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2019 DIGILAW 545 (RAJ)

Shanta Devi @ Lad Devi W/o Sh. Mahendra Kumar @ Mahendra Singh Khabya (Jain) v. Lad Devi W/o Late Sh. Mahendra Kumar @ Mahendra Singh Khabya (Jain)

2019-02-15

INDERJEET SINGH

body2019
ORDER : 1. This writ petition has been filed by the petitioner-plaintiffs challenging the order dated 03.01.2019 passed by learned trial Court whereby the application submitted by the petitioner under Section 165 of the Indian Evidence Act, 1872 was dismissed. 2. Brief facts of the case are that the petitioner-plaintiffs filed a suit for partition, permanent injunction and declaration against the respondent-defendants before the learned trial Court. 3. The suit was filed in the year 2009 and the reply was filed by the petitioner-plaintiffs in the year 2009 and the respondent defendants filed written statement in the year 2010. Thereafter, the learned trial Court recorded the evidence of both the parties on 02.11.2018 and the suit was fixed for final arguments. 4. Thereafter, the petitioner-plaintiffs filed the application for DNA test of respondent Nos. 2 and 3 and the said application was dismissed by the learned trial Court vide order dated 03.01.2019. Hence, the present writ petition has been filed. 5. Counsel for the petitioner-plaintiffs submitted that according to Section 165 of the Indian Evidence Act, 1872, the trial Court has power to record the statement or to call for the DNA Test Report at any stage. Counsel further submits that the delay will not prejudice the rights of the respondent-defendants and they can be compensate by payment of cost. 6. Counsel for the respondent-defendants supported the order passed by learned trial Court and submitted that the application has been filed by the petitioner-plaintiffs just to delay the proceedings. 7. Heard counsel for the parties and perused the record. 8. This writ petition filed by the petitioner deserves to be dismissed for the reasons: (a) Firstly, the petitioner has filed the application for DNA test and for taking on record the DNA Test Report of the respondent Nos. 2 and 3 after delay of 09 years. Therefore, in my considered view, the learned trial Court has not committed any illegality in dismissing the application filed by the petitioner plaintiffs. (b) Secondly, the suits proceedings are at final stage before learned trial Court, therefore, in the facts and circumstances of the present case, I am not inclined to exercise the jurisdiction of this Court under Article 227 of the Constitution of India. 9. In that view of the matter, the writ petition filed by the petitioner-plaintiffs stands dismissed.