[Cites 8, Cited by 0]
Madhya Pradesh High Court
Verhsa Verma Vidhyarthi vs Public At Large/ Sarv Sadharan on 12 January, 2026
NEUTRAL CITATION NO. 2026:MPHC-IND:842
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IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE ALOK AWASTHI
SECOND APPEAL No. 967 of 2025
VARSHA VERMA VIDHYARTHI
Versus
PUBLIC AT LARGE/ SARV SADHARAN
Appearance:
Shri Sunil Kumar Soni - Advocate for the appellant.
Reserved on : 18.11.2025
Pronounced on : 12.01.2026
ORDER
Looking to the nature of this appeal as it is against the General Public
and with the consent of the appellant's counsel, it is heard on merits and
decided finally.
2 . This Second appeal under Section 100 of Civil Procedure Code
(for brevity, CPC) has been filed by the appellant/plaintiff against the
impugned judgment and decree dated 29.03.2025 passed by the
XIIth Additional District Judge, District Indore in Regular Civil Appeal No.
20/2025 confirming the Judgment and decree dated 22.10.2024 passed by
IInd Civil Judge, Senior Division, Indore in Civil Suit No.198-A/2023 (Smt.
Varsha Verma/Vidhyarthi Vs. Public at Large) whereby the learned trial
Court dismissed the appellant/plaintiff's suit for death declaration of her son
Lohit.
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3. The crux of the matter is that the appellant had instituted the suit
for declaration of civil death of her son Lohit under the provisions of Order
VII Rule 1 of CPC. It was pleaded that the appellant was married to Surendra
Vidyarthi on 22.06.1978 in Indore. Out of this wedlock, the appellant had
two daughters namely Shubhangi (date of birth 22.04.1976), Lavina (Date of
Birth is 03.05.1981) and a son Lohit (Date of Birth is 02.10.1985). Further, a
flat No. 201 Shiv Sampada Apartment N 47 Anup Nagar, Indore was
purchased by the appellant from earlier owner Mrs. Meeta Menda W/o
Ashok Menda, R/o N.-47, Anup Nagar, Indore through a registered sale deed
dated 07.01.2012 (Annexure-C/1). The above mentioned flat No. 201, Shiv
Sampada Apartment, N.47 Anup Nagar Indore is the subject matter of the
suit, (hereinafter referred as to "suit flat"). To purchase the said property, the
appellant had also taken a loan from LIC Housing Finance Limited in the
name of herself and her son Lohit. The said loan has been repaid by the
appellant.
4. It was also pleaded in the suit that appellant's son Lohit left home
in the year 2014 after being unmarried and involved in a love affair. Despite
searching for him by the appellant and his family member, Lohit could not
be traced. Meanwhile, in the month of June 2016, some people came to the
plaintiff's residence and told her that his son has left with a muslim lady. Due
to which, those people harassing and threatening the appellant in various
ways. The appellant made a missing report with the police authorities on
20.06.2016, but there is no trace of son Lohit since 2016.
5. According to the plaint, eight years have passed since Lohit left
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home and still no information has been received about Lohit. The appellant
has reasonable apprehension that some incident or accident has happened
due to the love affair of her son Lohit with a Muslim girl or perhaps he is not
alive.
6. In the area where suit flat is situated, gradually houses have been
built by the people of Muslim community. The appellant has started feeling
insecure in coming and going to suit flat with her young daughters and old
husband. It has become very difficult for the appellant to live in suit flat. In
these circumstances, the appellant wants to sell the suit flat but since the suit
flat is in the joint name of the appellant and her son Lohit, the appellant is
not able to sell the suit flat.
7. It was also pleaded that the financial strength of the appellant and
her family is not very good. The appellant wants to sell the said flat to
purchase property at some other place by selling the suit flat. The appellant's
son Lohit has been missing for the last 8 years. Therefore, there is no
information and possibility of his survival. In such a situation, due to lack of
information about the appellant's son for a long time, after all possible
efforts, the appellant's family has also accepted that the appellant's son Lohit
has died, hence, the suit was filed for declaration of civil death of the
appellant's son Lohit in which "Sarvasadharan" was made a party as a
defendant.
8 . Learned trial Court ordered on 08.02.2023 for publication of
interested party as defendant in the suit, but no one was appeared for the
defendant, consequently, learned trial Court decreed the suit by judgment
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and decree dated 22.10.2024. The appellant challenged the aforesaid
judgment and decree dated 22.10.2024 under Section 96 of CPC. The
appellant also submitted written arguments before the first Appellate Court
and the learned first Appellate Court vide judgment and decree dated
29.03.2025, dismissed the appeal, being aggrieved by the said judgment,
present appeal is preferred.
