Gujarat High Court
Amrtulal Amthabhai Mistri vs Ashwinkumar Amrutlal Mistri on 24 October, 2019
Equivalent citations: AIR 2020 GUJARAT 4, AIR 2020 GUJRAT 4, AIRONLINE 2019 GUJ 455
Author: A. P. Thaker
Bench: A. P. Thaker
C/AO/71/2019 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/APPEAL FROM ORDER NO. 71 of 2019
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2019
In
R/APPEAL FROM ORDER NO. 71 of 2019
FOR APPROVAL AND SIGNATURE:
HONOURABLE DR.JUSTICE A. P. THAKER Sd/-
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1 Whether Reporters of Local Papers may be allowed to NO
see the judgment ?
2 To be referred to the Reporter or not ? NO
3 Whether their Lordships wish to see the fair copy of the NO
judgment ?
4 Whether this case involves a substantial question of law NO
as to the interpretation of the Constitution of India or any
order made thereunder ?
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AMRTULAL AMTHABHAI MISTRI
Versus
ASHWINKUMAR AMRUTLAL MISTRI
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Appearance:
ABHISST K THAKER(7010) for the Appellant(s) No. 1
BHARATKUMAR K VIZODA(8026) for the Respondent(s) No. 1
MR AMRITLAL N VINZODA(10274) for the Respondent(s) No. 1
MR NIKHILESH J SHAH(3007) for the Respondent(s) No. 1
RULE SERVED BY DS(65) for the Respondent(s) No. 2
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CORAM: HONOURABLE DR.JUSTICE A. P. THAKER
Date : 24/10/2019
ORAL JUDGMENT
1. Being aggrieved and dissatisfied with order dated 6.3.2019 passed by learned Family Court at Ahmedabad in the Page 1 of 19 Downloaded on : Fri Oct 25 23:07:20 IST 2019 C/AO/71/2019 JUDGMENT Family Suit No.1918 of 2016, whereby the appellant is directed to undergo DNA test, the appellant has preferred present appeal.
2. The brief facts of the case are that the plaintiff i.e. respondent no.1 has instituted Family Suit No.1918 of 2016 alleging that the appellant herein, who is defendant no.1 in the suit is biological father of plaintiff, who has born from the relationship of defendant no.1 and defendant no.2. It is also alleged that defendant no.2 Manjulaben got married with one Shri Bhimjibhai, who has died on 7.5.1979 and who happens to be the first husband of Manjulaben, mother of the plaintiff. It is also alleged that after the death of Bhimjibhai, first husband of defendant no.2-Manjulaben, she got married with Amrutlal, defendant no.1, as per the Hindu rituals at Mahakali Temple, Dudheshwar, Ahemdabad, and thereafter they were living as husband and wife openly in the society. It is also alleged that out of said wedlock with Amrutlal, Manjulaben gave birth to present plaintiff on 23.5.1981. It is also alleged that the plaintiff was living happily with his mother and father and defendant no.1 was also visiting Sujan Bungalows at Shreyas Foundation, Ambawadi, Ahemdabad, where other members of the family were residing. It is also contended that defendant no.1 being natural father of the plaintiff, he was represented as son of defendant no.1 in the school where he was studying and also applied for certificate of Socially and Economically Backward Class. He was also shown as family member in the ration card. It is also alleged that defendant no.1 althroughout accepted the plaintiff as son in all the documents, wherein name of defendant no.1 has been mentioned as the father of the plaintiff. It is also alleged that present defendant no.1 has Page 2 of 19 Downloaded on : Fri Oct 25 23:07:20 IST 2019 C/AO/71/2019 JUDGMENT also accepted Gitaben, sister of present plaintiff as his daughter, who happens to be daughter of earlier husband of Smt.Manjulaben. It is also alleged that defendant no.1 also attended various ceremonies of relatives of the plaintiff. It is alleged that suddenly defendant no.1 has refused to enter the name of present plaintiff as a member of his family in family directory of Mevada Dotor Community, as also refused to recognize present plaintiff as son, due to that he has filed present suit.
