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2019 DIGILAW 1677 (KAR)

Nagamma v. Shivalingappa

2019-07-12

B.M.SHYAM PRASAD

body2019
JUDGMENT : B.M. Shyam Prasad, J. 1. This appeal is filed by the plaintiffs, whose application viz., I.A.No.VIII in a suit O.S.No.94/2004 on the file of I Additional Senior Civil Judge, Kalaburagi (for short "the trial Court") under Order XXXIX Rule 1 and 2 of the Code of Civil Procedure (for short "the CPC") read with Section 151 of CPC is rejected. The appellants' application is for direction to the defendant/respondent to undergo a DNA profiling test along with the appellants to establish the paternity of the appellants. The trial Court by the impugned order has rejected the application. 2. The appellants have filed the suit in O.S.No.94/2004 for partition and separate possession of suit schedule properties viz., agricultural lands in Sy.No.55 Hissa 4, 5, 8A measuring 04 acres 15 guntas and land Sy.No.62 Hissa 03 measuring 08 acres 32 guntas of Melkund (K) village, Gulbarga Taluk and District. The appellants have asserted that the appellants' mother, Smt. Laxmibai, was married to the respondent and they are their children. However, the defendant/respondent developed intimacy with another, Smt. Parvati, and he and Smt. Parvati have six children. The appellants have also contended that they and the respondents are members of a Hindu joint family. Therefore, the appellants are entitled for a share in the suit schedule lands. 3. The learned counsel for the appellants submits that the appellants have filed I.A.No.VIII when the suit was listed for arguments. But, the learned counsel for the respondent submits that the application is filed when the suit was listed for evidence. Be that as it may, the trial Court has dismissed the application on the ground that the appellants have not exhausted the remedy available to prove the relationship with the respondent. Therefore, the appellants cannot seek assistance of DNA Test to prove the paternity. 4. In support of the appeal, the learned counsel for the appellants relied upon the decision of the Hon'ble Supreme Court in the case of Dipanwita Roy and Ronobroto Roy in Civil Appeal No.9744 of 2014 (Arising out of SLP (C) No.5694 of 2013) with emphasis Para Nos.16 and 17. 4. In support of the appeal, the learned counsel for the appellants relied upon the decision of the Hon'ble Supreme Court in the case of Dipanwita Roy and Ronobroto Roy in Civil Appeal No.9744 of 2014 (Arising out of SLP (C) No.5694 of 2013) with emphasis Para Nos.16 and 17. The learned counsel for the appellants argued that the interest of justice is best served by ascertaining the truth and the Court should be furnished with the best possible scientific evidence and questions of paternity should not be decided on the basis of presumption when scientific evidence could be availed. The presumption should come into play only when the scientific evidence is not available. As such, the trial Court could not have rejected the application on the ground that appellants have not had recourse to the remedy otherwise available to them. 5. The learned counsel for the respondent, on the other hand, raised preliminary objections as regards the maintainability of the appeal. The learned counsel contended that the appellants have filed I.A.No.III under Order XXXIX Rule 1 and 2 of CPC. Though the appellants have styled the application as being under Order XXXIX Rule 1 and 2 of CPC, it is in effect an application for scientific examination as contemplated under Order XXVI Rule 10 (A) of CPC. If the application is under Order XXVI Rule 10 (A) of CPC, the appeal would not be lie under Order XLIII sub-rule 1 (r) of CPC. The learned counsel for the respondent relied upon the settle preposition that if an application is filed invoking the wrong provision of law, then it will have to be treated as an application filed under the appropriate provisions of law. As such, the appeal will have to be dismissed on the ground of maintainability. The learned counsel for the respondent further submits that even if the application where to be construed as filed under Order XXXIX Rule 7 of CPC, this appeal will still not be maintainable. The provisions of Order XLI of CPC do not provide for an appeal against an order on an application under Order XXXIX Rule 7 of CPC. 6. In rejoinder, the learned counsel for the appellants relied upon the decision of the Hon'ble Supreme Court in the case of Narayan Dutt Tiwari /vs/ Rohit Shekhar and another, (2012) 12 SCC 554. The provisions of Order XLI of CPC do not provide for an appeal against an order on an application under Order XXXIX Rule 7 of CPC. 6. In rejoinder, the learned counsel for the appellants relied upon the decision of the Hon'ble Supreme Court in the case of Narayan Dutt Tiwari /vs/ Rohit Shekhar and another, (2012) 12 SCC 554. The learned counsel argued that the decision of the Hon'ble Supreme Court in this case is an authority on the maintainability of an application under Order XXXIX Rule 1 and 2 of CPC for direction to the parties to under DNA Test. The learned counsel for the appellants relied upon Para No.28, which reads as follows:- "It cannot also be lost sight of that the order directing Respondent 1 to undergo DA testing was an order in exercise of powers by the Court under Order 39 Rules 1 and 2 CPC and not in exercise of powers as under Order 12 Rule 8 or under Order 11 or Order 16 CPC, for non-compliance whereof adverse inference is permitted to be drawn. A Court of law cannot sit still with folded hands and countenance its injunction being treated with indifference or scant courtesy by the party against whom it is directed and who is bound to obey its terms. This is particularly so when such injunction has been confirmed in appeal and stay thereof been rejected by the Supreme Court". 