Smt. Baby, 45 Years vs Smt. Mangalamma, 61 Years on 26 July, 2018

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Karnataka High Court

Smt. Baby, 45 Years vs Smt. Mangalamma, 61 Years on 26 July, 2018

Bench: S.G. Pandit

                         -1-




IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 26th DAY OF JULY 2018

                        BEFORE

        THE HON'BLE MR.JUSTICE S.G. PANDIT

       WRIT PETITION No.32064 of 2018(GM-CPC)

Between:

SMT. BABY, 45 YEARS
D/O LATE KRISHNAPPA
R/AT NO.214, OLD TOWN
KEMPEGOWDA STREET
MANDYA 571401                      ... PETITIONER

(By Sri.PRABHUGOUD B TUMBIGI, ADVOCATE)

AND:

1.SMT. MANGALAMMA, 61 YEARS,
W/O LATE KRISHNAPPA

2.SRI VENKATAPPA, 32 YEARS
S/O LATE KRISHNAPPA

3.SRI SRINIVASA, 35 YEARS,
S/O LATE KRISHNAPPA

4.SRI SHIVA, 33 YEARS
S/O LATE KRISHNAPPA

ALL ARE R/AT NO.214, OLD TOWN
KEMPEGOWDA STREET,
MANDYA -571401                    ... RESPONDENTS
                             -2-




     THIS WRIT PETITION IS FILED UNDER ARTICLE 227
OF THE CONSTITUTION OF INDIA PRAYING TO QUASH
THE IMPUGNED ORDER DATED 24.02.2018 PASSED BY
THE HON'BLE PRINCIPAL CIVIL JUDGE AND J.M.F.C.
MANDYA, IN O.S.NO.439/2009 ON I.A.IX FILED UNDER
ORDER XXVI RULE 10-A R/W SECTION 151 OF THE CIVIL
PROCEDURE CODE PRODUCED VIDE ANNEXURE-A TO
THE WRIT PETITION AND TO DIRECT THE TRIAL COURT
TO ALLOW THE APPLICATION FILED BY THE PETITIONERS
UNDER ORDER XXVI RULE 10-A R/W SECTION 151 OF
THE CIVIL PROCEDURE CODE, PRODUCED VIDE
ANNEXURE-D.

      This writ petition coming on for preliminary hearing
this day, the Court made the following:

                          ORDER

The petitioner is before this Court under Article 227 of the Constitution of India assailing the order dated 24.02.2018 passed on I.A.No.9 in O.S.No.439/2009 by the Principal Civil Judge and JMFC, Mandya.

2. The petitioner is the first defendant and respondents are plaintiffs in O.S.No.439/2009 which is filed for partition and separate possession of 1/6th legitimate share each in the suit schedule property. When the matter was at the stage of arguments, the -3- first defendant-petitioner herein filed an application under Order XXVI Rule 10 (A) read with Section 151 of CPC seeking for a direction to first plaintiff and first defendant to undergo DNA test by giving blood samples to find out the true relationship between them as mother and daughter, which was opposed by the plaintiff. The trial Court by its order dated 24.2.2018 rejected the application, which is impugned in this writ petition.

3. Heard the learned counsel for the petitioner and perused the impugned order.

4. The counsel for the petitioner submits that the suit is one for partition filed by the respondents- plaintiffs wherein the first plaintiff/first respondent herein claims that the petitioner/first defendant is her daughter. He further submits that the petitioner-first defendant has filed written statement denying the relationship with the first plaintiff and submits that she -4- is the daughter of one Krishnappa and Savithramma and not the daughter of plaintiff-Smt.Mangalamma. As there is insufficient evidence on record, she filed an application under Order XXVI Rule 10A to refer both the first plaintiff and first defendant to undergo DNA test by giving blood sample and that the same is very much necessary for deciding the issue involved in the suit.

5. The suit is for partition. The plaintiff-first respondent herein claims that the first defendant- petitioner herein is her daughter born through her and one Krishnappa. The defendants have denied the same. The application filed by the first defendant-petitioner for DNA test is rightly rejected by the trial Court holding that both parties have already let in evidence and the evidence lead by the parties is sufficient for deciding the subject-matter of the suit. The plaintiffs and defendants have produced documents before the Court which the trial Court has noted in its order. The DNA -5- test, as held by this Court in the case of Hanumappa .vs. Yalakka and others reported in 2014(5) KCCR 1317, has to be ordered only in exceptional circumstances and shall not be ordered in routine manner. Therefore, taking note of the same, the trial Court has passed the impugned order, which does not require interference by this Court. The trial Court has not committed any error or illegality in rejecting I.A.No.9 filed under Order XXVI Rule 10A by the petitioner.

6. The writ petition is dismissed as devoid of merit.

Sd/-

JUDGE *alb/-

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