The need for a strong prima facie case and the potential adverse consequences of ordering a DNa test in civil cases.

JUDGMENT

ajoy Kumar Mukherjee, J. - Feeling aggrieved and dissatisfied with the order dated 20.11.2018 passed by The Learned Civil Judge (Sr. Divn), 2nd Court at alipore in Title Suit No.87 of 1995, wherein Learned Trial Judge was pleased to reject , defendants/petitioners prayer for DNa test to prove, whether plaintiffs have any blood relation with the defendants in the context of plaintiffs claim of co-heirship, the defendants/petitioners preferred this revisional application before this court under article 227 of the constitution of India, on the grounds inter alia.

i) That the Learned Trial Judge erred in law with material irregularity in rejecting the petition of the petitioners when there is a provision to determine the blood relations between plaintiffs and the defendants through test of Deoxyribonucleic acid (hereinafter called DNa test) ii) The Learned Trial Judge committed an error in holding that the evidence of the plaintiffs is over and at the stage of the trial, when the cross examination of the defendants is completed in part , the application has been filed only two shift the burden in proving that Mahmuda Begum has no relation with akbar ali, into the shoulder of the medical test. iii) The Learned Trial Judge failed to appreciate that the plaintiff is trying to mislead the court by concocted and manufactured story and that when the advanced technology for determining the blood relation between plaintiffs and defendants are available, through DNa test, the same should be taken into consideration before deciding the partition suit, where the plaintiffs' claim is based merely on the ground of alleged blood relationship and specially when the plaintiffs have not produced valid evidence in proof of the claim that original plaintiff Mahmuda Begum was the daughter of akbar ali.

2. Plaintiffs / respondents case in a nutshell is that the subject matter of the said partition suit No. 87 of 95 is the property at premises No. 6/H, Shamsul Huda Road, P.S. Karya , Kol-700017 and it belonged to one akbar ali since deceased, a Sunni Mohammedan. Said akbar ali is the common predecessor in interest of plaintiffs and defendants. Said akbar ali died intestate on 27.11.1966, leaving behind his widow Jamila Khatoon, original plaintiff Mahmuda Begum (daughter) and original defendant asgar ali (son). Said Jamila Khatoon died intestate in 1980 and according to the Mohammedan Succession Law, asgar ali ,i.e. original defendant became owner of 2/3rd share and Mahmuda Begum , predecessor of present plaintiffs became owner of 1/3rd share. Further case of the plaintiff is that said asgar ali, since deceased, was in Bangladesh when his father akbar ali expired and he returned to India in or about 1972. as asgar ali was disturbing enjoyment of the suit property, so original plaintiff Mahmuda Begum claiming herself as daughter of akbar ali filled said partition suit in the year 1995. During pendency of the suit Mahmuda Begum, i.e. original plaintiff died on 12.10.2002 and present plaintiffs/opposite parties were substituted in the suit. Original defendant asgar ali also died during pendency of suit and present defendants have been substituted. The suit had been long protracted.

3. On 01.08.2016 substituted defendants/petitioners filed an application challenging the maintainability of the suit on the ground that partition suit is not maintainable, since there is no relationship between late akbar ali and late Jamila Khatoon with the original plaintiff Mahmuda Begum and plaintiffs/ opposite parties filed written objection against that maintainability petition on 30. 11.2016 and defendants /petitioners also filed rejoinder to the said written objection and Learned Trial Court after hearing both the parties was pleased to reject the said petition for maintainability filed by the defendants on 27.02.2017 on contest. So far plaintiff's knowledge goes, no appeal/application has been preferred and therefore, said order has reached it's finality.

4. Fur