The appellant's evidence through power of attorney was of no consequence, and the court drew an adverse inference against the appellant for not entering the witness box.

1. Heard Mr. Bhatkuly, learned counsel appearing for the appellant and Ms. N. Pimenta, learned counsel appearing for the respondents.

2. The above appeal has been admitted on the following substantial questions of law.

(1) Whether the impugned judgment and order of both the Lower Courts are vitiated by non-consideration of material evidence, particularly the deposition at pages 12 and 13 of the DW.1 and that the plaintiff was out of Goa from September, 1991 to November, 1992 and returned only once during this period and that too 10 days after the birth of defendant no.2 and therefore, whether the findings in that regard are perverse?

(2) Whether the Courts below erred in dismissing the suit by placing the onus of proof on the plaintiff, when due to the admission of DW.1 and pages 12 and 13 of her deposition, the onus of proof had shifted on the defendants?

3. The appellant filed a suit disputing the paternity of the child which came to be born to the respondent no.1. It was the case of the appellant that he had no access to the respondent no.1 as according to him, he was in employment and living in Bombay and not in village Velim where the respondent no.1 was residing. It was further his case that only in November, 1992 he learnt about the birth of the said child wherein his name was shown as being the father when the summons were received by the appellant in the maintenance proceedings filed by the respondent no.1. The respondents filed their written statement disputing the said contention and pointed out that the appellant was a neighbour of the respondent no.1 and he was frequently coming to her house and was even spending nights along with the respondent no.1. It is further her contention that because of his promise to the marriage, she permitted access to the appellant, out of which a child came to be born. The learned trial Judge upon appreciating the evidence on record has come to the conclusion that the appellant has failed to establish his case and consequently dismissed the suit filed by the appellant. In an appeal preferred by the appellant, the learned Lower Appellate Court upon re-appreciating the evidence on record has dismissed the appeal preferred by the appellant. This Court has admitted the above appeal on the aforesaid substantial questions of law.

4. The learned counsel appearing for the appellant has assailed the impugned judgment and submitted that the admission of DW1 that the appellant was working in Bombay from September, 1991 to November, 1992, would itself disclose that the respondent no.1 has admitted that there was no access for a period of more than nine months prior to the birth of the child on 29.06.1992. The learned counsel further pointed out that on the basis of the said averments itself the learned Judge ought to have decreed the suit.

5. On the other hand, Ms. N. Pimenta, learned counsel appearing for the respondents has pointed out that in the proceedings of maintenance there was a direction to the appellant to subjected himself to paternity test which he has refused and as such, an adverse inference has to be drawn against the appellant. The learned counsel further pointed out that there is no admission at all as sought to be claimed by the appellant and in any event, such admission by itself cannot decree the suit of the appellant as according to her the appellant has failed to establish his case. The learned counsel further pointed out that it is well settled that the plaintiff has to prove his case and considering that the appellant has not entered the witness box and has chosen to depose through his power of attorney would itself show that the appellant was shying away from the cross examination. The learned counsel as such submits that no case is made out by the appellant for any interference in the impugned judgment.

6. I have carefully considered the submissions of the learned counsel and I have also gone through the records. Before I proceed to examine whether there is