ORDER :

This Civil Revision Petition has been filed to set aside the fair and ex-order, dated 22.06.2017 in I.A.No.251 of 2016 in O.S.No.50 of 2014 passed by the learned Subordinate Judge, Virudhunagar.

2. The parties are referred to as per the rank mentioned before the Court below.

3. The plaintiffs has filed a suit in O.S.No.50 of 2014 against the defendants for partition. During the pendency of the suit, the defendants have filed a interlocutory petition in I.A.No.251 of 2016 in O.S.No.50 of 2014, under Order 26 Rule 10(A) of Civil Procedure Code, for DNA test of the defendant Nos.1 & 3 and the plaintiffs. The said petition was dismissed on 22.06.2017. Aggrieved over the same, the revision petitioners/defendant Nos.1 & 3 have filed this Civil Revision Petition.

4. Heard on either side. Perused the material documents available on record.

5. This Civil Revision Petition is filed on the ground that the present case is not a criminal case and only property rights are asserted and denied. The Court below has failed to see that no prejudice would be caused to the plaintiffs if they are subjected to the DNA test which is now scientifically recognised as the most accurate method to dispel doubt of the biological relationship between two persons. The Court below has also failed to appreciate that DNA test is accurate and beneficial one, would conclude the dispute between the parties.

6. The revision petitioners/defendant Nos.1 & 2 have filed a petition in I.A.No.251 of 2016 in O.S.No.50 of 2014 under Order 26 Rule 10(A) of Civil Procedure Code, for DNA test of the defendant Nos.1 & 3 and the plaintiffs.

7. The plaintiffs have filed the suit in O.S.No.50 of 2014 for partition in respect of ancestral properties of the plaintiffs' father Krishnasamy Naicker. The revision petitioners/Defendant Nos.1 & 3 have raised an objections in their written statement that the plaintiffs are not born to Krishnasamy Naicker.

8. As per the case of the revision petitioners/Defendant Nos.1 & 3, the mother of the revision petitioners married one Chokkalinga Chettiar even during the life time of Krishnasamy Naicker and gave birth to plaintiffs. To prove the said fact, the petition in I.A.No.251 of 2016 in O.S.No50 of 2014 was filed for DNA test.

9. The plaintiffs have filed documents to prove the fact that they are the legal heirs of the said Krishnasamy Naicker. Further, the respondents have not consented for DNA test.

10. The paragraph Nos.13, 16 & 17 of the Judgment reported in C.A.No.6153 of 2021 in the case of Ashok Kumar Vs. Raj Gupta & Ors., the Hon'ble Supreme Court held as follows:

...

“13. DNA is unique to an individual (barring twins) and can be used to identify a person's identity, trace familial linkages or even reveal sensitive health information, whether a person can be compelled to provide a sample for DNA in such matters can also be answered considering the test of proportionality laid down in the unanimous decision of this Court in K.S.Puttaswamy v. Union of India, wherein the right of privacy has been declared a constitutionally protected right in India. The Court should therefore examine the proportionality of the legitimate aims being pursued, i.e., whether the same are not arbitrary or discriminatory, whether they may have an adverse impact on the person and that they justify the encroachment upon the privacy and personal autonomy of the person, being subjected to the DNA Test. It cannot be overlooked that in the present case, the application to subject the Plaintiff to a DNA Test is in a declaratory suit and the plaintiff has already adduced evidence and is not interested to produce additional evidence (DNA), to prove his case.”

16. The respondent cannot compel the plaintiff to adduce further evidence in support of the defendants' case. In any case, it is the burden on a litigating party to prove his case adducing evidence in support of his plea and the Court should not compel the party to prove his case in the manner, suggested by the contestin