Karnataka High Court
Uggesh S/.Oi. Chikka Harikantra vs Sri.Vasu S/O. Chikka Tandel on 20 February, 2024
Author: V.Srishananda
Bench: V.Srishananda
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NC: 2024:KHC-D:4189
MSA No. 100006 of 2019
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 20TH DAY OF FEBRUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE V.SRISHANANDA
MISCELLANEOUS SECOND APPEAL NO.100006 OF 2019 (RO)
BETWEEN:
UGGESH S/.O. CHIKKA HARIKANTRA
AGE: 52 YEARS, OCC:FISHERMAN,
R/O. BHAVIKERI, ANKOLA.
...APPELLANT
(BY SRI. SANTOSH B.MANE, ADVOCATE)
AND:
SRI. VASU S/O. CHIKKA TANDEL,
AGED ABOUT 67 YEARS, OCC:FISHERMAN,
R/O. BHAVIKERI, ANKOLA.
...RESPONDENT
(BY SRI. S.V. YAJI, ADVOCATE)
Digitally signed
by SAMREEN
SAMREEN AYUB
DESHNUR
THIS MISCELLENEOUS SECOND APPEAL U/SEC. 43 RULE
AYUB Date:
DESHNUR 2024.02.23
16:38:44
1 (u) OF CPC, AGAINST THE JUDGMENT & DECREE DATED:
+0530
29.08.2018 PASSED IN RA. NO:77/2017 ON THE FILE OF THE
SENIOR CIVIL JUDGE, ANKOLA, ALLOWING THE APPEAL AND
SET ASIDE THE JUDGMENT AND DECREE DATED: 18.01.2017
PASSED IN OS NO.69/2013, ON THE FILE OF THE CIVIL JUDGE,
ANKOLA, DISMISSING THE SUIT FILED FOR PARTITION AND
SEPARATE POSSESSION.
THIS MISCELLENEOUS SECOND APPEAL, COMING ON
FOR ADMISSION, THIS DAY, THE COURT DELIVERED THE
FOLLOWING:
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NC: 2024:KHC-D:4189
MSA No. 100006 of 2019
JUDGMENT
Heard Sri.Santhosh B. Mane, learned counsel for the
appellant and Sri.S.V.Yaji, learned counsel for the
respondent.
2. Present appeal is filed challenging the validity of
the judgment and award passed in Regular Appeal
No.77/2017 dated 29.08.2018 on the file of Senior Civil
Judge, Ankola.
3. Brief facts of the case are as under:
A suit came to be filed in O.S.No.69/2013 on the file
Civil Judge, Ankola, which came to be dismissed on the
ground that the plaintiff failed to prove their relationship
with common prepositus by judgment dated 18.01.2017.
4. Being aggrieved by the said judgment and
decree, plaintiff filed a Regular Appeal in 77/2017.
5. Appeal was contested by the defendant.
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6. After securing the trial Court records and
hearing the parties in detail, the First Appellate Court
allowed the appeal.
7. Being aggrieved by the remand of the suit to
the Trial Court for fresh disposal and with regard to the
DNA test ordered by the First Appellate Court, the
defendant has preferred the present appeal.
8. Sri.Santosh Mane, learned counsel reiterating
the grounds urged in the appeal memorandum vehemently
contended that the question of relationship is to be
established strictly in accordance with law as per Section
50 of Indian Evidence Act and instead of directing the
parties to place such an evidence on record, sou-moto the
learned Judge has directed the plaintiff to place evidence
on record by DNA test and defendant was forced to furnish
the sample for DNA test in the impugned order and sought
for allowing the appeal.
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9. Per contra, Sri.S.V.Yaji, learned counsel for
respondent/plaintiff while supporting the order of remand,
fairly submitted that no application was made by the
plaintiff before the First Appellate Court for DNA test.
10. However, he submitted that the Trial Court
failed to understand the nature of proof required for
establishing the relationship among the parties and
therefore, the First Appellate Court was justified in
remitting the matter to the Trial Court for placing
necessary evidence on record to prove their relationship
and sought for passing appropriate orders.
