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2020 DIGILAW 1227 (KAR)

Hafizulla v. Nazanim

2020-06-25

HEMANT CHANDANGOUDAR

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JUDGMENT Hemant Chandangoudar, J. - Respondent herein has instituted a suit in OS No.131/2009 for partition and separate possession of her 1/5th share in the suit schedule property and also to declare that the partition deed dated 29.12.2003 is not binding on her. 2. In the plaint, she has stated that the 1st defendant is the mother and defendant Nos.2 to 4 are her sisters. Further she has taken a contention that the 5th defendant who is the petitioner herein is a stranger and not at all related to the family and also not a legal heir of either Syed Mohiddin or Syed Peer Sab who is the father of the plaintiff and as such, he is not entitled for any share in the suit schedule property. 3. Petitioner who is the 5th defendant along with defendant Nos.1 and 4 filed common written statement denying the contention of the plaintiff that the 5th defendant is a stranger to the family and he is the son of Syed Iqbal but stated that the 5th Defendant is the only brother of the plaintiff and the 5th defendant was the only son of late Syed Peer Sab. 4. After conclusion of the evidence of the parties to the suit, plaintiff requested the Trial Court so as to consider I.A.No.13 filed under Order 26 Rule 10(a) read with Section 151 of Code of Civil Procedure seeking for a direction to the 5th defendant to undergo DNA test so as to ascertain blood relation of the 5th defendant and other defendants along with the plaintiff. Petitioner and defendant Nos.1 and 4 filed objection to the said application contending that the material on record clearly establish that the 5th defendant is the son of Syed Peer Sab and as such the application is not maintainable. 5. Trial Court by order dated 11.4.2014 allowed the application in I.A.No.13 and directed the 5th defendant to give blood sample for conducting the DNA profiling. Taking exception to the said order, the 5th defendant has filed this writ petition. 6. 5. Trial Court by order dated 11.4.2014 allowed the application in I.A.No.13 and directed the 5th defendant to give blood sample for conducting the DNA profiling. Taking exception to the said order, the 5th defendant has filed this writ petition. 6. Learned counsel for the petitioner submits that the Trial Court while considering I.A.No.13 has not taken into consideration the admission of the 1st defendant in the written statement wherein she has specifically denied the contention of the plaintiff that the 5th defendant is the stranger to the family and she has specifically admitted that the 5th defendant is the only son of Syed Peer Sab and brother of the plaintiff. He further submits that material on record produced by the 5th defendant clearly establish that the 5th defendant is the son of deceased Syed Peer Sab and also the 1st defendant. He also submits that the 5th defendant cannot be compelled to under go DNA profiling when the mother of plaintiff and the 5th defendant has admitted the relationship. He further submits that the DNA test can be ordered only in the exceptional cases where the evidence collected by the parties is insufficient for lacking to decide paternity of person or the blood relation between the parties. 7. Learned counsel for the petitioner further submits that when the mother has admitted the relationship, the petitioner is not competent to question the same. He also submits that impugned order passed by Trial Court violates Article 21 of the Constitution of India. In the absence of prima facie case, the 5th defendant cannot be compelled to undergo DNA profiling at the instance of plaintiff. Hence, he prays for allowing the writ petition. 8. Learned counsel for the respondent submits that the 5th defendant is not the son of Syed Peer Sab but the son of Syed Iqbal and so as to put an end to the controversy regarding the relationship of the 5th defendant with the family subjecting the 5th defendant to DNA test is necessary. In support of his submission, he has placed reliance on the decision of the Apex Court in the case of Nandlal Wasudeo Badwak vs- Lata Nandalal Badwaik, (2014) 2 SCC 576 wherein at para-17 of the judgment which reads thus: "17. In support of his submission, he has placed reliance on the decision of the Apex Court in the case of Nandlal Wasudeo Badwak vs- Lata Nandalal Badwaik, (2014) 2 SCC 576 wherein at para-17 of the judgment which reads thus: "17. We may remember that Section 112 of the Evidence Act was enacted at a time when the modern