IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 19"' DAY OF OCTOBER,
BEFORE _ n T
THE HON'BLE MR. JUSTICE A.N. vERAOGOPA;LRGjOW'OA--gV .4"
WRIT PETITION NO.18616/_20:.1...(4)AACGES/i--':CPC)"».'v».._LH__:gf E A
BETWEEN:
Sri Hanumanthachar,
S/o. late Sri N.Venkatag:har,
Aged about 42 years, '
Residing at No.712, " '
Nethajinagara, Chokkasa_n§Oira,O'."'_.'V
T.Dasarahai|i, g _
Bangalore -- 5550 =i
(By Sri
AND:
1. Smt:";~.H'a.nuinat{:i.'(a.gV
W/o. late S ri M.V'er.ka"ta_c'har,
Major. ' I
_____
_ S/ofilate" Sri N.Ven3<atachar,
3; A 5.4 v. r,
S./o. ,_i'atefSri N.Ven|<atachar,
Majori
* 'All are residing at
x_L,e'_ggere, Rajeswarinagar,
Bangalore --- 560 058.
PETITIONER
RESPONDENTS
A “(By Sri G.Chandrashe3<haraiah, Adv. for R1 to R3)
This writ petition is filed under Articles 226 and 227
of the Constitution of India praying to quash the order
dated 19.2.2010 passed by XLIII Additional City'–,Civil
Judge (CCH-4-4) Bangaiore on I.A.No.8 _fi,|edf-._in
O.S.No.2536/2004 as per Annexure -~ F. 2
This petition coming on for final hearing*i;hisj,'diay,'Athief'
Court made the following:
ORDER;
Respondents/plaintiffslllhaye instituvtedV-.:s’uit””ag’ainst”” V
petitioner/defendant for partiti–oxn”van”d.,Aseplarate possession
claiming share in the suit-.scheduie”‘pirogperties contending
that, the 15* pla’intiff,’i’s””‘the l’eg:al.ly Vwiadded wife of late
i\£.Veni<vata'c.hair lalnfi; piai 2"and":3 were born out of their
said wedlock; the written statement
and has dlenied of the plaintiffs including their
with'~–.–!–ate Venkatachar. Indisputably, the
'd.ie'fe~nda..nti son of iate Venkatachar. Based on the
rnateriai 'plejad'ings, the Trial Court has framed issues on
f.'1G.6".2.0V'"09.V It appears, part of the trial of the suit has
A Cftaklen, place. Before the trial of the suit is complete,
piaintiffs filed I.A.8 under $3.151 CPC to isgue directions to
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the parties to the suit to undergo DNA test to know the
blood relation of the defendant with plaintiffs 2 an,cj..V'3_,:'_"i.'lV'_he
defendant filed statement of objections and _o:pp'os'ed__j:t.h_e'
prayer in I.A.8 reiterating that there is nor—-re:liati:o'nship
whatsoever nature between his :,faath:eriy.ancl_'the*-
The Trial Court has allowed the application
the 1st plaintiff is claiming to bne~V.Tttie_vViegVaily'y_VVw'edded wife of
late Venkatachar and Vlan_d..v,Vl3"«werebegotten out
of the wedlock which i'§1_Ct:'.iAsV deni:ed'"«.Wl'lt'i1i§–V"defendant and
in the circumstahc-eVsL..vforithe seeing the blood
relation bétwee'ri»_ DNA test is necessary.
Said order has by the defendant.
Indisputa~b’iy,”‘-the trial of the suit is not complete.
,,..,I.A’;’:8″:’ou’ght’i-to havewbeven rejected as premature. It is only
.._a’ftjéer’the»..ypartrir9§i..have led evidence and if a strong case is
made the evidence on record with regard to
7..«.__’V-.,re|atioh.s__hip between the parties, the application can be
“‘l:lco.nsiAtiered in the light of catena of decisions of the Apex
“Court, more particularly in the case of BHABANI PRASAD
5/
r 5»
JENA vs. CONVENOR SECRETARY, ORISSA STATE
COMMISSION FOR WOMEN ANUANOTHER (201-D’}–e8~«.:S*C.
633).
3. The impugned order wheVnMper’usVed_, i-It
the trial court has not taken cons.i.’de’rat’ion–.Aithel’
evidence which has come on”*re’cord of” ‘HLHearned
counsel for the petitioner/deifeVn’d-aéntiread portions of
the cross–examination’–to-f’V_l’ViI’.’i’V w.h’i’c.lfj1_~r__s.l1ows that the
plaintiff/PW.;.. married to one
Mahimanna4″a’n’Cl~’:oiJt=. they have 2 children
and aiiive.ll She has also admitted
that and Mahimanna has not
been’drssVo’l–*./ed .bVyf._ to any judlciai proceedings.
Wit’:h’eut._.reference’toevidence on record, the impugned
‘ovrd’erjAh’as’bVeien ‘mechanically passed.
In_”t’ire:”result, the writ petition stands allowed and the
;”‘impugn’ed order stands quashed. I.A.8 stands dismissed
premature. However, it is open to the parties to seek
appropriate relief after the trial of thgsuit is complete. If
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any application is fiied seeking reference to DNA test, the
Trial Court shall consider the same keeping in-fvi~ew_”‘t.he
evidence on record and the law deciared by tire”
in the decision noted supra,
Ksj/–