Sri Vemanna @ Gunda vs Sri M Papanna @ Papaiah
2022 Latest Caselaw 8832 Kant

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     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

         DATED THIS THE 15TH DAY OF JUNE, 2022

                        BEFORE

 THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM

       WRIT PETITION NO. 10318 OF 2022 (GM-CPC)

BETWEEN:

SRI VEMANNA @ GUNDA
S/O M PAPANNA @ PAPAIAH
AGED ABOUT 63 YEARS
R/AT NO.46
RAMAKRISHNAPPA STREET
CHUNCHANAGHATTA MAIN ROAD
BEERESHWARA NAGAR
BANGALOE -560 060                    ...PETITIONER

(BY SRI. LEELADHAR H.P., ADVOCATE)

AND

1.     SRI M PAPANNA @ PAPAIAH
       S/O LATE MUNISWAMAPPA
       AGED ABOUT 85 YEARS
       R/AT NO. ARUNODAYA NILAYA
       MARUTHI LAYOUT, 1ST CROSS,
       BEHIND POLICE QUARTERS
       NEAR SANJANA HOSPITAL
       MALUR TOWN, MALUR TALUK
       KOLAR DISTRICT-562160

2.     SMT HEMAVATHI
       D/O SRI M PAPANNA @ PAPAIAH
       W/O SHIVA PRASAD
       AGED ABOUT 61 YEARS,
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     R/AT NO.24
     METAL CHENGA REDDY BEEDI
     NAGAPALYAM, PUNGANUR VILLAGE
     CHITTOOR DISTRICT
     ANDHRA PRADESH PIN-517001

3.   SMT YESHODAMMA
     D/O SRI M PAPANNA @ PAPAIAH
     W/O MANI
     AGED ABOUT 59 YEARS
     R/AT NO.4 RAJAMMA GARDEN
     RAJKUMAR ROAD
     JARAGANAHALLI, J.P.NAGAR 6TH PHASE
     BENGALURU -560 078

4.   SMT MANGAMMA
     D/O SRI M PAPANNA @ PAPAIAH
     W/O SEENAPPA
     AGED ABOUT 52 YEARS
     R/AT OLD NO.35
     NEW NO.4, ANJANADRI NILAYA
     1ST CROSS, 2ND MAIN ROAD
     PUTTANA KANAGAL ROAD
     HULIMAVU GATE
     BENGALURU -560 076

5.   SRINIVASA
     S/O SRI M PAPANNA @ PAPAIAH
     AGED ABOUT 50 YEARS,

6.   SMT RENUKA
     D/O SRI M PAPANNA @ PAPAIAH
     AGED ABOUT 48 YEARS,

7.   SMT SAROJAMMA
     W/O SRI M PAPANNA @ PAPAIAH
     AGED ABOUT 74 YEARS,

     SL.NO.5 TO 7 ARE R/AT ARUNODAYA NILAYA
     MARUTHI LAYOUT
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     1ST CROSS, BEHIND POLICE QUARTERS
     NEAR SANJANA HOSPITAL
     MALUR TOWN MALUR TALUK
     KOLAR DISTRTICT
                                    ...RESPONDENTS
(BY MS. RAKSHITHA D.J., ADVOCATE FOR R1
V/O DATED 15/06/2022 NOTICE TO R2-R7 ARE
DISPENSED WITH)

     THIS WRIT PETITION IS FILED UNDER ARTICLE 227
OF THE CONSTITUTION OF INDIA PRAYING TO CALL FOR
RECORDS IN OS.NO.9166/2013 PENDING ON THE FILE OF
THE XX ADDL.CITY CIVIL AND SESSIONS JUDGE,
BANGALORE CCH-32 AND QUASH THE ORDERS DATED
18.04.2022 PASSED BY THE XX ADDL.CITY CIVIL AND
SESSION      JUDGE,      BANGALORE(CCH-32)        IN
OS.NO.9166/2013 ON IA NO.16 U/S XXVI RULE 10(A) R/W
SECTION 45 OF THE INDIAN EVIDENCE ACT AND UNDER
SECTION 151 OF CPC SEEKING FOR DNA TEST UNDER
ANNEXURE-A AND ETC.,

     THIS WRIT PETITION COMING ON FOR PRELIMINARY
HEARING THIS DAY, THE COURT MADE THE FOLLOWING:

                       ORDER

This captioned writ petition is filed by plaintiff

feeling aggrieved by the order of the learned Judge

passed on I.A.No.XVI which was filed under Order

XXVI Rule 10A of Code of Civil Procedure read with

Section 45 of Indian Evidence Act.

