The main legal point established in the judgment is the necessity for prima facie evidence and specific directions to the Commissioner for ordering a DNA test, the presumption of legitimacy under Section 112 of the Evidence Act, and the importance of balancing the interests of the parties before ordering a DNA test.

ORDER :

Gudiseva Shyam Prasad, J.

This civil revision petition is directed against the order dated 16.03.2018 in I.A.No.1340 of 2013 in O.S.No.591 of 2012 passed by the learned Senior Civil Judge, at Khammam. The revision petitioner is the plaintiff who filed a suit for partition and separate possession against the respondents 1 to 8/defendants. In the said suit, the petitioner has filed above interlocutory application under Order 26, Rule 10 of Civil Procedure Code praying the Court to forward the blood samples of the petitioner/plaintiff and respondent No.1/defendant No.1 for scientific examination of the DNA profile. The brief averments of the petition affidavit filed before the trial court in the said application of the petitioner is that the petitioner has filed suit O.S.No.591 of 2012 partition and separate possession against the respondents herein. The petitioner has also filed the above application for sending the samples of the blood of the petitioner and respondent No.1 for scientific examination to determine the paternity of the 1st defendant, as the defendants have denied the relationship between 1st defendant and the plaintiff. It is the contention of the plaintiff that he was born to the 1st defendant and one Yakamma. The 1st defendant has denied that the petitioner was born to them. Therefore, the petitioner/plaintiff has filed the petition to prove his paternity.

2. The respondents/defendants have filed their counter contending that the petitioner is not at all the son of respondent No.1 and the mother of the petitioner Yakamma married G. Mallesam and later developed illicit intimacy with several persons, namely Saidulu and Veerabhadram and others.

3. The trial Court, on consideration of the pleadings of the petitioner and respondents, has allowed the application ordered for a DNA test to prove the paternity of the petitioner plaintiff.

4. Aggrieved by the impugned order this revision has been preferred.

5. The point for consideration in this revision is that whether the order passed by the learned Senior Civil Judge is suffering with any infirmity and whether it is illegal, as it may affect the rights of the parties.

6. Admittedly, the plaintiff has filed a suit for partition and separate possession against the defendants 1 to 8. The case of the plaintiff is that he is the son of defendant No.1. He was born to defendant No.1 and one Yakamma. Therefore, there is a dispute with regard to paternity of the plaintiff for claiming his rights in the property. Unless the plaintiff establishes that he is the son of 1st defendant, he cannot claim any rights in the suit schedule property.

7. Admittedly, this is a suit filed for partition and separate possession and the relationship of the plaintiff and defendant must be established for dividing the shares. The burden is on the plaintiff to prove that he is the son of 1st defendant, as the 1st defendant has denied the relationship between the plaintiff and himself. Therefore, the plaintiff has filed an interlocutory application before the trial court under Order 26, Rule 10 CPC praying the Court to forward the blood samples of petitioner/plaintiff for scientific examination of DNA profile.

8. Order 26, Rule 10 CPC deals with the procedure of Commissioner to be adopted in a case where a Commissioner was appointed for local investigations. The said provision is not applicable to the facts of the present case.

9. Order 36, Rule 10A may be applicable to the facts of the present case. Rule 10A reads as under.

Where any question arising in a suit involves any scientific investigation which cannot, in the opinion of the court, be conveniently conducted before the Court, the Court may, if it thinks it necessary or expedient in the interests of justice so to do, issue a commission to such person as it thinks fit, directing him to inquire into such question and report thereon to the Court.

(2) The provisions of rule 10 of this Order shall, as far as may be, apply in relation to a Commissioner