Sri Jayappa vs Smt Lakshmamma
2022 Latest Caselaw 5993 Kant

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

        DATED THIS THE 4TH DAY OF APRIL, 2022

                           BEFORE

THE HON'BLE Dr. JUSTICE H.B.PRABHAKARA SASTRY

       WRIT PETITION No.33725 OF 2016 (GM-CPC)

BETWEEN:

Sri. Jayappa
Since dead by his LRs.

1. Sri. Rajanna
S/o. Late Jayappa,
Aged about 45 years,

2. Sri. Muniraju,
S/o. Late Jayappa,
Aged about 40 years,

Both the petitioners are
Residing at Hariharapura Village,
Kasaba Hobli,
Chikkaballapura Taluk and District-562101.
                                             ..   Petitioners

(By Sri. Manjunatha, K.N., Advocate)

AND:

1. Smt. Lakshmamma,
W/o. Late Jayappa,
Aged about 60 years,

2. Sri. Ravi Kumar,
S/o. Late Jayappa,
Aged about 38 years,
                                                      W.P.No.33725/2016
                                   2


All the respondents
are residing at
Hariharapura Village,
Kasaba Hobli,
Chikkaballapura
Taluk and District-562101.
                                                     .. Respondents

(By Sri.V. Shivakumar, Advocate for R-1 & R-2)

                               ****
      This Writ Petition is filed under Article 227 of the
Constitution of India, praying to issue writ of certiorari quashing
the order passed by the 1st Additional District and Sessions Judge
at Chikkaballapura in R.A.No.16/2014, interim order dated
04-06-2016 on I.A.No.1 filed under Section 75(e) Order 26 Rule
10-A read with Section 151 of the CPC and Section 45 of the
Indian Evidence Act, as per Annexure A and consequently
dismiss the application filed by the respondents under Section
75(e) Order 26 Rule 10-A r/w. 151 of CPC and Section 45 of the
Indian Evidence Act filed by the respondents; etc.

      This Writ Petition coming on for Preliminary Hearing in 'B'
Group, through Physical Hearing/Video Conferencing Hearing,
this day, the Court made the following:

                             ORDER

The present respondents as plaintiffs in

O.S.No.281/2006, in the Court of the learned Additional

Senior Civil Judge and Chief Judicial Magistrate,

Chickballapur, (hereinafter for brevity referred to as "the

Trial Court") had lost their suit for partition and separate

possession, which made them to prefer an appeal in W.P.No.33725/2016

R.A.No.16/2014, in the Court of the learned District and

Sessions Judge at Chickballapur (hereinafter for brevity

referred to as "the first appellate Court").

2. The present petitioners were the defendants in

the suit, as such, they are the respondents in the first

appellate Court. During the pendency of the regular appeal,

the appellants therein who are the respondents herein filed

an application, i.e. I.A.No.1 under Section 75(e) Order

XXVI, Rule 10A read with Section 151 of the Code of Civil

Procedure, 1908, (hereinafter for brevity referred to as "the

CPC") and under Section 45 of the Indian Evidence Act,

1872, seeking a direction to respondents No.2 and 3 therein

to furnish their blood samples for enabling the DNA testing

with appellant No.2.

3. The first appellate Court, by its order dated

04-06-2016, while allowing the said I.A.No.1, directed the

respondents No.2 and 3 before it to appear before the Court

to give their sample blood. In the same order, the Medical

Officer from the District Hospital was also directed to be W.P.No.33725/2016

present in the Court with suitable medical instruments to

collect the blood sample. Aggrieved by the same, the

respondents No.2 and 3 in the first appellate Court have

preferred this writ petition.

4. The argument of the learned counsel for the

petitioners (defendants) is that, the plaintiffs in the original

suit have utterly failed to establish their relationship with

the deceased Jayappa, the father of respondents 2 and 3,

as such, now they cannot maintain the present application,

compelling the respondents No.2 and 3 to give the sample

of their blood.

In his support, the learned counsel for the petitioners

also relied upon two decisions of the Co-ordinate Bench of

this Court in the case of Hanumappa Vs.Yallakka and

others reported in 2014 (4) AKR 402 and Rajanaika Vs.

Umesh and another reported in 2016 (2) AKR 805.

5. Learned counsel for the respondents herein

(plaintiffs) in his argument submitted that, the plaintiff No.1 W.P.No.33725/2016

is the second wife of late Sri. Jayappa and plaintiff No.2 is

born to plaintiff No.1 through the said deceased

Sri. Jayappa. Though the plaintiffs have placed sufficient

oral and documentary evidence before the Trial Court to

establish that they are the legal representatives of the

deceased late Sri. Jayappa, however, since the Trial Court

failed to appreciate the evidence placed before it in its

proper perspective, the plaintiffs, as appellants in the

regular appeal were compelled to file the application under

consideration, as such, their application came to be filed

and allowed by the first appellate Court, which does not

warrant any interference by this Court.