2. The present petitioner claims to be the son of

first respondent/defendant No.1. Petitioner has

instituted a suit for partition and separate possession

in O.S.No.9166/2013. The petitioner has specifically

pleaded that one Smt.Dhanamma was the wife of

defendant No.1 and in the wedlock they were blessed

with three children viz., Vemanna (plaintiff),

Hemavathi (defendant No.2) and Yeshodamma

(defendant No.3). The plaintiff also specifically

pleaded that Sarojamma is claiming to be the second

wife of first defendant. On this set of pleadings,

petitioner sought for partition and has prayed to allot

his legitimate share in the suit schedule property.

3. The first defendant, on receipt of summons

tendered appearance and contested the proceedings

by filing written statement. The first defendant has

stoutly denied the very status of son. He has also

denied that he was married to one Dhanamma. In his

written statement at paragraph-3, first defendant

specifically pleaded that defendant No.7 is his legally

wedded wife and is blessed with three children in the

wedlock with defendant No.7.

4. Since the paternity of plaintiff was questioned

by first defendant, petitioner has led in ocular and

documentary evidence and has also produced school

records to demonstrate that he is the son of first

defendant. The first defendant having denied the

paternity of plaintiff herein, however, has not chosen

to enter the witness box and has given Power of

Attorney through one of the sons born through

defendant No.7. It is in this background, the

petitioner has come up with this application. The

reason to file present application is first defendant

having disputed the paternity, has not chosen to enter

the witness box and therefore, petitioner intends to

seek a DNA test to establish his paternity. The said

application is rejected by the learned Judge. While

rejecting the application, the learned Judge has come

to a conclusion that petitioner to establish his

relationship with first defendant has led in evidence.

Learned Judge has also taken judicial note of the fact

that first defendant has not chosen to enter the

witness box and therefore, has observed that the

consequence would follow. Consequently, the

application is rejected.

5. Heard the learned Counsel for the petitioner

and learned Counsel appearing for respondent No.1.

6. It would be useful to cull out paragraph-20 of

the order under challenge, which reads as under:

"The Hon'ble High Court of Karnataka while disposing writ petition No.2183/2019 observed that, if the application is filed this court has to consider the same in the light of evidence on record. In this case no doubt there is a burden on plaintiff to prove that he is a son of defendant

No.1. For that he led his evidence to the best of his capacity. He may also take the advantage of absence of personal evidence of defendant no.1 in that regard. The counsel for plaintiff argued that already the evidence on both side concluded and hence if is necessary to hold a DNA test of blood samples of plaintiff and defendant no.1 to ascertain the blood relation between them. He relied an authority reported in 2018 AKR(89) in the matter of P.S. Shivakumar V/s. P.K.

subbarayappa and others, wherein it has been held that, even after concluding the evidence on both sides, if the authority remains in the evidence regarding the blood relation, then DNA test may be ordered. In this case there is no any such authority so far arose. Hence the authority relied by the counsel for plaintiff is not applicable to this case. Therefore this court is of the opinion that there is no need of DNA test report for ascertaining the relation of plaintiff with defendant no.1. Accordingly my answer to the point no.1 is in negative."

7. If the observations made by the learned Judge at

paragraph-20 are examined, this Court is of the view

that the learned Judge has taken into consideration all

significant details. The learned Judge was of the view

that the evidence on record would suffice to decide

the lis between the parties.

8. The learned Judge has also observed that if

the first defendant has not chosen to enter the

witness box, the petitioner can take advantage of the

said fact.

9. The learned Judge while rejecting the

application at paragraph-20 has held that petitioner

has led in evidence to prove that he is the son of first

defendant to the best of his capacity. This

observation is made by the learned Judge by taking

cognizance of the ocular and documentary evidence

which is already placed on record. The Court has

declined to exercise discretion only after balancing the

interest of the parties and on due consideration of

evidence on record. It is a trite law that Court has

considered diverse aspects, including presumption

under Section 112 of Evidence Act; pros and cons of

such order and the test of "eminent need". If learned

Judge is of the view that it is possible for the Court to

reach truth without use of DNA test, this Court is not

inclined to interfere with order under challenge.

10. The first respondent having disputed the

paternity of plaintiff has not chosen to enter the

witness box. It is more than a trite that if the initial

burden is discharged by plaintiff and the onus shifts

on the first defendant, the same has to be decided by

first defendant by leading ocular and documentary

evidence. For the reasons best known to first

defendant, he has not chosen to enter the witness

box. If that is so, the consequence would follow and

the learned Judge while deciding the matter on merits

is bound to take cognizance of all these significant

details. Even otherwise, the learned Judge has

already observed in the course of the order that the

consequence would follow which is found in

paragraph-20 of the judgment.

11. Therefore, I do not find any infirmities in the

order under challenge. There is no error made out.

Accordingly, the writ petition is dismissed.

Sd/-

JUDGE

JT/-