9. It is argued by learned counsel for the appellant that learned
Courts below passed the judgment and decree only on the ground of
prematurity. The learned First Appellate Court dismissed the appeal only on
the ground that the suit was filed prematurely, whereas it is an established
principle of law that a suit cannot be dismissed on the ground of prematurity
alone and even if the suit was filed prematurely, during its pendency, the
time period required under Section 108 of the Indian Evidence Act, 1872 (in
short "the Act, 1872") [Now, Section 105 of the Bhartiya Shakshya
Adhiniym, 2023 (hereinafter to be referred as "the Adhiniyam, 2023")] had
expired and 7 years had passed. In such a situation, the learned First
Appellate Court could have accepted the appeal on the grounds and reasons
of completion of more than 7 years on the date of judgment, while
safeguarding the objective of justice. It is further argued that the settled
principle of law that law and procedure are made for the help and
convenience of mankind, and the procedure cannot be used to strangle
substantial justice by differentiating between means and ends. The learned
First Appellate Court has caused grave harm to the law by not accepting the
suit and dismissing the appeal on the ground of prematurity only because the
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suit or proceedings had matured after the prescribed time of 7 years while the
case was pending before the First Appellate Court.
10. Learned Courts below have also not considered the documents
viz. a copy of registered sale deed dated 07.01.2012 (Ex.-C/1), statement of
loan (Ex-P/2) and written complaint dated 20.06.2016 made to the office of
Inspector General of Police Indore (Ex.-P/3) annexed by the appellant.
Therefore learned court committed great error of Law and fact by not
considering the same. The findings given by the learned Courts below in
respect of presumption made under Section 108 of the Act, 1872 regarding
declaration of civil death is a rebuttable presumption of law and
the presumption made under this section is not mandatory. On these grounds,
it is prayed that judgment and decree passed by learned first Appellate Court
is liable to be rejected.
11. Heard learned counsel for the appellant and perused the record.
1 2 . The appellant has made the general public as party/defendant
and, in this regard, notice was published through a public advertisement in
Dainik Bhaskar, a newspaper in circulation in Indore District dated
22.02.2023, after the notice was published vide order of Trial Court dated
08.02.2023 for appearance of the defendant, but no person has shown his/her
willingness to become a party as defendant. Therefore, ex-parte order was
passed by the Trial Court. In the First Appellate Court, vide order dated
21.01.2025, learned Sessions Court has also proceeded ex-parte and passed
the judgment as mentioned above. Therefore, the present appeal is being
decided without issuance of notice as ex-parte.
13. Considering the circumstances of the case, the question of law
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arises whether the Trial Court and the First Appellate Court were justified in
dismissing the suit on the ground of prematurity, or they should have decided
the suit on its own merits after it had matured ?
14. Another question in this appeal which is to be considered by this
Court is whether the Courts below erred in law and jurisdiction in dismissing
the suit by misapplying Section 108 of the Act, 1872 (Now, Section 105 of
the Adhiniyam, 2023) and erred by not appreciating uncontroverted oral as
well documentary evidence in ex-parte proceedings ?
15. Section 108 of the Act, 1872 (Section 105 of the Adhiniyam,
2023) reads thus :-
"108. Burden of proving that person is alive who has not
been heard of for seven years - [Provided that when] [Substituted
by Act 18 of 1872, Section 9, for "When".] the question is whether
a man is alive or dead, and it is proved that he has not been heard
of for seven years by those who would naturally have heard of him
if he had been alive, the burden of proving that he is alive is 2
[shifted to] the person who affirms it."
16. In terms of the extracted provision, if it is established that a
person has not been heard of for more than seven years by those who would
naturally have heard of him if he had been alive, the burden of proving that
the person is alive is on the person who affirms it. In other words, if a person
has not been heard of for more than seven years by those who would have
naturally heard of him if he had been alive, in the absence of any materials to
show that he is alive, he can be presumed to have been dead. In the case at
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hand, the son - Lohit has not been heard of during since 2016 by the
appellant or any by any other relatives.
17. At the outset, it is evident from the record that the appellant
instituted the suit seeking declaration of civil death of her son Lohit, who has
been missing since the year 2014. The suit was founded upon pleadings
supported by oral and documentary evidence, including the testimony of the
appellant/Varsha herself (P.W.-1), Surendra, father of the missing
person/Lohit (P.W.-2), Rajesh Khandelwal (P.W.-3) and Subhangi, sister of
Lohit (P.W.-4), In their statements, all of them have deposed that Lohit is
missing since 2014 and has not been heard since then. Even after making all
reasonable efforts by the appellant and other family members, he could not
be found.
