# Smt. Shushila Devi v. State of U.P. and others - **Citation:** (2012) 2 ILRA 1034 - **Court:** High Court of Judicature at Allahabad - **Decided:** 2012-07-13 - **Case number:** Civil Misc. Writ Petition No. 55323 of 2004 - **Bench:** Rajes Kumar - **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-shushila-devi-v-state-of-u-p-and-others-42286 - **Pages:** 3 ## Headnote Constitution of India, Article 226-Family Pension-husband of petitioner transferred from Chunar to Ballia in the year 1978-since then where-about not known-claim of family pension on presumption of civil death-authorities required the degree from Court-heldonce admittedly petitioner's husband drawn salary upto 14.06.1977-burden of proof lies who contradicted the presumptions of Civil death under Section 108 Evidence Act-direction issued accordingly. Held: Para 6 Section 108 of the Act provides that 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 2 All] Smt. Shushila Devi V. State of U.P. and others 1035 that he is alive is shifted to the person who affirms it. It is the case of the petitioner that it has not been heard by any person that her husband, Laxmi Narain Dubey is alive. Therefore, her claim that Laxmi Narain Dubey is not traceable since 1978 is dead, has to be accepted and the burden is now shifted on the other side to prove that he is still alive in view of Section 108 of the Act. ## Text 1034 INDIAN LAW REPORTS ALLAHABAD SERIES [2012 24. Thus, a person aggrieved by an order passed in the appeal under Rule 14 of the Rules, 1937 may file revision under Rule 15 of the said Rules. 25. Hence, it was open to the petitioner to file Revision under Rule 15 of the Rules, 1937 against the order dated 27.4.2007 passed by the Appellate Authority. 26. However, the present Writ Petition is pending since 2007. Affidavits have been exchanged between the parties. In the circumstances, we are of the view that it will not be appropriate to dismiss the Writ Petition on the ground of availability of alternative remedy of filing revision under Rule 15 of the Rules, 1937, i.e. the Cantonment Fund Servants Rules 1937. 27. In view of the above discussion, the Writ Petition filed by the petitioner deserves to be allowed and the order dated 27.4.2007 passed by the Appellate Authority (Annexure No. 8 to the Writ Petition ) is liable to be quashed, and the matter is liable to be remitted to the Appellate Authority for considering the Appeal of the petitioner afresh in accordance with law and keeping in view the observations made in this Judgement. 28. The Writ Petition filed by the petitioner is accordingly allowed. The order dated 27.4.2007 ( Annexure No. 8 to the Writ Petition) passed by the Appellate Authority is quashed. The matter is remitted to the Appellate Authority for considering the Appeal submitted by the petitioner afresh in accordance with law and keeping in view the observations made in this Judgement. 29. However, on the facts and in the circumstances of the case, there will be no order as to costs. --------- ORIGINAL JURISDICTION CIVIL SIDE DATED: ALLAHABAD 13.07.2012 BEFORE THE HON'BLE RAJES KUMAR, J. Civil Misc. Writ Petition No. 55323 of 2004 Smt. Shushila Devi ...Petitioner Versus State of U.P. and others ...Respondents Counsel or the Petitioner: Sri R.N.Singh Sri B.R.Singh Sri R.N.Tripathi Sri S.C.Dubey Sri S.K. Srivastava Counsel for the Respondent: C.S.C. Sri Pushpendra Singh Constitution of India, Article 226-Family Pension-husband of petitioner transferred from Chunar to Ballia in the year 1978-since then where-about not known-claim of family pension on presumption of civil death-authorities required the degree from Court-heldonce admittedly petitioner's husband drawn salary upto 14.06.1977-burden of proof lies who contradicted the presumptions of Civil death under Section 108 Evidence Act-direction issued accordingly. Held: Para 6 Section 108 of the Act provides that 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 2 All] Smt. Shushila Devi V. State of U.P. and others 1035 that he is alive is shifted to the person who affirms it. It is the case of the petitioner that it has not been heard by any person that her husband, Laxmi Narain Dubey is alive. Therefore, her claim that Laxmi Narain Dubey is not traceable since 1978 is dead, has to be accepted and the burden is now shifted on the other side to prove that he is still alive in view of Section 108 of the Act. (Delivered by Hon'ble Rajes Kumar, J.) 1. The petitioner is the widow of Laxmi Narain Dubey, who was employee in civil police. 