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2013 Supreme(AP) 1098

High Court of Andhra Pradesh
THE HONOURABLE MR. JUSTICE NOOTY RAMAMOHANA RAO, J.
Davu Gopal Lunani
Versus
Siva Gopal Lunani & Another
Civil Revision Petition Nos. 2961 & 2980 of 2013
Decided on: 09-12-2013

Advocates Appeared:
For the Petitioner:D.V. Madhusudhan Rao, Advocate.
For the Respondents:K. Chidabaram, Advocate.

Headnote:Specific Relief Act 1963 - Sections 34 and 35 - Civil Procedure Code 1908 - Order 2 Rule 2 - Maintainability of suit for declaration as to legitimacy cannot be questioned, on ground of suit being hit by prohibition contained in Ss.34 and S.35 of Act – Suit cannot be dismissed for omission of plaintiff to sue for any other relief.

Judgment :

Both these revisions are heard together as they are interconnected with each other and the parties are also one and the same. The 1st defendant in the suit is the petitioner in both these revisions.

The suit O.S.No.133 of 2012 has been instituted by the 1st respondent herein seeking a declaration that the 1st defendant in the suit is the father of the plaintiff born, to the 2nd defendant due to the long cohabitation as man and wife by defendant Nos.1 and 2 in the suit.

In suit O.S.No.133 of 2012, I.A.No.318 of 2012 has been taken out by the 1st respondent/plaintiff under Section 45 of the Indian Evidence Act read with Section 151 Code of Civil Procedure (for short “C.P.C.”) to subject both the plaintiff and the 1st defendant in the suit to undergo DNA Finger Printing test at Center for Cellular and Molecular Biology (C.C.M.B), Tarnaka, Hyderabad or at any other reputed Government testing laboratory – cum – hospital to ascertain the factum of his paternity. The said I.A. was allowed by the Court by its order dated 07.06.2013. Challenging the correctness of this order, C.R.P.No.2961 of 2013 has been instituted. C.R.P.No.2980 of 2013 has been instituted to strike off O.S.No.133 of 2012 on the file of the learned I Additional Junior Civil Judge, Eluru as the said Court suffers inherent lack of jurisdiction for trying the same in view of the provisions contained in Section 7(1) clauses (b) and (e) of the Family Courts Act, 1984 (for short “the Act”), Proviso to Sections 34 and 35 of the Specific Relief Act read with Order II Rule 2 CPC and Sections 40 to 42 and 112 of the Evidence Act. That is the reason why both these Civil Revision Petitions are heard together.

The plaintiff has claimed that the 1st defendant in the suit married the 2nd defendant as per Hindu Vedic rites and customs in the presence of elders and relatives at Dwaraka Thirumala on 04.03.1982. As a consequence of this marriage between the defendants, they lived together as man and wife for sufficiently long period enough and as a result of which relationship; the plaintiff was born to the 2nd defendant on 30.10.1984. It is the claim of the plaintiff in the suit that the 1st defendant has treated the plaintiff and the 2nd defendant with necessary love and affection and looked after them well. It is also the claim of the plaintiff that his paternal grandfather Sri Siva Gopal Lunani, the father of the 1st defendant, has also treated him with much love and affection and has supported him. According to the plaintiff sometime around June, 2011 when he approached the 1st defendant to consult him with regard to his further education, the 1st defendant has refused his relationship with the plaintiff. In view of this denial of relationship by the 1st defendant, the plaintiff got issued a legal notice on 05.08.2011 and the 1st defendant got issued a reply notice on 20.08.2011 denying his marriage with the 2nd defendant and consequently his relationship with the plaintiff. The 1st defendant claimed no acquaintance with the plaintiff or with his mother, the 2nd defendant in the suit and asserted that both of them are strangers to him. Further, the 1st defendant has set out that he is already a married person by 04.03.1982, the date on which it was alleged that he had married the 2nd defendant in the suit. The 1st defendant, therefore, asserted that the question of marrying the 2nd defendant second time while his wife Smt.Saroj Lunani was very much alive simply would not arise. The 1st defendant has further asserted that as he is a rich person, the plaintiff had adopted blackmailing tactics for extracting money by seeking to defame him in the society. The 1st defendant has also asserted that since his is a rich and enjoying decent reputation in the society, the plaintiff might have been set up by someone else to malign the 1st defendant irretrievably.

The 1st defendant has reiterated the pleas taken by him in his reply notice, while filing the detailed written statement in
































































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