7. In view of the rival submissions the question of maintainability of the appeal will have to be examined at the threshold. It is settled law, and it needs no reiteration, that even if wrong provision of CPC is invoked, the application cannot be dismissed on such grounds and the application will have to be considered on merits as if such application is filed under the appropriate provisions of CPC. The appellants have filed an application under Order XXXIX Rule 1 and 2 of CPC. The learned counsel relied upon the provision of XXXIX Rule 7 of CPC to justify that the present application would be maintainable under the provision of XXXIX of CPC. The provisions of Order XLIII of CPC enlist the interim orders that can be challenged in an appeal. The learned counsel relied upon the provision of XXXIX Rule 7 of CPC to justify that the present application would be maintainable under the provision of XXXIX of CPC. The provisions of Order XLIII of CPC enlist the interim orders that can be challenged in an appeal. Insofar as orders under Order XXXIX Rule of CPC, the provisions of Order XLIII Rule (1) (r) enlist only interim orders under XXXIX Rules 1, 2, 2A, 4 and 10 of CPC. A precis of the interim orders that can be granted would be as follows. Under the provisions of Order XXXIX Rule 1 of CPC, interim order to restrain the acts of the waste, damage, alienation, sale removal or dispossession could be granted. The provisions of Order XXXIX Rule 2 provide for granting of interim order restraining the commission of breach of contract or any other injury of such kind. The provisions of under Order XXXIX Rule 6 provide for interim orders of sale and provisions of Order XXXIX Rule 10 provide for interim orders directing deposit of money or other valuable held in trust for another. The direction to a party to submit to DNA Test is not contemplated in any of the aforesaid Rules of Order XXXIX of CPC. 8. It is settled law that the right of appeal is a statutory right and can be exercised only if conferred by the statute, and in the manner provided under the statute. Therefore, the appeal could be lie only against such interim orders as are enlisted under Order XLIII Rule 1 of CPC. 9. The learned counsel for the appellants has relied upon the decision of the Hon'ble Supreme Court in the case of Narayan Dutt Tiwari /vs/ Rohit Shekhar and another, (2012) 12 SCC 554. However, the Hon'ble Supreme Court in such case was examining the question "Whether a person can be physically compelled to give a blood sample for DNA profiling in compliance with a civil COURT order in a paternity action? If it were held that the same was permissible, how is the Court to mould its order and what would be the modalities for drawing the involuntary sample". It is while answering there questions, the Hon'ble Supreme Court has observed that in the case on hand, an order for drawing blood sample was made under Order XXXIX Rule 1 and 2 CPC. It is while answering there questions, the Hon'ble Supreme Court has observed that in the case on hand, an order for drawing blood sample was made under Order XXXIX Rule 1 and 2 CPC. The Hon'ble Supreme Court further held that merely because adverse inference can be drawn under certain circumstances, the Courts cannot sit still with folded hands if in case its orders are violated. The parties before the Hon'ble Supreme Court were not at issue on under which provisions directions for paternity could be sought and the remedy available as against any order either allowing or rejecting such prayer. The appellants' application for direction to the respondent could be either under Order XXVI Rule 10A or under Order XXXIX Rule of CPC, in which event, no appeal would lie under Order XLI Rule 1 (r) of CPC. As such, this Court will have to hold that the appeal is not maintainable and therefore, appeal will have to be dismissed on the ground of maintainability. 10. The learned counsel for the appellants, at this stage, seeks liberty to challenge the impugned order on merits in a manner know to law, or pursue as such remedy as would be otherwise available in law for pursuing the right to insist on a paternity test. This appeal is being disposed of only on the ground of maintainability and this Court has not expressed any opinion on the merits of the impugned order. Therefore, the appellants are reserved all liberty, including the right to challenge the impugned order in a manner known to law subject to all just exceptions.