Karnataka High Court
Uggesh S/.Oi. Chikka Harikantra vs Sri.Vasu S/O. Chikka Tandel on 20 February, 2024
Author: V.Srishananda
Bench: V.Srishananda
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NC: 2024:KHC-D:4189
MSA No. 100006 of 2019
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 20TH DAY OF FEBRUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE V.SRISHANANDA
MISCELLANEOUS SECOND APPEAL NO.100006 OF 2019 (RO)
BETWEEN:
UGGESH S/.O. CHIKKA HARIKANTRA
AGE: 52 YEARS, OCC:FISHERMAN,
R/O. BHAVIKERI, ANKOLA.
...APPELLANT
(BY SRI. SANTOSH B.MANE, ADVOCATE)
AND:
SRI. VASU S/O. CHIKKA TANDEL,
AGED ABOUT 67 YEARS, OCC:FISHERMAN,
R/O. BHAVIKERI, ANKOLA.
...RESPONDENT
(BY SRI. S.V. YAJI, ADVOCATE)
Digitally signed
by SAMREEN
SAMREEN AYUB
DESHNUR
THIS MISCELLENEOUS SECOND APPEAL U/SEC. 43 RULE
AYUB Date:
DESHNUR 2024.02.23
16:38:44
1 (u) OF CPC, AGAINST THE JUDGMENT & DECREE DATED:
+0530
29.08.2018 PASSED IN RA. NO:77/2017 ON THE FILE OF THE
SENIOR CIVIL JUDGE, ANKOLA, ALLOWING THE APPEAL AND
SET ASIDE THE JUDGMENT AND DECREE DATED: 18.01.2017
PASSED IN OS NO.69/2013, ON THE FILE OF THE CIVIL JUDGE,
ANKOLA, DISMISSING THE SUIT FILED FOR PARTITION AND
SEPARATE POSSESSION.
THIS MISCELLENEOUS SECOND APPEAL, COMING ON
FOR ADMISSION, THIS DAY, THE COURT DELIVERED THE
FOLLOWING:
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NC: 2024:KHC-D:4189
MSA No. 100006 of 2019
JUDGMENT
Heard Sri.Santhosh B. Mane, learned counsel for the appellant and Sri.S.V.Yaji, learned counsel for the respondent.
2. Present appeal is filed challenging the validity of the judgment and award passed in Regular Appeal No.77/2017 dated 29.08.2018 on the file of Senior Civil Judge, Ankola.
3. Brief facts of the case are as under:
A suit came to be filed in O.S.No.69/2013 on the file Civil Judge, Ankola, which came to be dismissed on the ground that the plaintiff failed to prove their relationship with common prepositus by judgment dated 18.01.2017.
4. Being aggrieved by the said judgment and decree, plaintiff filed a Regular Appeal in 77/2017.
5. Appeal was contested by the defendant. -3-
NC: 2024:KHC-D:4189 MSA No. 100006 of 2019
6. After securing the trial Court records and hearing the parties in detail, the First Appellate Court allowed the appeal.
7. Being aggrieved by the remand of the suit to the Trial Court for fresh disposal and with regard to the DNA test ordered by the First Appellate Court, the defendant has preferred the present appeal.
8. Sri.Santosh Mane, learned counsel reiterating the grounds urged in the appeal memorandum vehemently contended that the question of relationship is to be established strictly in accordance with law as per Section 50 of Indian Evidence Act and instead of directing the parties to place such an evidence on record, sou-moto the learned Judge has directed the plaintiff to place evidence on record by DNA test and defendant was forced to furnish the sample for DNA test in the impugned order and sought for allowing the appeal.
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NC: 2024:KHC-D:4189 MSA No. 100006 of 2019
9. Per contra, Sri.S.V.Yaji, learned counsel for respondent/plaintiff while supporting the order of remand, fairly submitted that no application was made by the plaintiff before the First Appellate Court for DNA test.
10. However, he submitted that the Trial Court failed to understand the nature of proof required for establishing the relationship among the parties and therefore, the First Appellate Court was justified in remitting the matter to the Trial Court for placing necessary evidence on record to prove their relationship and sought for passing appropriate orders.