18. In para 21 of the order of learned Trial Court, it has been stated
that the appellant had not lodged First Information Report after filing missing
report. Here, it is worth to be mentioned that the procedure for grant of
hearship certificate shall be consistent, but the same shall not result in
injustice to the parties. In the case at hand, although, no explanation was
offered by the appellant for not lodging the FIR in connection with missing
of son Lohit, but the guardian always expected bonafide that he/son would
come back after sometime, owing to the conduct for not lodging FIR with the
police in a case of this nature, the family of the appellant cannot be blamed.
If the family cannot be found fault with for having not lodged the FIR, the
denial of presumption of death of any person who has not been heard from
more than seven years, would be certainly arbitrary, so long as the family
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members, relatives or police authority do not affirm that the missing
person/Lohit is alive.
19. On this aspect, the following excerpt in the case of Mariyamma
Samuel Vs. State of Kerala, 2012 KER 18686, made by High Court of
Kerala is worth to be quoted here :-
"........that is a case where the person missing was
declared as a deserter by the Army. Another learned
Judge of this Court in W.P(C) No. 24613/2006 applied
the ratio of that decision for granting compassionate
employment to the dependent of a person who was
missing similarly. Of course, there also was a First
Information Report. But, I do not think that registration
or non-registration of a First Information Report will be
fatal to the case of the petitioner. The petitioner has
reported the missing of her husband to the police, the
police had made investigation pursuant thereto and the
police have issued Ext.P1 certificate stating that despite
investigation made in that regard, the whereabouts of
K.M. Samuel could not be ascertained. Once a
complaint relating to missing of a person is filed before
the police, it is for the police to file a First Information
Report and do whatever is necessary. The petitioner
does not have any control regarding the
same. Therefore, if a distinction is to be made in respect
of identical circumstances based on whether FIR has
been registered or not, it would result in injustice to the
petitioner for no fault of hers. I am of opinion that the
ratio of the decisions relied on by the petitioner would
be equally applicable to a case where a First
Information Report has not been registered also, if it is
reasonably certain that the person went missing and he
has not been heard of for more than seven years."
20. In this judgment High Court of Kerala has made observation that
non-registration of an FIR cannot be deprived of the appellant from claiming
any benefit, as reporting the missing person is sufficient and further action
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lies with the police. When, it is reasonably established that a person has been
missing and unheard of for over seven years, the legal principles applicable
in similar cases apply equally, and denying relief on the sole ground of
absence of an FIR would cause injustice. In the case at hand, the son Lohit of
the appellant / Smt. Varsha has been missing since 2014 and appellant
alongwith family members made all efforts to find out him. Also, a missing
report dated 20.06.2016 (Annexure-P/3) in respect of son of the appellant
/Lohit was made with the office of Dy. Director General of Police, Indore.
21. From the aforesaid, it is well established that son/Lohit of Smt.
Varsha /appellant has been missing from 2014 and reported to be missing
with Police Authorities on 20.06.2016, that means, at the time of filing suit
before Trial Court, i.e. 6 years, 7 months and 19 days have been lapsed and
at the time of filing of present appeal i.e. 15.04.2025, the period of almost 11
years has been passed.
22. The approach adopted by the Courts below in dismissing the suit
and appeal on the ground of prematurity is contrary to law, particularly when
the statutory period of seven years had admittedly expired during the
pendency of the proceedings. The refusal to take judicial notice of
subsequent events has resulted in failure to exercise jurisdiction vested in
them and has defeated the ends of justice. Thus, learned Trial Court as well
as learned First Appellate Court were not justified in dismissing the suit on
the ground of prematurity. Once the cause of action had matured during the
pendency of the proceedings, the Courts ought to have adjudicated the suit
on its merits rather than non-suiting the appellant on a technical ground. The
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dismissal of the suit as premature was, therefore, unsustainable in law.
Hence, the questions of law, as aforesaid are hereby answered in affirmative.
23. The impugned judgment and decree dated 29.03.2025 passed by
the XIIth Additional District Judge, Indore in Regular Civil Appeal No.
20/2025 and the judgment and decree dated 22.10.2024 passed by the IInd
Civil Judge, Senior Division, Indore in Civil Suit No. 198-A/2023 are liable
to be and are hereby set aside.
24. The suit filed by the appellant stands decreed, and it is declared
that Lohit, son of the appellant, shall be presumed to be civilly dead in terms
of Section 108 of the Act, 1872 (Now Section 105 of the Adhiniyam, 2023).
No order as to costs.
(ALOK AWASTHI)
JUDGE
Vindesh