scientific advancement and DNA test were not even in contemplation of the legislature. The result of DNA test is said to be scientifically accurate. Although Section 112 raises a presumption of conclusive proof on satisfaction of the conditions enumerated therein but the same is rebuttable. The presumption may afford legitimate means of arriving at an affirmative legal conclusion. While the truth or fact is known, in our opinion, there is no need or room for any presumption. Where there is evidence to the contrary, the presumption is rebuttable and must yield to proof. The interest of justice is best served by ascertaining the truth and the court should be furnished with the best available science and may not be left to bank upon presumption, unless science has no answer to the facts in issue. In our opinion, when there is a conflict between a conclusive proof envisaged under law and a proof based on scientific advancement accepted by the world community to be correct, the latter must prevail over the former." 9. Learned Counsel for respondent submits that the impugned order passed by Trial Court is perfectly legal and seeks for dismissal of the writ petition . 10. I have examined the submissions made by the learned counsel for the parties and also the materials on record. 11. It is a fact that the mother of the plaintiff in her written statement has admitted that the 5th defendant is the son of Syed Peer Sab. It is also fact that the 5th defendant has produced certain documents before the Trial Court to substantiate his claim that he is the son of Syed Peer Sab. Plaintiff except orally denying that the 5th defendant is not the son of Syed Peer Sab has not produced any document. In the absence of sufficient material, plaintiff has not made out prima facie case before the Trial Court so as to subject the 5th defendant to undergo DNA test. 12. Plaintiff except orally denying that the 5th defendant is not the son of Syed Peer Sab has not produced any document. In the absence of sufficient material, plaintiff has not made out prima facie case before the Trial Court so as to subject the 5th defendant to undergo DNA test. 12. Reliance placed by the learned counsel for the respondent in the case of Nandlal Wasudeo Badwak (supra) will be of no avail, since the law laid down in the said case is not applicable to the facts and circumstances of this case. In the aforesaid decision, the DNA test was already conducted and as such the Apex Court did not go into the validity of the order passed by the Co-ordinate Bench as the party had not opposed the prayer of DNA test when such a prayer was being considered. Apex Court only held that when there is a conflict between a conclusive proof envisaged under law and the proof based on scientific advancement accepted by the world community to be correct, the latter must prevail over the former. In present case, the 5th defendant has resisted the prayer of the plaintiff for DNA test. 13. Trial Court has relied on the decision of the Apex Court in Smt.Sharda -Vs - Dharampal, (2003) 4 SCC 493 wherein it is held that civil court has got power to order for DNA Test to find out the truth. However, it has lost sight of the fact that the Apex Court in the said decision at Para - 86 has held that civil court has got power to order for DNA profiling and the same does not violate Article 21 Constitution of India and the said power can be exercised only if the applicant makes out a prima facie case and there is sufficient material before it. 14. In the present case, Trial Court without recording a finding that the Plaintiff has made out a strong prima facie case and there is sufficient material before it, has mechanically directed 5th defendant to undergo DNA test . For the aforesaid discussion, I am of the view that the impugned order passed by the Trial Court is not sustainable in law. Accordingly, writ petition is allowed and the impugned order passed by the Additional Civil Judge, Sagar dated 11.4.2014 in OS No.131/2009 on I.A.No.13 is hereby quashed. For the aforesaid discussion, I am of the view that the impugned order passed by the Trial Court is not sustainable in law. Accordingly, writ petition is allowed and the impugned order passed by the Additional Civil Judge, Sagar dated 11.4.2014 in OS No.131/2009 on I.A.No.13 is hereby quashed. It is made clear that this Court has not formed an opinion that the 5th defendant is the son of Syed Peer Sab. It is open for the plaintiff to substantiate her claim before the Trial Court and the Trial Court shall consider the said issue based on the material available on record.