J.B. Pardiwala, J.

This First Appeal under Section 96 of the C.P.C. is at the instance of the original plaintiff and is directed against the judgment and decree dated 28th March 2016 passed by the City Civil Judge, City Civil and Sessions Court No.5, Ahmedabad City in Regular Civil Suit No.3187 of 2013.

2. The facts giving rise to this First Appeal are in a very narrow compass.

2.1 The husband of the appellant herein viz. Shri Himmatbhai Ramanbhai Purabiya, was serving in the Health Department of the Ahmedabad Municipal Corporation as a permanent 'Safai Kamdar'. The husband of the appellant, all of a sudden went missing from 22nd August 2006. On 1st September 2006 a Janvajog entry no.170 of 2006 came to be registered in this regard at the Ellisbridge Police Station. Despite best of the efforts, the whereabouts of the husband of the appellant could not be known. It appears that the husband of the appellant was the sole earning member of the family. With the sudden disappearance of the husband, the appellant and her family has landed-up in lot of difficulties. The Corporation is inclined to grant compassionate appointment to the appellant, but the only thing coming in the way of Corporation is that it is not clear whether the husband is dead or not. The compassionate appointment can be given to the wife only on demise of the husband.

2.2 In such circumstances referred to above, the appellant hereinabove preferred the Special Civil Suit No.3187 of 2013 for a declaration that her husband is deemed to be dead as his whereabouts are not known past more than seven years. The trial Court framed the following issues vide Exh.10.

"[1] Whether the plaintiff proves that her husband missing and dead as alleged and to affer job she filled present suit bonofiedly ?

[2] To whar relief, if any, the plaintiff is entitled for ?

[3] What order and decree ?"

2.3 The issued framed by the trial Court came to be answered as under :-

(1) Partly in the affirmative.

(2) Negative.

(3) As per the final order.

3. It appears that the suit came to be dismissed by the Court below on account of a serious misconception of fact as well as law. The issue before the Civil Court was not with regard to the compassionate appointment. The issue before the Civil Court was with regard to a declaration that the husband of the appellant is deemed to be dead. This part of the relief has been granted by the trial Court. However, ultimately, the suit came to be dismissed on account of non-joinder of the necessary party i.e. the Ahmedabad Municipal Corporation. According to the trial Court, the relief with regard to the compassionate appointment could not have been granted in the absence of the Corporation before the Court.

4. Ms. Panchal, learned counsel appearing for the appellant is right in her submission that there was no need for the trial Court to confuse itself with issue of compassionate appointment. The suit could have been allowed with the declaration that the husband is deemed to be dead, and then on the basis of such legal declaration, the appellant could have prayed for compassionate appointment before the Corporation.

5. As noted above, the issue no.1 has been answered partly in the affirmative. The findings recorded by the trial Court in paragraph nos.12 and 13 are relevant and reproduced as under :-

"(12) The evidence in cross-examination of the Plaintiff has been recorded by A.G.P. Mr. Alaybhai Bhatt vide Exhibit-10, wherein she states that, mother is alive and she lives with the elder brother of her husband. Her husband has other brothers and sisters. My husband is missing and I myself lodged the complaint regarding the same. Public notice was also given in the newspaper to trace her husband but she has no evidence regarding the same. Not only that, the Plaintiff does not even state as to when was the public notice was given. It appears from the record that, the complaint was made before the police and though the police attempted to trace out Himmatbhai, he could