2.1 According to the plaintiff, DNA test is essential for confirmation of status of defendant no.1 as the father of the plaintiff, which will give him right to live life with dignity and free from stigma. Contending all these facts, the plaintiff has sought for interim relief directing defendant no.1 to undergo DNA test. It is also contended that earlier he has filed petition under Article 226 of the Constitution of India being Special Civil Application No.8774 of 2014, wherein this Court has asked the plaintiff to approach trial Court and, therefore, he has withdrawn the same. Thereafter, he has filed the suit with an application for DNA test of defendant no.1.
2.2 It appears that, after hearing both the sides, learned Judge of the Family Court has passed the order directing defendant no.1 to undergo DNA test as prayed for by the plaintiff.
3. Being aggrieved and dissatisfied with above order, defendant no.1 has filed this appeal, inter alia, contending that the plaintiff has not produced any prima facie proof that he is son of the appellant-defendant no.1. It is also contended that Page 3 of 19 Downloaded on : Fri Oct 25 23:07:20 IST 2019 C/AO/71/2019 JUDGMENT defendant no.2 is having three siblings and only the plaintiff has filed the suit. It is also contended that plaintiff's mother was duly married with Shri Bhimjibhai. It is also contended that no one can be compelled to give sample of blood for analysis. It is also contended that same prayer has been asked for in the suit itself and if the prayer in the nature of interim relief is granted then it will amount to passing the decree at interim stage. It is also contended that the Court ought not to have granted any relief, which would amount to granting permanent relief at an interim stage. According to him, just to defame the appellant, present suit has been filed. He has also contended that he is not concerned with the plaintiff nor he has any business to do with him. It is also contended that he has never married and/or was having any relation with that woman viz. Manjulaben and the said facts are not proved and it is also subject to evidence.
3.1 It is also contended that the plaintiff's mother, Manjulaben Patel, had married with one Bhimjibhai Patel in the year 1982 and was residing at 107/1850, Sundarnagar, Nr.Soni ni chali, Odhav Road, Ahmedabad, and she was residing with her husband Bhimjibhai Patel and she had three children and the plaintiff is one of them. It is also contended that when the father of the plaintiff passed away, original plaintiff's mother was working in Perfect Engineering Corporation and respondent no.1 was a partner therein. It is also contended that the plaintiff's mother had filed affidavit wherein it was specifically stated that respondent no.1-original plaintiff's mother does not have any legal relation with the appellant and, therefore, the question of original plaintiff being son of the appellant does not arise. It is also contended that the Page 4 of 19 Downloaded on : Fri Oct 25 23:07:20 IST 2019 C/AO/71/2019 JUDGMENT plaintiff has submitted concocted documents.
3.2 It is also contended that right of privacy of the appellant will be prejudiced if he is compelled to undergo DNA test and nobody can be forcibly submitted to any such examination. It is also contended that the plaintiff has mentioned that his age is 33 years and, therefore, much before ten years he became adult and till date he has not filed any suit for paternity and, therefore also, suit filed by the plaintiff is just to extract money from the appellant. Therefore, it is required to be dismissed.
3.3 While relying upon various judgments, he has prayed to allow present appeal by quashing the impugned order passed below Exh.18 application by the Family Court in Family Suit No.1918 of 2016.
4. Respondent no.1-original plaintiff has filed affidavit-in- reply, wherein he has contended the same facts which have been averred by him in the suit and application at Exh.18 before the Family Court. The appellant has filed his affidavit-in- rejoinder reiterating the facts stated in the appeal memo.
5. Heard learned advocates for the parties and perused the material on record.
6. Mr.A.R.Thaker, learned advocate for the appellant has submitted the same facts, which are narrated in the memo of appeal and has submitted that the suit itself is time barred and the plaintiff's age is almost 33 years at the time of filing of the suit. He has also submitted that the plaintiff has got married at the age of 18 and from the age of becoming major, almost 15 Page 5 of 19 Downloaded on : Fri Oct 25 23:07:20 IST 2019 C/AO/71/2019 JUDGMENT years have passed and he has remained silent for all these years. He has also contended that all the documents, which are produced by the plaintiff in the suit are concocted and the appellant has never resided with the mother of the plaintiff. According to him, the appellant herein is not biological father of the plaintiff. He has also contended that the plaintiff has sought for the relief of undergoing DNA test in the suit also, which relief has been sought for in the application at Exh.18 and it cannot be granted at interim stage. Mr.Thaker further submitted that there is a report of the hand-writing expert to the effect that there is no signature of the petitioner in the application for ration card and the signature is forged one.
