Karnataka High Court
Smt K M Suma vs Smt Manjula on 2 July, 2015
Author: A.V.Chandrashekara
Bench: A.V.Chandrashekara
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 02ND DAY OF JULY 2015
BEFORE
THE HON'BLE MR. JUSTICE A.V.CHANDRASHEKARA
WRIT PETITION NO.24178/2015 (GM-CPC)
BETWEEN:
SMT K M SUMA
W/O NANJUDAPPA ,
AGED 46 YEARS,
R/O 4TH CROSS, GOUTHAM BADAVANE,
29TH WARD,
GUTTALU,
MANDYA CITY,
MANDYA DISTRICT 571436
... PETITIONER
(By Sri: PRAMOD R, ADV.)
AND
1. SMT MANJULA
W/O MANJUNATHA
AGED 34 YEARS,
R/O DOOR NO.97, 1ST FLOOR,
DEVARAJAURS LAYOUT,
DAVANAGERE 571228
2. SRI MURUGAPPA
W/O MAHADEVAPPA,
AGED 67 YEARS,
R/O 3RD CROS, CHENNEGOWDA,
BADAVANE, 30TH WARD,
2
GUTTULU,
MANDYA CITY 571436
... RESPONDENTS
(By Sri: S GANGADHAR AITHAL, ADV. FOR R1 & 2)
THIS W.P. IS UNDER ARTICLE 227 OF CONSTITUTION
OF INDIA FILED PRAYING TO CALL FOR RECORDS ON THE
FILE OF PRINCIPAL DISTRICT & SESSIONS JUDGE,
DAVANAGERE IN R.A.NO.71/2011 AND ETC.
THIS WRIT PETITION COMING ON FOR
PRELIMINARY HEARING THIS DAY, THE COURT MADE
THE FOLLOWING:
ORDER
Heard the learned counsel for the parties. With the consent of the learned counsel for the parties, matter is taken up for final hearing.
2. Order dated 12.12.2013 passed in R.A.71/2011 pending on the file of Principal District and Sessions Judge, Davanagere is called in question in the present petition.
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3. Regular appeal no. R.A.71/2011 is filed under Section 96 of CPC by the defendants of O.S.89/2008 which was pending on the file of Prl. Civil Judge (Sr.dn.), Davanagere. The suit filed against the defendants for relief of partition and separate possession in O.S.89/1998 came to be dismissed, as against which, they have filed R.A.71/2011. During the pendency of the appeal, they chose to file an application under Order 26 Rule 10 of CPC with a request to direct the appellant Smt.K.M.Suma and respondent No.2 Murugeshappa for DNA test. The said application has been allowed mainly on the ground that this Court has made some observation in W.P.18555/2011 while Manjula and Murugeshappa had approached this Court requesting the court to issue of commission for Scientific investigation by way of DNA test to ascertain the relationship between the Murugeshappa and Suma. That petition came to be disposed of giving liberty to make such application before the First Appellate Court if the Court records a finding 4 which goes against the petitioners therein and if the finding rests on feeble evidence. While disposing of the said petition, the learned Judge of the first appellate Court has assigned reasons in paragraph 7, main reliance is placed on the observation made in W.P.18555/2011. No critical examination of the objections and written statement to examine is made.
4. What is held by this Court in Sri.Hanumappa v. Yallakka and Others (2015 (1) Kar.L.r. (Civ) 246) [W.P.8815/2014 (GM CPC)] disposed of on 3.9.2014 is that DNA test should not be ordered on mechanically and strong prima facie case is required to rebut the presumption available under Section 112 of Evidence Act.
5. For considering any application, reasons have to be assigned and the reasons should be logic and no such reasons are forthcoming to allow the application. 5 Hence, the petition is to be allowed and matter needs to be remanded to consider afresh.
6. Accordingly, petition is allowed. The impugned order is set aside. The matter is remanded to the First Appellate Court to consider afresh in the light of decision stated above rendered inW.P.8815/2014 disposed of on 3.9.2014.
7. Even otherwise applications filed under Order 26 Rule 9 or Order 6 Rule 17 of CPC under order 41 Rule 27 of CPC will have to be considered along with merits. Such applications should not be taken up independently in regular appeal.
8. Therefore, the learned Judge is advised to consider application along with merits and if he has to allow the same, decision on merits would be deferred and if he is to reject the same, he is expected to pronounce the judgment.
Sd/-
JUDGE DM