DNA Test – Application for conducting DNA Test of the plaintiff allowed to prove denial of relationship as contended by plaintiff

Mr. Amit Rawal, J.:- The present revision petition is preferred against the order dated 28.11.2017 (Annexure P-5), whereby the application preferred by the petitioner-defendants for conducting Deoxyribo Nucleic Acid (for short “DNA”) test of the respondent-plaintiff, in a suit preferred by him for declaration to be owner in possession of the property No.496, Pahari Bazar Upper Chowk Kalka and Property No.738 Main Bazar, Kalka and with consequential relief of permanent restraint, has been dismissed.

2. Mr. Akshay Jindal, learned counsel appearing on behalf of the petitioner-defendants submitted that the respondent-plaintiff claimed to be coparcener in the family of his father Trilok Chand and sought the declaration in the aforementioned manner.

3. Petitioners in the written statement denied the plaintiff to be son of Trilok Chand and laid claim on the property subsequently inherited by their mother Smt.Sona Devi on the basis of the Will dated 16.04.1982 registered on 25.04.1982 and defendants are the only rightful owners of the suit property.

4. Plaintiff examined many witnesses and when the suit was slated for defendants’ evidence, an application (Annexure P-3) for conducting DNA test was submitted which was opposed by the other side. The importance of DNA test and admissibility as evidence has been examined by various Court as the aforementioned test establishes the relationship between the parties. It is a double edged weapon, which can always go against either of the side. Sufficient evidence has been brought on record to establish that plaintiff was not the son of Trilok Chand. Maternal uncle, i.e., Mama DW-5 Maya Ram in this regard has also been examined. In support of the aforementioned submissions, relied upon the following case law:-

“1) Rajli @ Rajjo Versus Kapoor Singh and others, [2014(3) Law Herald (P&H) 2214] : 2013 (31) R.C.R. (Civil) 798;

2) Sube Singh Versus Smt. Shanti Devi and others, [2014(5) Law Herald (P&H) 4421 : 2015(1) Marriage L.J. 106 (P&H)] : 2015 (5) R.C.R. (Civil) 684; and

3) Harjinder Kaur Versus State of Punjab and others, 2013(2) Cri.CC 459.”

5. Per contra, Mr. R.P.Singh Ahluwalia, learned counsel for respondent No.1 and Ms.Surabhi Kaushik, Advocate for Mr.Prateek Mahajan, learned counsel for respondent No.3 submitted that it is not a matter of right that the aforementioned science can be pressed into service as the Court has no authority or power to order DNA test. Such test impinges the personal hide and it is to be done only in deserving cases. Section 50 of the Indian Evidence Act envisages proving the relationship with the deceased and the testator and evidence in such circumstances has already been led. The Court can always render the decision on the basis of the evidence and, therefore, the application is nothing but an abuse of the process of law and, thus, prayed for dismissal of the revision petition by upholding the impugned order.

6. I have heard the learned counsel for the parties and appraised the paper book.

7. Both the parties, concededly, have led extensive evidence in support of the pleadings. In Neelam Rani and others Versus Smt.Mainka @ Maina Devi and another, [2014(4) Law Herald (P&H) 3350 : 2014(2) Marriage L.J. 392 (P&H)] : 2014(2) R.C.R. (Civil) 540, the Court held as under:-

“2. After hearing the learned counsel for the petitioners, going through the record with his valuable assistance and after considering the entire matter deeply, to my mind, there is no merit in the instant petition in this context.

3. Ex facie, the argument of learned counsel that since no ground is made out, so, the trial court committed the legal mistake to direct the parties, to undergo the DNA Test, lacks merit.

4. As is evident from the record that initially, respondentplaintiff Smt.Mainka alias Maina Devi d/o Rai Sahab son of Shishpal (for short “the plaintiff”), has instituted the civil suit (Annexure P1) for a decree of declaration to the effect that she is joint owner and in possessi