6.1 While referring to the birth certificate of Gitaben, he has submitted that name of earlier husband of Manjulaben has been mentioned as father in said Certificate. He has also stated that maintenance application filed by Manjulaben against the petitioner has been rejected by the concerned Court as the factum of marriage between Manjulaben and the appellant herein has not been proved. He has also contended that no wedding card has been produced in the matter and if the appellant has attended any ceremony, he might have attended it as a guest but that itself cannot suggest that the appellant is father of respondent no.1. He has also contended that DNA test cannot be forced on the appellant as it will be against the constitutional right of the appellant and if the appellant did not consent to undergo DNA test an adverse inference could be drawn but there cannot be any force for DNA test. He has also contended that the impugned order of the trial Court is non-reasoned one and no fishing and roving inquiry could be initiated. He has also contended that as the Page 6 of 19 Downloaded on : Fri Oct 25 23:07:20 IST 2019 C/AO/71/2019 JUDGMENT decisions are not dealt with by the learned trial Court and the submissions are also not dealt with by the trial Court, therefore, there is need of remand of case to the trial Court for deciding the application afresh. Regarding affidavit of one Manguben at page 154-155 of the paper book, he has contended that this a concocted document and it cannot be believed. He has prayed to allow present Appeal from Order and set aside the impugned order of the trial Court directing the appellant to undergo DNA test.
6.2 According to him, if the prayer to undergo DNA test at the interim stage is granted, it would affect the right of privacy of the appellant and one cannot be compelled to undergo such medical test. While relying on the following decisions, he has prayed to allow present appeal.
1. Bhabani Prasad Jena v. Convener Secretary, Orissa State (2010) 8 SCC 633.
2. Banarasi Dass v. Teeku Dutta and Another (2005) 4 SCC 449.
3. Goutam Kundu v. State of West Bengal and Another (1993) 3 SCC 418.
4. Badri Prasad Jhari v. Seeta Jharia II (2017) DMC 385 MP
5. Sunil Eknath Trambake v. Leelavati Sunil Trambake AIR 2006 Bom 140
6. Haribhai Chanabhai Vora v. Keshubhai Haribhai Vora AIR 2005 Guj 157
7. Davu Gopal Lunani v. Sri Siva Gopal Lunani and Others IAR 2014 AP 29
8. Mahendra v. Mamta 2019 (2) RLW 163 (Raj.) Page 7 of 19 Downloaded on : Fri Oct 25 23:07:20 IST 2019 C/AO/71/2019 JUDGMENT
9. Bhavnaben Vajubhai Odedara v. State of Gujarat and Others 2018 Cri.L.J. 2086
10. Deoraj v. State of Maharashtra AIR 2004 SC 1975
11. Mohd. Mehtab Khan and Others v.
Khushnuma Ibrahim Khan and Others (2013) 9 SCC 221.
12. Purshottam Vishandas Raheja and Another v.
Shrichand Vishandas Raheja (2011) 6 SCC 73.
7. Per contra, Mr.N.J.Shah, learned advocate appearing for respondent no.1-original plaintiff has supported the impugned order of the trial Court. He has contended that there is no straight jacket formula that, at interim stage, no mandatory order can be passed. He has submitted that, in a given case, the Court can grant interim relief which may be in the nature of passing a decree at interim stage. He has also contended that to decide the paternity, DNA test is the scientific method and, in this case, considering the basic facts before the Court and in the interest of justice, DNA test can be granted. Regarding limitation, he has submitted that recently when the plaintiff tried to register his name in Mevada Dotor Community, he was denied it and defendant no.1 has denied that he is biological father of the plaintiff and, thus, cause of action has arisen in the near past. According to him, when the cause of action has arisen in the near past, immediately the plaintiff has approached this Court. Therefore, there is no question of his remaining silent for almost 15 years. While referring to the documents produced in the matter, he has submitted that defendant no.1 has also purchased jewellery for Manjulaben, Page 8 of 19 Downloaded on : Fri Oct 25 23:07:20 IST 2019 C/AO/71/2019 JUDGMENT plaintiff's mother, and his name is also appearing in ration card and school certificate and other government documents. He has submitted that learned trial Court has taken into consideration all these aspects and passed the order which is legal and it does not suffer from any illegality.