11. Having heard the parties, this Court perused
the material on record meticulously.
12. On such perusal of the material on record,
admittedly, suit of the plaintiff came to be dismissed by
the Trial Court on the ground that plaintiff failed to prove
the relationship of plaintiff with the defendant.
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13. Being aggrieved by the same, plaintiff filed an
appeal before the First Appellate Court.
14. Learned Judge in the First Appellate Court while
dealing with the respective contentions of the parties, in
paragraph No.22 has held as under:
21. On the other hand, this plaintiff contended that,
he is the son of Chikka and his father was also
called Tandel and Harikantra. He brought my notice
to the Ex.P.7 election voter list, wherein his father's
name was mentioned as Chikka. He further
contended that, the name of the defendant also
mentioned as son of Chikka Tandel which shows
that his father was also called as Tandel. In support
of his claim, he relied the cross-examination of this
D.W.1. This D.W.1 in his cross-examination admits
that, his son name is Chandrashekhar Harikantra.
He identified his son's photo in a voter list Ex.P.7
wherein his son's name was mentioned as
Chandrashekhar Harikantra. He further admits that,
he is also called by name Yogesha and also as
Uggesha. His name was mentioned as Tandel
Yogesh S/o Chikka. He specifically admits that -
"ನನ ಊ ನ ೕ ಶ ಮ ಉ ೕಶ ಎಂಬ ಎರ
ಸ ಗ ಂದ ಕ ಎಂದ ಸ ."
15. No doubt, DNA test is a scientific method of
placing the evidence on record. But as a matter of course,
DNA test should not be ordered by the Court as per settled
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principles of law that too when there is no application filed
by the parties in this regard.
16. Further, furnishing the biological samples for
the DNA test is invasion to privacy which is protected
under Article 21 of Constitution of Indian.
17. Therefore, when the Court is of the opinion that
there is no other possibility of proving the relationship and
when there is an assertion by one party and denial by the
other party, on an application, the Court may order for
DNA test in a given case. Ordering the DNA test is not the
rule but it is an exception.
18. In the case on hand, without there being any
application by any of the parties, First Appellate Court on
its own in paragraph No.21 of the impugned order held
that the DNA sibling test compares genetic material of one
person with another person to determine the likelihood of
their biological related and directed the parties to the suit
to furnish the biological samples.
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19. Therefore, this Court is of the considered
opinion that there is sufficient force in the argument put
forward on behalf of the appellant/defendant that the First
Appellate Court has exceeded in its limit in directing the
parties to furnish the biological samples for the DNA test.
20. Therefore, to that extent, the impugned
judgment needs interference at the hands of this Court by
exercising the power vested in this Court under Order
XLIII Rule 1(u) of CPC.
21. The First Appellate Court in its discretion
allowed the application filed under Order XLI Rule 27 of
CPC and permitted the parties to place additional evidence
on record. Since, the additional evidence is said to be
allowed for the first time to come on record, an
opportunity needs to be provided for the
appellant/defendant to meet the case of the plaintiff in
respect of additional evidence.
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22. Therefore, remitting the matter to the Trial
Court is just and proper. Since, it is an open remand as is
contemplated under Order XLI Rule 25 CPC, the First
Appellate Court ought to have fixed some time limit having
regard to the suit being of the year 2013. Therefore,
appropriate orders are to be placed.
23. Hence, following:
ORDER
i. Appeal is allowed in part, while maintaining
the order of maintenance of the suit to the
Trial Court in O.S.No.69/2013 directing the
parties to furnish the biological samples for
the DNA test is set aside.
ii. The plaintiff is permitted to place additional
evidence on record to prove the relationship
of plaintiff with the defendant.
iii. If any such additional evidence is placed on
record, needless to emphasise that the
defendant has got every right to oppose the
additional evidence by placing rebuttal
evidence on record.
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iv. Parties shall appear before the Trial Court
without further notice on 18.03.2024.
v. Thereafter, Trial Court shall afford necessary
opportunity for the parties and dispose of the
suit afresh, in accordance with law on or
before 20.12.2024.
Sd/-
JUDGE
KAV