6. In Hanumappa's case (supra), a co-ordinate bench

of this Court, in relation to compelling the parties to

undergo a DNA test in a civil litigation, was pleased to refer

to several decided cases and in para-6 of its judgment, was

pleased to observe as follows:

"6. In the light of the above decisions of the apex court, it may be said that the following legal position emerges:

W.P.No.33725/2016

a) That parties to a civil suit cannot be subjected to DNA Analysis as a matter of course,

b) Whenever applications are made with a prayer for such a test or analysis, by way of a roving enquiry the same should not be entertained; It is for the parties to place evidence in support of their respective claims and it is only in deserving cases that such a measure can be resorted to;

c) In cases where the father denies paternity, he must establish a strong prima facie case of "non access" in order to dispel the presumption arising under Section 112 of the Evidence Act, 1872. The burden of proof in that regard should be higher than the standard of preponderance of probabilities - it need not however, be proof beyond reasonable doubt;

d) The Court must examine the possible consequence of such a test, especially in cases involving disputed paternity, having the effect of branding a child as a bastard and the mother as an unchaste woman;

e) A party to a civil case cannot be compelled to subject himself or herself to a test or analysis;

f) An order by a court directing a party to submit to a test would not however, be in violation W.P.No.33725/2016

of the right to personal liberty under Article 21 of the Constitution of India;

g) If on consideration of all aspects, if a court has passed an order against a party to submit himself to medical examination and such party refuses to so submit himself - the court may draw an adverse inference against him."

7. In Rajanaika's case (supra), a co-ordinate bench

of this Court, after referring to the judgment of the Hon'ble

Apex Court in lGoutam Kundu Vs. State of West Bengal and

another [AIR 1993 SC 2295], where the Hon'ble Court has

laid down certain principles regarding DNA testing, was

pleased to observe that, though the issue involved in the

matter before it was about the paternity of the child,

however, prima facie fact of solemnisation of marriage of

parents since has not been proved, the mere statement

made by the villagers about the marriage cannot be a

sufficient ground to permit a DNA test.

Though the facts and circumstances in the above

referred two cases varies from the case on hand, however, W.P.No.33725/2016

what emerges from the above judgment is that, an order to

undergo DNA test cannot be ordered in a routine manner

unless the facts and circumstances of the case warrants for

the same.

8. Our Hon'ble Apex Court, in the

case of Ashok Kumar Vs. Raj Gupta and others reported

in (2022) 1 Supreme Court Cases 20, was pleased to

observe that, for ordering for a DNA test, there must be an

"eminent need" in the matter and the discretion of Court in

directing DNA test must be exercised after balancing the

interests of the parties and whether a DNA test is needed

for a just decision in the matter and such direction

satisfies the test of "eminent need". It further observed

that whether a person can be compelled to provide a

sample for DNA test can also be answered considering the

test of proportionality, as the right to privacy has been

declared a fundamental right in India. Further, in the very

same judgment, the Hon'ble Apex Court also held

that, in the circumstances, where other evidence W.P.No.33725/2016

is available to prove or dispute the relationship, the Court

should ordinarily refrain from ordering blood tests like DNA

test against the will of the party who is to be subjected to

such test. It is the burden on a litigating party to prove his

case adducing evidence in support of his plea and Court

cannot compel the party to prove his case in the manner

suggested by the contesting party, subject to drawing of

adverse interference in the facts and circumstances so

warranting the case.

9. In the instant case, no doubt, it is not the

defendants (petitioners herein) who either suggested or

compelled the plaintiffs to undergo the DNA test. On the

other hand, it is the plaintiffs themselves who have

volunteered to undergo DNA test, for which, they have

made an application seeking a direction to the respondents

No.2 and 3 in the first appellate Court to give their sample

blood. However, even according to the learned counsel for

the respondents (plaintiffs), sufficient materials, both in the

form of oral and documentary evidence have been placed W.P.No.33725/2016

by the plaintiffs in the Trial Court, which themselves were

sufficient to decide the paternity of plaintiff No.2 with one

Sri. Jayappa, who is said to be the father of the respondents

No.2 and 3, in the first appellate Court. According to the

said learned counsel, however, the Trial Court failed to

appreciate these aspects in their proper perspective.

10. A perusal of the Trial Court judgment would go to

show that, the plaintiffs, in support of their plaint, apart

from examining the two witnesses as PW-1 and PW-2, have

also got produced and marked documents as exhibits P-1 to

P-25 including the genealogical tree, RTC extracts, certified

copy of the Partition Deed, wedding card, photos, Transfer

Certificate, ration card, voters ID card etc. Thus, when,

according to the plaintiffs, they have placed sufficient

materials before the Trial Court to prove their legal heir-

ship with one Sri Jayappa and that the Trial Court has failed

to appreciate the oral and documentary evidence in their

proper perspective, the endurance of the appellants

(plaintiffs) must be to convince the first appellate Court, W.P.No.33725/2016

pointing out the error, if any, committed by the Trial Court

in appreciation of the said evidence, but not finding some

way of securing or attempting to procure some more

evidence in their favour, by compelling the unwilling

respondents to give their sample blood for DNA testing.

However, the first appellate Court in its impugned order,

without finding the existence of "eminent need", has

stated that, since the plaintiff No.2 intends to prove that he

is the son of late Sri. Jayappa, the respondents No.2 and 3

before it who are sons of the said late Sri. Jayappa may be

directed to give their blood sample for DNA testing. With

such an observation, it proceeded to allow the I.A. filed by

the plaintiffs. Since the said reasoning of the first Appellate

Court is not convincing and appears to have been ordered

to undergo DNA test in a mechanical manner without

searching for any "eminent need" in the case, the said order

deserves to be set aside.

Accordingly, the writ petition stands allowed.

W.P.No.33725/2016

The impugned order dated 04-06-2016 passed on

I.A.No.1 in R.A.No.16/2014, by the learned District and

Sessions Judge at Chickballapur (Annexure A) stands

quashed.

Consequently, the said I.A.No.1 filed under Section

75(e) Order XXVI, Rule 10A read with Section 151 of the

Code of Civil Procedure, 1908 and Section 45 of the Indian

Evidence Act, 1872, also stands dismissed.

Sd/-

JUDGE

BMV*