7.1 Mr.N.J.Shah, learned advocate for the respondent has submitted that considering the age of the appellant, if DNA test is not undertaken then the material evidence would be destroyed. He has also contended that hand-writing opinion is regarding ration card, whereas other documentary evidence suggests that the appellant herein is the father of the plaintiff. While referring to the certificates produced with the paper book, he has submitted that there is ample evidence to suggest that the appellant herein is the father of original plaintiff. He has also contended that earlier the appellant has not denied the paternity of the plaintiff and, therefore, there was no cause of action for the plaintiff to institute the suit but recently the appellant herein has denied paternity of the plaintiff and, therefore, he had to institute a suit for his status. He has also contended that the issue of delay was not raised before the trial Court and it has been raised for the first time at this stage. He has contended that the trial Court has not committed any error in directing the appellant herein to undergo DNA. In view of all these, he has prayed to dismiss the appeal. He has relied upon the following decisions.
1. Narayan Dutt Tiwari v. Rohit Shekhar and Another (2012) 12 SCC 554.
2. Dipanwita Roy v. Ronobroto Roy AIR 2015 SC
418. Page 9 of 19 Downloaded on : Fri Oct 25 23:07:20 IST 2019
C/AO/71/2019 JUDGMENT
3. Goutam Kundu v. State of West Bengal 1993 (2) GLH 996.
7.2 Regarding decisions relied upon by learned advocate for the appellant, Mr.N.J.Shah, learned advocate for the respondent submitted that the facts of those cases are different from the facts of the present case and, therefore, those decisions are not applicable in the facts of this case.
8. In rejoinder, Mr.Thaker, learned advocate for the appellant has contended that the documents, which are produced by the plaintiff are concocted and the appellant has never resided with the mother of the plaintiff. He has also contended that the decisions relied upon by the other side are not applicable in the facts of the present case. It is also contended that the Family Court has not considered various decisions which were cited at bar and, without referring to those decisions, impugned order has been passed. He has, therefore, urged to remand the matter back for deciding application Exh.18 afresh by the Family Court.
9. Before dealing with the facts of the case, it would be appropriate to refer to various decisions and the observations made therein with a view to appreciate the controversy involved in the present case. The Apex Court in the case of Goutam Kundu v. West Bengal [(1993) 3 SCC 418] observed as under:-
"18. Blood grouping test is a useful test to determine the question of disputed paternity. It can be relied upon by courts as a circumstantial evidence which ultimately excludes a certain individual as a father of the child.Page 10 of 19 Downloaded on : Fri Oct 25 23:07:20 IST 2019
C/AO/71/2019 JUDGMENT However, it requires to be carefully noted no person can be compelled to give sample of blood for analysis against her will and no adverse inference can be drawn against her for this refusal.
21. The above is the dicta laid down by the various High Courts. In matters of this kind the court must have regard to Section 112 of the Evidence Act. This section is based on the well known maxim pater est quem nuptioe demonstrant (he is the father whom the marriage indicates). The presumption of legitimacy is this, that a child born of a married woman is deemed to be legitimate, it throws on the person who is interested in making out the illegitimacy, the whole burden of proving it. The law presumes both that a marriage ceremony is valid and that every person is legitimate. Marriage or affiliation (parentage) may be presumed, the law in general presuming against vice and immorality.
22. It is a rebuttable presumption of law that a child born during the lawful wedlock is legitimate, and that access occurred between the parents. This presumption can only be displaced by a strong preponderance of evidence, and not by a mere balance of probabilities.
.............
