Raju Sahu vs Sundar Sahu
2022 Latest Caselaw 1181 Chatt

                                            1



                                                                             NAFR
                HIGH COURT OF CHHATTISGARH, BILASPUR

                               FA(MAT) No. 84 of 2020

   • Raju Sahu S/o Sundar Sahu Aged About 28 Years R/o Village Katai, Tehsil
     Nawagaon, District Bemetara Chhattisgarh.

                                                                      ---- Appellant

                                     Versus

   1. Sundar Sahu S/o Sukalu Sahu Aged About 52 Years R/o Village Katai,
      Tehsil Nawagaon, District Bemetara, Chhattisgarh. (Died On 19/11/19)
      Through Lrs.

      1A. Purnima Sahu, aged about 48 years, Wd/o Sundar Sahu,


      1.B. Tekram Sahu S/o Sundar Sahu Aged About 35 Years


      1.C Raju Sahu S/o Sundar Sahu Aged About 31 Years

      1A to 1C R/o Village Madhar, Post - Khundra Para, P.S. Dharsiva, Tehsil
      And District Raipur Chhattisgarh.

   2. Phooleshwar Bai W/o Bisambar Sahu, Aged About 45 Years R/o Village
      Khandsara, Tehsil Nawagarh, District Bemetara Chhattisgarh.

                                                                 ---- Respondents



      For Appellant                     :       Shri Shobhit Koshta, Advocate

      For Respondent                    :       Ms. Deepali Pandey, Advocate


                      Hon'ble Shri Justice Goutam Bhaduri

                  Hon'ble Smt. Justice Deepak Kumar Tiwari

                              Judgment on Board


Per Goutam Bhaduri, J.

07/03/20 22

Heard.

1. The short point involved in this case is that the appellant filed a suit for

declaration to declare that he is son of Shri Sundar Sahu and was

born out of illicit relation with Respondent No. 2 namely Phooleshwar

Bai. It is not in dispute that on 19.11.2019, the learned Family Court

ordered for DNA test of Sundar Sahu, so as to find out whether

declaration can be granted or not. Unfortunately, on 19.11.2019

Sundar Sahu committed suicide. Further, it is also not in dispute that

on 03.12.2019 date was fixed before the Court to give the blood

sample. Consequently, before the date Sundar Sahu since committed

suicide, blood sample could not be collected.

2. Learned counsel for the appellant submits that consequent to death of

Sundar Sahu, the learned family court on 20.12.2019 has abated the

suit on the ground that Sundar Sahu since has died as such the

cause of action do not survive. He further submits that the order

passed by the learned Family court is completely illegal. As much as,

even after the death of Sundar Sahu on 19.11.2019, the case could

not have been abated within a short span of time i.e. 1 month on

20.12.2019. He submits that declaration of the legal character of the

appellant would be inconsequential to the fact that Sundar Sahu is

dead or not, as he could have led other evidence. He submits that,

therefore, the case needs to be remanded back to the Court below so

as to allow the appellant to lead the evidence on merits.

3. Learned counsel for the respondents vehemently opposes the argument

and submits that the appellant should have filed the application to set

aside the order of abatement before the Trial court and no appeal

would lie directly before the High court.

4. We have heard learned counsel for the parties and perused the records.

5. Order dated 20.12.2019 reads as under :-

*izfroknh dk QkSr gksus ds djus ds dkj.k izdj.k dh dk;Zokgh lekIr dh tkrh gSA

izdj.k dk ifj.kke ntZ dj vfHkys[kkxkj tek fd;k tkosA*

6. Reading of the order would show that the learned Family court has

disposed off the suit/ proceedings on the ground that the sole

defendant Sundar Sahu is dead. Admittedly, Sundar Sahu died on

19.11.2019, therefore, even under Article 120 of Limitation Act, 1963,

the period would be of 90 days to bring the legal heirs on record. In

case of delay or abatement, the delay could have been condoned, if

sufficient cause is shown and likewise abatement could have been set

aside. Herein, the order dated 20.12.2019 is not because of the fact

that the legal heirs were not brought on record but the reason is that

the sole defendant from whom the lineal parenthood was claimed as

son since died, therefore, the suit stands dismissed. This order could

not stand for the reason that legal character of the appellant/ plaintiff

could have been established by other sources of evidence other than

the blood sample of deceased alone. Simply, because of the fact that

Sundar Sahu is no more and blood sample could not be obtained for

DNA test that cannot be sole ground of evidence alone. Consequently,

the order on the face of it appears to be wrong and cannot be

sustained. Accordingly, the order dated 20.12.2019 is set aside and

the case is remanded back for adjudication afresh before the Family

Court, Bemetra. The parties are directed to appear before the Family

Court, Bemetra on 11.04.2022.

7. Accordingly, the appeal is disposed off.

                 Sd/-                                                     Sd/-


        (Goutam Bhaduri)                                   (Deepak Kumar Tiwari )

                Judge                                                  Judge

Jyoti