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2018 DIGILAW 2206 (HP)

Shubam v. Pyashu

2018-12-13

SANDEEP SHARMA

body2018
JUDGMENT Sandeep Sharma, J. - Being aggrieved and dis-satisfied with order dated 2.7.2018, passed by the learned Civil Judge, Court No.2, Rohru, H.P., whereby an application having been filed by the petitioner-plaintiff (herein after referred to as "the plaintiff") under Order 26 Rule 10 (a) CPC, read with Section 45 of the Indian Evidence Act, seeking therein direction to defendants No. 1 to 3 and proforma defendants No. 12 and 13, to submit themselves for getting their blood samples drawn by the medical officer for conducting DNA test, came to be dismissed, plaintiff has approached this Court in the instant proceedings filed under Article 227 of the Constitution of India, praying therein to set aside the impugned order referred herein above and to allow the application filed by him under Order 26 Rule 10 (a) CPC, read with Section 45 of the Indian Evidence Act. 2. Facts, as emerge from the record are that plaintiff filed a suit for declaration against the defendants with a prayer that the plaintiff and proforma defendants No. 12 and 13 are sons of Gian Singh (defendant No.3) and grand sons of Pyashu (defendant No.1). The plaintiff claimed that he is member of Hindu joint family alongwith proforma defendants No. 12 and 13 and are in joint ownership and possession alongwith principal defendant having vested right, title and interest by birth over the suit land being grandson of defendant No.1. 3. Aforesaid claim set-up by the plaintiff came to be resisted by way of written statement filed by defendant No.2, which was also adopted by defendant No.1. Aforesaid defendants refuted the claim setup by the plaintiff that he is grandson of defendant No.1. During the pendency of the suit referred herein above, when matter was fixed for evidence of plaintiff, plaintiff moved an application under Order 26 Rule 10 (a) CPC, read with Section 45 of the Indian Evidence Act, praying therein to issue direction to defendants No. 1 to 3 and proforma defendants No. 12 and 13 to give their blood samples to the medical officer for conducting DNA test so that factum with regard to the paternity of the plaintiff is ascertained. Aforesaid application (Annexure P-3), having been filed by the plaintiff was resisted by defendants No. 1 and 2, by way of filing reply, who in para 2 of their reply (Annexure P-4) stated that controversy at hand, has been already set to rest by the Hon''ble High Court in earlier suit having been filed by the defendant No.3 namely Gian Singh i.e. father of the petitioner, wherein defendant No.3 had categorically taken stand that defendant No.1 (Pyashu) was having illicit relations with his mother and sought declaration that he is son of Shri Pyashu, however, the suit filed by defendant No.3 was dismissed by the learned Sub-Judge, Rohru, whereafter, appeal having been filed by defendant No.1 was accepted but subsequently, this Court vide judgment dated 6.11.2000, allowed the case bearing RSA No. 204 of 1998, having been filed by the defendants herein, as a consequence of which, judgment rendered by the learned Sub-Judge, Rohru, was upheld. 4. Defendant also opposed the prayer made in the application, on the ground that there is a material difference in the present lis and the earlier one, because in the previous suit, contention of defendant No.3 i.e. father of the plaintiff, was that the mother of defendant No.3 was having illicit relations with defendant No.1 and out of that relationship, defendant No.3 was born, but in the present case, stand of plaintiff is that mother of defendant No.3 was married with defendant No.1 and as such, for taking contradictory pleas, present application deserves to be dismissed. Learned court below having taken note of the pleadings adduced on record by the respective parties and judgment rendered by this Court in RSA No. 204 of 1998, dismissed the application having been filed by the plaintiff. In the aforesaid background, plaintiff has approached this Court in the instant proceedings. 5. I have heard the learned counsel for the parties as well as carefully perused the records of the case. 6. Having heard learned counsel for the parties and perused material available on record vis--vis reasoning assigned in the impugned order, this Court is not persuaded to agree with Mr. 5. I have heard the learned counsel for the parties as well as carefully perused the records of the case. 6. Having heard learned counsel for the parties and perused material available on record vis--vis reasoning assigned in the impugned order, this Court is not persuaded to agree with Mr. Romesh Verma, learned counsel that in the given facts and circumstances of the case, court below ought to have allowed the application for proper adjudication of the case because in view of the contradictory stand taken by the plaintiff in the instant proceedings, this Court sees no reason for ascertaining the paternity, if any, of the plaintiff. 7. It is not in dispute, rather is a matter of record that in earlier suit, defendant No.3, who happened to be father of the plaintiff, had claimed that defendant No.1, who happened to be his father, was having illicit relations with his mother and as such, he sought declaration in this regard from the Civil Court, but suit filed by defendant No.3 was dismissed and such judgment was further upheld by this Court in RSA No. 204 of 1998 vide judgment dated 6.11.2000. 8. Interestingly, plaintiff, who claims himself to be son of defendant No.3, has filed suit for declaration to the effect that he and proforma defendants are members of joint Hindu family having joint ownership and possession being grandsons of defendant No.1 alongwith the principal defendants having vested right, title and interest by birth over the suit land, but as has been noticed herein above, in the previous suit having been filed by defendant No.3 i.e. father of the plaintiff, plea of defendant No.3 (father of the plaintiff) to the effect that he is illegitimate son of defendant No.1, was not upheld and as such, there appears to be considerable force in the argument of Sh. Bhupinder Gupta, learned Senior Counsel, representing the defendants that once defendant No.3 i.e. father of the plaintiff, has not been held to be son of defendant No1, plaintiff cannot claimed himself to be legitimate grandson of defendant No.1. Hence, this Court is of the view that no fruitful purpose would be served, in case prayer made in the application for issuing direction to defendants No.1 to 3 and proforma defendants No. 12 and 14, to submit themselves to medical officer for drawing their blood sample is issued. 9. Hence, this Court is of the view that no fruitful purpose would be served, in case prayer made in the application for issuing direction to defendants No.1 to 3 and proforma defendants No. 12 and 14, to submit themselves to medical officer for drawing their blood sample is issued. 9. Consequently, in view of the discussion made herein above, this Court sees no illegality and infirmity in the impugned order passed by the court below, which otherwise appears to be based upon proper appreciation of the facts as well as law and as such, same deserves to be upheld. Accordingly, the present petition is dismissed being devoid of any merits. Needless to say, any observations made hereinabove shall not be construed to be a reflection on the merits of the main case pending before the court below and shall remain confined to the disposal of this case alone.