26. From the above discussion it emerges:-
(1) that courts in India cannot order blood test as a matter of course;
(2) wherever applications are made for such prayers in order to have roving inquiry, the prayer for blood test cannot be entertained.
(3) There must be a strong prima facie case in that the husband must establish non-access in order to dispel the presumption arising under section 112 of the Evidence Act.
(4) The Court must carefully examine as to what would be the consequence of ordering the blood test; whether it will have the effect of branding a child as a bastard and the mother as an unchaste woman.
(5) No one can be compelled to give sample of blood for analysis."Page 11 of 19 Downloaded on : Fri Oct 25 23:07:20 IST 2019
C/AO/71/2019 JUDGMENT 9.1 In the case of Bhabani Prasad Jena v. Convenor Secretary, Orissa State Commission for Women and Another [(2010) 8 SCC 633] the Apex Court has observed as under:-
"21. In a matter where paternity of a child is in issue before the court, the use of DNA is an extremely delicate and sensitive aspect. One view is that when modern science gives means of ascertaining the paternity of a child, there should not be any hesitation to use those means whenever the occasion requires. The other view is that the court must be reluctant in use of such scientific advances and tools which result in invasion of right to privacy of an individual and may not only be prejudicial to the rights of the parties but may have devastating effect on the child. Sometimes the result of such scientific test may bastardise an innocent child even though his mother and her spouse were living together during the time of conception.
22. In our view, when there is apparent conflict between the right to privacy of a person not to submit himself forcibly to medical examination and duty of the court to reach the truth, the court must exercise its discretion only after balancing the interests of the parties and on due consideration whether for a just decision in the matter, DNA is eminently needed. DNA in a matter relating to paternity of a child should not be directed by the court as a matter of course or in a routine manner, whenever such a request is made. The court has to consider diverse aspects including presumption under Section 112 of the Evidence Act; pros and cons of such order and the test of 'eminent need' whether it is not possible for the court to reach the truth without use of such test."
9.2 In the case of Banarasi Dass v. Teeku Dutta (Mrs) and Another [(2005) 4 SCC 449], the Apex Court observed as under:-
Page 12 of 19 Downloaded on : Fri Oct 25 23:07:20 IST 2019C/AO/71/2019 JUDGMENT "14. ...... The trial court erroneously held that the documents produced by the respondents were not sufficient or relevant for the purpose of adjudication and DNA test was conclusive. This is not a correct view. It is for the parties to place evidence in support of their respective claims and establish their stands. DNA test is not to be directed as a matter of routine and only in deserving cases such a direction can be given, as was noted in Goutam Kundu's case (supra). Present case does not fall to that category. High Court's judgment does not suffer from any infirmity. We, therefore, uphold it. It is made clear that we have not expressed any opinion on the merits of the case relating to succession application."
9.3 In the case of Parshottamdas Vishadas Raheja and Another v. Shrichand Vishandas Raheja (2011) 6 SCC 73 has observed as under:-
"29. The test to be applied to assess the correctness of the order of the learned Single Judge would be whether the order is so arbitrary, capricious or perverse that it should be interfered with at an interlocutory stage in an intra-court appeal."
9.4 In the case of Mohd.Mehtabkhan and Others v. Khushnuma Ibrahimkhan and Others [(2013) 9 SCC 221, the Apex Court has observed that grant of mandatory interim relief requires the highest degree of satisfaction of the Court; much higher than a case involving grant of prohibitory injunction. It is, indeed, a rare power, the governing principles whereof would hardly require a reiteration inasmuch as the same which had been evolved by this Court in Dorab Cawasji Warden v. Coomi Sorab Warden (1990) 2 SCC 117. In the said case in paragraphs 16 and 17, it is observed as under:-
"Paras 16 and 17 of the judgment in Dorab Cawasji Warden (supra), extracted below, may be usefully Page 13 of 19 Downloaded on : Fri Oct 25 23:07:20 IST 2019 C/AO/71/2019 JUDGMENT remembered in this regard:
"16. The relief of interlocutory mandatory injunctions are thus granted generally to preserve or restore the status quo of the last non-contested status which preceded the pending controversy until the final hearing when full relief may be granted or to compel the undoing of those acts that have been illegally done or the restoration of that which was wrongfully taken from the party complaining. But since the granting of such an injunction to a party who fails or would fail to establish his right at the trial may cause great injustice or irreparable harm to the party against whom it was granted or alternatively not granting of it to a party who succeeds or would succeed may equally cause great injustice or irreparable harm, courts have evolved certain guidelines. Generally stated these guidelines are:
(1) The plaintiff has a strong case for trial. That is, it shall be of a higher standard than a prima facie case that is normally required for a prohibitory injunction. (2) It is necessary to prevent irreparable or serious injury which normally cannot be compensated in terms of money.
