Sumayya Kaira Bairagdar & Ors vs Raju @ Yusuf Bashik Ahmad Kulkarni ...
2011 Latest Caselaw 155 Bom

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                       IN THE  HIGH COURT OF JUDICATURE AT BOMBAY




                                                                                             
                                   CIVIL APPELLATE JURISDICTION
                                  WRIT PETITION NO.9626 of 2011




                                                                     
          Sumayya Kaira Bairagdar & Ors.                                        ..  Petitioners
               Versus




                                                                    
          Raju @ Yusuf Bashik Ahmad Kulkarni & Ors.                             ..  Respondents


          Mr. Venkatesh Shastry for the Petitioners
          Mr. Prashant Bhavake for the Respondent No.1




                                                       
          Mr. S.A.Mane for Respondent Nos.2 & 3

           
                                      ig        CORAM :   R.M.SAVANT, J.

                                                  DATE     :   1st DECEMBER,  2011
                                    
          ORAL JUDGMENT :
                

          1      Rule. With the consent of the parties made returnable and heard 
             

forthwith. Mr. Bhavake waives service on behalf of Respondent No.1. Mr.

S.A.Mane waives service on behalf of the Respondent Nos.2 & 3. At the

outset, the Learned Counsel Mr. Shastry appearing for the Petitioners

seeks deletion of the Respondent No.4. The Respondent No.4 is

accordingly deleted at the risk of the Petitioners.

2 The above Petition takes exception to the Order dated 17-6-2011

passed by the Learned Joint Civil Judge, Senior Division, Kolhapur, by

which Order, the Application Exhibit 72 in Special Civil Suit No.37 of

2009 filed by the Original Plaintiff for subjecting the Original Defendant

Nos.2 to 6 and the Plaintiff to the DNA test came to be allowed. The

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Plaintiff i.e. Respondent No.1 herein filed Special Civil Suit No.37 of 2009

for partition and for a declaration that the Sale Deed dated 18-9-2008

executed by the Defendants in favour of the Defendant No.7 i.e.

Respondent No.4 herein is illegal. The Plaintiff is claiming the relief on the

basis that he is the son of one Bashir Kulkarni who is the original owner of

the properties and who the plaintiff claims was his father.

3 Since the relationship between the plaintiff and the said Bashir

Kulkarni was denied by the Defendant Nos.1 to 6, the Plaintiff filed the

instant application Exhibit 72 for subjecting himself and the Defendant

Nos.2 to 6 who are the daughters of the said Bashir Kulkarni and his step

sisters, to the DNA test. The said application came to be allowed by the

impugned order dated 17-6-2011. The said order has been assailed in the

present petition, primarily on the ground that DNA test cannot be ordered

as a matter of course and that it is only if the evidence that would be

adduced is insufficient to establish the relationship between the Plaintiff

and the said Bashir Kulkarni, that the DNA test could be ordered.

Reliance was sought to be placed on the Judgment of the Apex Court

laying down the said preposition.

However, the Learned Counsel for the Respondent No.1 herein i.e.

the original Plaintiff draws my attention to the affidavits dated 23-9-2011

filed in the Trial Court in the said Suit, by the Defendant No.1 Jannat

Shaikh Bashir Ahmed Kulkarni, Defendant No.2 Summaya Kaira Bairagdar

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and the Defendant No.3 Najneen Naushad Ambekari. The said affidavits

have been filed after the impugned order was passed. By the said

Affidavits, the said Defendants have accepted the relationship between the

Plaintiff and the said Bashir Kulkarni. Whereas the Jannat Shaikh Bashir

Kulkarni has stated that the Plaintiff is her step son and is born out of the

marriage between her husband Bashir Kulkarni and his first wife Noorbi

i.e the Plaintiff's mother and therefore, accepts that the Plaintiff as her

step son. In so far as Defendant No.2 and Defendant No.3 are concerned,

they have also accepted the fact that the Plaintiff is begotten from the first

wife of their father Noorbi and the Plaintiff therefore is their step brother.

4 In my view, apart from the aforesaid fact of the filing of the

affidavits, by the said three Defendants accepting the relationship, the

DNA test could have only been ordered if the Trial Court comes to the

conclusion that the evidence on record is insufficient to prove the

relationship between the parties. In the instant case without the said

course of action being followed, straightaway the DNA test has been

ordered. The said cause of action is now required to be followed in the

light of the affidavits being filed by the Defendants as aforesaid.

5 In the light of the above, the impugned order is required to be set

aside and is accordingly set aside. In the event, the Trial Court comes to

the conclusion that the evidence on record is in sufficient to prove the

relationship, it would be open for it to direct the parties to subject

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themselves to DNA test.

6 The Petition is accordingly allowed to the aforesaid extent. Rule is

accordingly made absolute.

(R.M.SAVANT, J.)