Adilakshmi and B.R. Rahul rep. by Natural Guardian his mother vs The Commissioner Bruhat Bangalore Mahanagara Palike

Ashok B. Hinchigeri, J.—This appeal is directed against the judgment and decree, dated 17.4.2010 passed by the Court of the IX Additional City Civil and Sessions Judge, Bangalore (CCH 5) in O.S. No. 5340/07.

The facts of the Appellants'' case in brief are that the Appellant Nos. 1 and 2 are the wife and son of one Sri Raju respectively, who was working as a sweeper in the services of Bruhat Bangalore Mahanagara Palike (''BBMP'' for short). The Appellants claim that the said Raju worked from 1981 to 11.10.1997. He left home for his work place on the said day. Thereafter, he never returned home. The Appellants lodged the police complaint. The said Raju could not be traced by the police also. The Appellants filed a suit seeking the relief of declaration that the said Raju S/Q Narayana is not alive and that therefore be presumed to be dead. The Respondent BBMP did not file the written statement. Based on the pleadings contained in the plaint, the Trial Court framed the following issues:

i) Can it be presumed that Raju is not alive and is dead?

ii) What decree or order?

The Appellant No. 1 got herself examined as PW1 marking the documents at Ex.P1 to P6. The Trial Court answered the issue against the Appellants and dismissed the suit.

Sri T. Rajaram, the learned Counsel for the Appellants submits that the Respondent BBMP did not file the written statement. Based on a stray question put by the Respondent in the course of cross-examination of PW1 that deceased Raju is in Madras, the suit is dismissed. He also submits that the legal notice (Ex.P2) issued to the BBMP did not elicit any response.

Sri Rajaram submits that he has now laid hands on (a) the endorsement issued by the police that Raju is not traceable; (b) notice issued to the general public in the newspaper (Sanjevani issue, dated 18.2.1998) regarding the sudden disappearance of Raju; (c) the Respondent''s service record evidencing that Raju was on the rolls of the Respondent''s services; (d) the order passed by the Respondent BBMP dismissing the said Raju from its services for his unauthorised absence.

Sri K.N. Puttegowda, the learned Counsel for the Respondent submits that it has been the painful experience of the Respondent that many Pourakarmikas are reported to be missing suddenly, though they would be hiding or working in some other places. Thereafter, the persons who are absolutely unconnected to the disappearing Pourakarmika file a suit before the Civil Court for the relief of declaration of the Pourakarmika''s presumed death and thereafter seek an appointment on compassionate ground. He further submits that it is noticed in many cases, where the compassionate appointments are made, that there is some sharing of the amounts in the salary of the compassionate appointee between himself and the person who is alive, but is declared to be dead.

Sri K.N. Puttegowda seriously disputes the authenticity of the documents, which Sri Rajaram wants to produce now. He further submits that neither there is any application under Order XLI Rule 27 of CPC for the production of additional evidence nor there is any explanation forthcoming from the Appellants for the non-production of the documents before the Trial Court in the suit proceedings. Urging these submissions, Sri K.N. Puttegowda prays for the dismissal of this appeal.

My scrutiny of the judgment and decree under appeal shows that no clinching documents whatsoever came to be produced by the Appellants'' side. The endorsement issued by the police on the FIR is not produced. The paper publication containing the notice of Raju''s disappearance is not produced. The documents to show that the said Raju was in the services of the Respondent, ought to have been obtained either under the Right to Information Act or under the applicable rules and procedures in vogue. The same is not done for the reasons best known to the Appellants. Further, no application for the production of additional documents invoking Order XLI Rule 27 of CPC is filed in the appeal proceedings.

The Appellants have not chosen to make the Government a party to the suit. No explanation is forthcoming, as to why the Government was not made a party. Further, the Appellants did not take out any suit summons to the police officer, who conducted the investigation on the Appellants'' complaint.

For all the aforesaid reasons, the Trial Court''s judgment dismissing the suit is absolutely upholdable. Therefore, this appeal is being dismissed without being admitted.

However, it is also the Court''s anxiety that if Raju is really dead, the Appellants and other L. Rs, if any, are not to be deprived of the benefits to which they may be entitled on account of the presumed death of Raju. This Court, therefore, deems it just to reserve the liberty to the Appellants to file one more suit arraigning the Government as one of the Respondents, producing the necessary documents, etc. The filing of fresh suit is of course subject to law of limitation. Needless to observe that if a fresh suit is filed, it is also open to the Respondent to take such defence and offer such resistance to the suit, as may be permissible in law.

Subject to the aforesaid liberty and the observations, this appeal is dismissed. No order as to costs.

Sri K.N. Puttegowda is permitted to file his vakalath in one week''s time.