(3) The balance of convenience is in favour of the one seeking such relief.
17. Being essentially an equitable relief the grant or refusal of an interlocutory mandatory injunction shall ultimately rest in the sound judicial discretion of the court to be exercised in the light of the facts and circumstances in each case. Though the above guidelines are neither exhaustive nor complete or absolute rules, and there may be exceptional circumstances needing action, applying them as prerequisite for the grant or refusal of such injunctions would be a sound exercise of a judicial discretion."
9.5 The other decisions relied on by learned advocate, MR.Thaker for the appellant are in the same line and, therefore, they are not discussed in detail.
10. In the case of Narayan Dutt Tiwari v. Rohit Shekhar and Another reported in (2012) 12 SCC 554, while Page 14 of 19 Downloaded on : Fri Oct 25 23:07:20 IST 2019 C/AO/71/2019 JUDGMENT upholding the decision of the Court below, the Apex Court has directed the petitioner therein to undergo DNA test. That the only disadvantage to the child which is put forward as an argument against the use of blood test, not for therapeutic purposes but to ascertain paternity, is that the child is exposed to risk that he may lose the protection of the presumption of legitimacy. It is further observed that interest of justice in the abstract are best served by ascertainment of the truth and there must be few cases, where the interests of children can be shown to be best served by the suppression of truth. Scientific evidence of blood groups has been available since the early part of this century and the progress of serology has been so rapid that, in many cases, certainty or near certainty can be reached in the ascertainment of paternity. It is also observed that paternity of any child is to be established by science and not by legal presumption or inference or by a long and acrimonious trial. It was further observed that injunction directing DNA testing falls in the category of an order in aid of disposal of the suit and deciding the rights of the parties to the suit i.e. the right asserted by the appellant to have such DNA testing done and the right asserted by respondent no.1 to not submit thereto. Once such right has been adjudicated by the suit court and the appeal there against had been dismissed and the application for stay having been rejected by the Apex Court, it was not open to suit Court to entertain the said question. It was further observed that drawing of adverse inference from refusal to comply with the direction for medical examination cannot be a substitute to enforceability of a direction for DNA testing. Legal fiction under Section 114 of the Evidence Act as adverse inference is not a reality, which the said provision requires. The Court has to accept the reality.
Page 15 of 19 Downloaded on : Fri Oct 25 23:07:20 IST 2019C/AO/71/2019 JUDGMENT The Court is not bound to or oblige to draw such adverse inference. A presumption is not in itself evidence but only makes a prima facie case for party in whose favour it exists. The presumption cannot displace adequate evidence. It is the rule of law in evidence that best available evidence should be brought before the Court to prove a fact for the points in issue and the Court ought to play an active role in the proceedings in finding the truth and administering the justice. That the truth is a guiding star and the quest in the judicial process and the voyage of trial. The trend world over of full disclosure by the parties and the deployment of powers to ensure that the scope of factual controversy is minimized was noticed. It was further observed that adverse inference from non-compliance cannot be a substitute to the enforceability of direction for DNA testing.
10.1 In the case of Dipanwita Roy v. Ronobroto Roy [AIR 2015 SC 418], the Apex Court has observed that it was permissible for a Court to direct holding of DNA examination, if it was imminently needed after balancing the interest of the parties. It was also observed that when there is a conflict between a conclusive proof envisaged under law and a proof based on scientific advancement accepted by the world community to be correct, the latter must prevail over the former. It is also observed therein that DNA testing is the most legitimate and scientifically proved means.
