Mr. Rajiv Narain Raina, J.: - The challenge in this petition is to the order dated 17th January, 2013 passed by the Additional Civil Judge (Senior Division), Hisar directing plaintiff Nos.1 and 2 and defendant No.1 to appear before the Forensic Science Laboratory, Maduban, Karnal to give blood sample for DNA profiling test at the expense of the plaintiffs. The parties were directed to appear on 20th February, 2013 for drawing blood sample.

2. The dispute in the suit is with respect to rights and shares in the suit property. The suit instituted by the petitioner is for declaration of ownership and possession to the extent indicated in the head note to the plaint. The family pedigree table is found at page 25 of the paper book.

3. Plaintiff No.1 Shanti Devi asserts that she and her late sister Kesho were born from the marriage of Birsala @ Risala and Nikia Devi. After the death of Birsala @ Risala their mother Nikia Devi married Vijay Singh @Baje Singh brother of Birsala. Indisputably, from the second marriage, Sube Singh/defendant No.1 and late Harish Chander were born. Therefore, Shanti Devi, late Kesho, Sube Singh and late Harish Chander were born from the same womb of Nikia Devi. It is pleaded that the contesting parties are step brothers and sisters.

4. Resisting the suit Sube Singh has refuted that Nikia Devi is the common mother alleging that she never married Birsala @ Risala and plaintiff No.1 Shanti Devi and Kesho (deceased) were not born from the womb of Nikia Devi and there is no commonality of blood between them. When plea of denial was entered by the defendant in the suit, plaintiff No.1 moved an application praying that DNA profile test be conducted between the parties for removal of doubt as to maternity. The application was seriously contested as being not maintainable; there is no provision in the CPC to order such test against defendant’s wishes and for these reasons dismissal of the application was prayed for.

5. The plaintiff submitted that truth could easily be ascertained by comparison of the genetic code of the parties to establish relationship by common dissent through maternal line from a common ancestor. This was resisted by Sube Singh defendant No.1 arguing that DNA test is not a substitute for evidence. It is complained that the plaintiff wants to prove her case without leading any evidence by a simple scientific test.

6. The trial Judge has accepted the prayer for the conduct of a DNA profile test by his order dated 17th January, 2013. This petition was filed on 26th February, 2013. When the matter came up on 27th February, 2013 none appeared for the petitioner and the matter was posted on 12th March, 2013 on which date notice of motion was issued returnable on 14th May, 2013. Thereafter, time was spent in serving the respondents. Since there was no stay of further proceedings by this Court, the trial Judge has by order dated 18th February, 2014 taken recourse to enforce his order by granting police help and use of force to carry out the DNA profiling test.

7. The blood matching has been ordered by the trial judge to be done between plaintiff Nos.1 and 2 and defendant No.1 (Sube Singh) by the Forensic Science Laboratory, Madhuban, Karnal. CM No.3865-CII of 2014 has been preferred praying for placing on record the order dated 18th February, 2014 while CM No.3864-CII of 2014 has been filed with a prayer for staying the operation of the order dated 18th February, 2014 during the pendency of the present revision petition. The applications are taken on record. Right to file replies are waived by learned counsel for respondent Nos.1 to 4 since the matter is taken up for final disposal by consent.

8. Heard the learned counsel for the parties at length.

9. The trial Judge has relied upon the decision of the Andhra Pradesh High Court ruling in Marada Venkateshwra Rao vs. Oteti Vara Lakshmi & others, 2008(4) RCR (Criminal), 155 that where there is a conflict whether plaintiff and defendant were born