Judgment:
Shrikant Tripathi, Member (J):
1. Heard Mr.T.R.Renjith for the applicant and Mr. Tojan.j.Vathikulam for the respondents and perused the record.
2. The applicant K.R.Santhini, who is the wife of T.Veeranna, ex Sailor No.145746-T, claims the civil death of her husband and in consequence thereof she further claims family pension.
3. According to the Original Application, the husband of the applicant was not known since 2002, so as per Section 108 of the Indian Evidence Act, his civil death was required to be presumed. But the respondents had not done so, so, she filed the instant Original Application.
4. It is also noteworthy to mention that the applicant had earlier filed Writ Petition No.18509 of 2005 in the Hon'ble High Court of Kerala, at Ernakulam, which was disposed of on 1st of August, 2005 with the direction to the applicant to approach the Civil Court for declaration of the factum of civil death of her husband. Accordingly, she filed O.S.No. 80 of 2011 in the Court of Munsiff at Ernakulam, which was dismissed on 7th of March 2011 on the ground that there was none impleaded as defendants, so, the declaration sought for by the applicant was not maintainable in absence of any specific defendant. The Civil Court further held that Section 108 of the Evidence Act was only a rule of evidence to be applied when a dispute come up for decision before the Court.
5. It appears that the Civil Court dismissed the suit only on the ground that there was no defendant. In our view, the proper course for the applicant was to file a suit after impleading the respondents as defendants for claiming the relief of declaration, but she did no do so, which resulted in the dismissal of the suit as not maintainable.
6. Mr.T.R.Renjith appearing for the applicant prays for and is permitted to withdraw the Original Application with the liberty to file a civil suit after impleading the respondents herein as the defendants in the suit. The Original Application is accordingly disposed of.
7. There will be no order as to costs.
8. Issue free copy of this order to both side.