11. Having heard the parties, this Court perused the material on record meticulously.
12. On such perusal of the material on record, admittedly, suit of the plaintiff came to be dismissed by the Trial Court on the ground that plaintiff failed to prove the relationship of plaintiff with the defendant. -5-
NC: 2024:KHC-D:4189 MSA No. 100006 of 2019
13. Being aggrieved by the same, plaintiff filed an appeal before the First Appellate Court.
14. Learned Judge in the First Appellate Court while dealing with the respective contentions of the parties, in paragraph No.22 has held as under:
21. On the other hand, this plaintiff contended that, he is the son of Chikka and his father was also called Tandel and Harikantra. He brought my notice to the Ex.P.7 election voter list, wherein his father's name was mentioned as Chikka. He further contended that, the name of the defendant also mentioned as son of Chikka Tandel which shows that his father was also called as Tandel. In support of his claim, he relied the cross-examination of this D.W.1. This D.W.1 in his cross-examination admits that, his son name is Chandrashekhar Harikantra.
He identified his son's photo in a voter list Ex.P.7 wherein his son's name was mentioned as Chandrashekhar Harikantra. He further admits that, he is also called by name Yogesha and also as Uggesha. His name was mentioned as Tandel Yogesh S/o Chikka. He specifically admits that -
"ನನ ಊ ನ ೕ ಶ ಮ ಉ ೕಶ ಎಂಬ ಎರ
ಸ ಗ ಂದ ಕ ಎಂದ ಸ ."
15. No doubt, DNA test is a scientific method of placing the evidence on record. But as a matter of course, DNA test should not be ordered by the Court as per settled -6- NC: 2024:KHC-D:4189 MSA No. 100006 of 2019 principles of law that too when there is no application filed by the parties in this regard.
16. Further, furnishing the biological samples for the DNA test is invasion to privacy which is protected under Article 21 of Constitution of Indian.
17. Therefore, when the Court is of the opinion that there is no other possibility of proving the relationship and when there is an assertion by one party and denial by the other party, on an application, the Court may order for DNA test in a given case. Ordering the DNA test is not the rule but it is an exception.
18. In the case on hand, without there being any application by any of the parties, First Appellate Court on its own in paragraph No.21 of the impugned order held that the DNA sibling test compares genetic material of one person with another person to determine the likelihood of their biological related and directed the parties to the suit to furnish the biological samples.
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NC: 2024:KHC-D:4189 MSA No. 100006 of 2019
19. Therefore, this Court is of the considered opinion that there is sufficient force in the argument put forward on behalf of the appellant/defendant that the First Appellate Court has exceeded in its limit in directing the parties to furnish the biological samples for the DNA test.
20. Therefore, to that extent, the impugned judgment needs interference at the hands of this Court by exercising the power vested in this Court under Order XLIII Rule 1(u) of CPC.
21. The First Appellate Court in its discretion allowed the application filed under Order XLI Rule 27 of CPC and permitted the parties to place additional evidence on record. Since, the additional evidence is said to be allowed for the first time to come on record, an opportunity needs to be provided for the appellant/defendant to meet the case of the plaintiff in respect of additional evidence.
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NC: 2024:KHC-D:4189 MSA No. 100006 of 2019
22. Therefore, remitting the matter to the Trial Court is just and proper. Since, it is an open remand as is contemplated under Order XLI Rule 25 CPC, the First Appellate Court ought to have fixed some time limit having regard to the suit being of the year 2013. Therefore, appropriate orders are to be placed.
23. Hence, following:
ORDER i. Appeal is allowed in part, while maintaining the order of maintenance of the suit to the Trial Court in O.S.No.69/2013 directing the parties to furnish the biological samples for the DNA test is set aside.
ii. The plaintiff is permitted to place additional evidence on record to prove the relationship of plaintiff with the defendant.
iii. If any such additional evidence is placed on record, needless to emphasise that the defendant has got every right to oppose the additional evidence by placing rebuttal evidence on record.-9-
NC: 2024:KHC-D:4189 MSA No. 100006 of 2019 iv. Parties shall appear before the Trial Court without further notice on 18.03.2024.
v. Thereafter, Trial Court shall afford necessary opportunity for the parties and dispose of the suit afresh, in accordance with law on or before 20.12.2024.
Sd/-
JUDGE KAV List No.: 2 Sl No.: 45