contentions raised by the Petitioner and the Respondent, it is seen that the
instant suit was filed by the Petitioner seeking direction or to say declaration that
her husband can be presumed to be dead. On the other hand, the Respondents
did not deny that the husband of the Petitioner has been dead. In such a
situation, in order to claim declaration of right, someone has to deny that right.
Thus, in order to declare that a person was dead on a particular date somebody
has to deny the death of that particular person. In the instant suit, nobody has
denied that the husband of the Petitioner had died or claimed to be alive. On
considering the materials on record as well as the evidence, it seems that there
arose no cause of action for such a suit. Accordingly, issue no.1 is decided in
negative.
Contd…
7 Title Suit (Declaration of Death) No.53/2014.
Health Services, Lakhimpur, and the Officer-in-Charge of Boginadi PS as
respondents in this suit without making the State of Assam as party and as per
requirement of Section 80 CPC relating to service of notice, which was not
complied with. As per provision of Sec.80 CPC, cause of action, name,
description, place of residence of the petitioner/ plaintiff along with claim shall all
be stated in such notice and the plaint shall contain a statement that such notice
has been so delivered or left. As the plaintiff/ petitioner did not comply with the
service of notice u/s 80 CPC and there was no prayer made by the Petitioner
seeking leave of the court u/s 80(2) CPC, and as such, non-compliance of such
notice, which is mandatory and since the present suit does not satisfy its
requirement, which is certainly liable to be dismissed, is not in dispute. Viewed
from this angle, the present suit has become not maintainable because of non-
compliance of the terms of Sec.80 CPC. Having found the circumstances clearly
proved that there was no compliance of the terms of Sec.80 CPC, this court finds
the entire claim in the suit must fail. Apart from the above, the nature of claim
made by the Petitioner determines whether the court of Civil judicature will be
one, who has jurisdiction of the matter. If the matter is of civil nature, it will
follow hierarchy of the civil court. When it comes to the civil judicature,
jurisdiction of the court is divided on the basis of pecuniary as well as territorial
jurisdiction. As per Section 6 CPC, every court will have jurisdiction over those
disputes, which are within its pecuniary limit and every suit must be filed in the
lowest court competent to try it. This pecuniary jurisdiction is decided on the
value of the suit, but interestingly, the present suit is not valued at all. After
valuation, the court only having pecuniary as well as territorial jurisdiction can try
the suit. The plaintiff / petitioner needs to mention in its plaint about the facts,
which show that the court has jurisdiction over the matter as per provision of
Order VII Rule 1(f) CPC, but these facts are not included in the instant suit.
Therefore, having regard to the above, the Petitioner could have filed such suit
before the court of lowest rank and in this case, it is the Munsiff court at North
Lakhimpur or otherwise, the plaintiff/ petitioner can very well seek such relief by
way of writ jurisdiction of the Honourable Gauhati High Court. Instead of filing
such suit before the competent court, the Petitioner has come up with the
Petition before this court for the reasons best known to the Petitioner. In that
Contd…
8 Title Suit (Declaration of Death) No.53/2014.
view of the matter, the suit can be said to be not maintainable. As such, no relief
can be given to the person. Accordingly, these issues are decided.
Given under my hand and seal of this court on this 18th day
of March, 2017.
( I. Ali )
District Judge,
Lakhimpur, North Lakhimpur.
Dictated & corrected by me :
( I. Ali )
District Judge,
Lakhimpur, North Lakhimpur.