2019 Supreme(Kar) 2095

IN THE HIGH COURT OF KARNATAKA AT BENGALURU
B. VEERAPPA, J.
Dayananda Gowda S.V S/o Late Venkatappa – Appellant
Versus
Sri R.Venkatappa S/o Late Rangappa and Ors – Respondent
Writ Petition No.36322 of 2017 (GMCPC)
Decided On : 05-04-2019

Headnote:

Evidence Act - Section 112 - Civil Procedure Code - Order XXVI - Rule 10A - Sections 75(e) and 151 - Possession of all suit schedule properties - Permanent injunction - Whether trial Court is justified in rejecting application filed under Order XXVI Rule 10A read with Sections 75(e) and 151 of Code of Civil Procedure to appoint Court Commissioner for scientific investigation of DNA profiling of blood samples of plaintiff and defendant No.3 - Whether plaintiff has made out a case to allow application under facts and circumstances of case - Whether plaintiff is son of defendant No.1through as alleged by plaintiff - Plaintiff filed for partition and separate possession of all suit schedule properties to declare that partition deed registered before office of Sub Registrar is null and void and it is not binding upon lawful right of plaintiff and for permanent injunction restraining defendants from alienating transferring conveying mortgaging creating any manner of charge etc over suit schedule properties more fully described in plaint by contending that defendant Nos.1 and 2 are legally wedded husband and wife defendant Nos.3 to 7 are sons and daughters of defendant Nos.1 and 2 - Defendant No.1 had contacted second marriage with one and plaintiff is son of defendant No.1 through second wife – Held, Learned counsel for respondents has relied upon decision of Hon’ble Supreme Court in case wherein it is held that normally courts in India cannot order blood test as a matter of course and also cannot be entertained and unless there must be a strong prima facie case in that husband must establish no access in order to dispel presumption arising under Section 112 of Evidence Act - In said case maintenance was sought for against father of child where he has disputed paternity of child - Under those circumstances Hon’ble Supreme Court held that routine blood check up should not be allowed and ultimately it is for husband to dispel presumption arising under Section 112 of Evidence Act - Said case has no application to facts and circumstances of present case - In interest of justice and in peculiar facts and circumstances of present case it is a fit case to allow application - This Court while considering similar circumstances in case of relied upon by learned counsel for petitioner and case relied upon by learned counsel for respondents where application filed by plaintiff for DNA test was allowed and same was challenged before this Court and this Court in turn dismissed writ petition confirming order passed by trial Court allowing DNA test - Interlocutory application Annexure L is accompanied by affidavit of first defendant - It is specific plea of first defendant that plaintiff is son and his wife - He has specifically denied that plaintiff is not his son and he is not born to him through his first wife - Hence it is pleaded by first defendant that to arrive at truth plaintiff should be subjected to DNA test along with him - Said application having been allowed by trial Court plaintiff is before this Court assailing said order - Presumption available under Section 112 of Evidence Act would come into play where husband questions paternity of son or daughter as case may be by contending that he had no access to wife - A presumption of a fact depends upon satisfaction of certain circumstances - Those circumstances would ultimately lead to fact sought to be presumed - This is what Section 112 provides for by way of presumption - Said Section would be inapplicable to facts on hand inasmuch as it is not case of first defendant that he had no access to his wife or there was no cohabitation between them - But on other hand it is not only case of first defendant father of plaintiff but also it is case of mother D.W.5 also that she could not conceive and beget any children and as such she has forced first defendant to marry second defendant - In fact she has categorically denied that plaintiff is her son - As such presumption available under Section 112 of Evidence Act would not come into play in instant case or in other words it would not be applicable to facts obtained in the instant case - Writ petition is allowed