2. The contention of the petitioner is that her husband has been transferred in the year 1973 in police station Chunar, district Mirzapur. Later on he has been transferred in Moradabad Training College and thereafter, in the year 1978 he has been transferred to Ballia and since then he is not traceable. The petitioner being wife claiming the family pension on the ground that in view of Section 108 of the Indian Evidence Act, 1872 (hereinafter referred to as the "Act") her husband is not traceable for more than seven years he is deemed to have died. When the claim of the petitioner has not been decided and the pension and other dues have not been paid, the present writ petition has been filed. 3. Counter affidavit has been filed by learned Standing Counsel. In para 11 of the counter affidavit it has been admitted that Sri Laxmi Narain Dubey was employee in the civil police. In para 11 it is admitted that as per the record he has been paid salary upto 14.06.1977. Some doubt has been raised on account of the date of birth of the son of Laxmi Narain Dubey, which was claimed to be 31.12.1983 while claiming compassionate appointment and, therefore, the petitioner has been asked to produce the order of the Court regarding the civil death. 4. Learned Standing Counsel submitted that let the petitioner may approach the Senior Superintendent of Police, Ballia for her claim and he may be directed to consider the same and pass appropriate order. 5. I have heard the submission of learned counsel for the parties. 6. Section 108 of the Act provides that 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 shifted to the person who affirms it. It is the case of the petitioner that it has not been heard by any person that her husband, Laxmi Narain Dubey is alive. Therefore, her claim that Laxmi Narain Dubey is not traceable since 1978 is dead, has to be accepted and the burden is now shifted on the other side to prove that he is still alive in view of Section 108 of the Act. 7. In view of the above, the Court is of the view that let the petitioner may file fresh representation before Senior Superintendent of Police, Ballia and he is directed to decide the claim of the petitioner within two months from the date of filing of the representation in accordance to law having regard to section 108 of the Act, by a speaking order. 8. With the aforesaid observation, the writ petition stands disposed of. --------- 1036 INDIAN LAW REPORTS ALLAHABAD SERIES [2012 ORIGINAL JURISDICTION CIVIL SIDE DATED: ALLAHABAD 18.07.2012 BEFORE THE HON'BLE ARUN TANDON, J. THE HON'BLE RAMESH SINHA, J. Criminal Misc. Writ Petition No.-13639 of 2010 Yogendra Sagar ...Petitioner Versus State of U.P. & another ...Respondents Counsel for the Petitioner: Sri Dileep Kumar Sri Rajesh Mishra Counsel for the Respondents: Govt. Advocate Sri Ashwani Kr. Awasthi Sri Bheshaj Puri Sri Manish Tewari Sri R.P. Pandey Constitution of India-Article 226-Delay in filing criminal revision-facts stated in affidavit remained uncontrovertedrejection-held-not proper instead of remanding-delay in filing revision condoned-revisional court directed to decide revision on its merit. Held: Para 15 Normally we would remanded the matter to the revisional court for reconsideration of the Section 5 application but in the facts of the case, as noticed above, we find that the statement made on oath by the petitioner had come un-controverted. He has successfully explained the reasons for the delay in filing of the revision. We, hold that Section 5 application made by the petitioner, deserves to be granted. It is, accordingly allowed. Revision filed by the petitioner shall be treated to be within time. Case law discussed: 1984 (3) SCC 46 (Delivered by Hon'ble Arun Tandon, J.) 1. We have heard Sri Dileep Kumar, learned counsel on behalf of the petitioner, learned A.G.A. on behalf of the State Authorities and Sri R.P.Pandey on behalf of complainant-respondent No.2 and have perused the record. 2. Petitioner before this Court seeks quashing of the order of the Additional Chief Judicial Magistrate., Court No.2, District Badaun dated 18.08.2009 as also the order passed by the Lower Revisional Court namely Session Judge, Badaun dated 6.7.2010 . 3. Counsel for the parties have agree that the present writ petition may be disposed of at this stage itself specifically in view of the order proposed to be passed by this Court. 4. It is not necessary for us to detail all the facts giving rise to the present petition. Facts relevant for deciding the present writ petition alone are being stated, which are as follows: 5. On the basis of protest petition, filed by Kuldeep Kishore Sharma, respondent No.2 and the statements made by Jyoti Sharma, prosecutrix under Section 200 Cr.P.C., as well as by Ramesh Chand Sharma, P.C. Sharma, Dharmendra Sharma, the Magistrate has summoned the petitioner namely Yogendra Sagar under Section 376(g) I.P.C. and other co-accused namely Tajendra Sagar and Neeraj Sharma alias Meenu under Section 366, 376(g) I.P.C. vide order dated 18.8.2009.