11. Now considering various decisions, as referred to above, and the factual aspects of the present case, it is an admitted fact that the plaintiff has instituted the suit for declaring defendant no.1 as biological and natural father and one of the Page 16 of 19 Downloaded on : Fri Oct 25 23:07:20 IST 2019 C/AO/71/2019 JUDGMENT prayer in the suit is to direct defendant no.1 to undergo DNA test. At the same time, he has also prayed the same relief at an interim stage, which relief has been granted by the trial Court. On perusal of the impugned order, it appears that the trial Court has taken into consideration the averments made as well as submissions made by both sides and the authorities cited by them. Of course, the trial Court has not dealt with each and every aspect in detail, however, it has been specifically held by the trial Court that prima facie it appears that name of defendant no.1 has been inserted as father of the plaintiff in government records and further in order to decide the controversy involved in the suit, it is necessary to direct defendant no.1 to undergo DNA test. Thus, there is observation of the trial Court that there is prima facie material on record for directing the DNA test. Now, it is an admitted fact that the appellant is more than 80 years old and if DNA test is not granted then if any untoward incident happens then the very purpose of filing of the suit will be frustrated. It is also revealed from the documentary evidence, which are placed in the paper book, that in a School progress report of the plaintiff, name of the father is mentioned as Amrutlal Mistry. Not only that but in the Caste Certificate also, name of the appellant has been shown as father of the plaintiff. Invitation card at page 156 also issued in the name of Ashwin Amrutlal Mistry. It is revealed from Birth Certificate dated 6.12.1976 in respect of a female child, father's name has been shown as Bhimjibhai and mother's name has been shown as Manjulaben Bhimjibhai. Now the fact that Bhimajibhai has died in the year 1979 has not been denied by the other side. The birth date of the present plaintiff has been alleged to be 23.5.1981. This fact has not been denied by the appellant herein. Thus, from Page 17 of 19 Downloaded on : Fri Oct 25 23:07:20 IST 2019 C/AO/71/2019 JUDGMENT various documents it prima facie appears that the appellant herein has been shown as father of the plaintiff. Of course, this fact has been denied by the appellant herein. However, considering the material on record, it prima facie appears that if the DNA test is not permitted then in view of the facts that the appellant is of the age of 80 years, the evidence may not be available in case of any untoward incident like death of the appellant happening during the pendency of the suit. Though the relief sought in this application is same as final relief in the suit, considering the factual aspect of the matter, even at the interim stage relief could be granted. However, at the same time, when the appellant herein is objecting and vehemently opposing the DNA test, considering the factual aspects of the matter, it is necessary to safeguard his interest also. For that purpose, necessary condition of depositing certain amount by the plaintiff is required to be imposed with a rider that if the DNA report does not prove defendant no.1 to be father of the plaintiff, then the amount may be paid to the defendant no.1- appellant herein as compensation and in case if the report comes positive, i.e. proving defendant no.1 to be father of the plaintiff, the amount may be refunded to the plaintiff- respondent. At the same time, report is required to be sent in a sealed cover to the trial Court and it should be opened by the Court only.
12. In view of above, present appeal is liable to be dismissed and the same is dismissed. However, the impugned order is required to be modified to the extent that the plaintiff shall deposit Rs.1 Lac before the trial Court, which amount will be liable to be paid to the defendant no.1-appellant herein, if the DNA report does not prove defendant no.1 to be father of the Page 18 of 19 Downloaded on : Fri Oct 25 23:07:20 IST 2019 C/AO/71/2019 JUDGMENT plaintiff, and in case if the report comes positive, i.e. proving defendant no.1 to be father of the plaintiff, the amount may be refunded to the plaintiff-respondent. The DNA test is to be carried out only after deposit of Rs.1 Lac by the plaintiff, as ordered by the trial Court. DNA report is to be submitted to the trial Court in a sealed cover.
13. While upholding the order passed by the trial Court, this Court considers it just and proper to record a caveat, giving the appellant liberty to comply with or disregard the order passed by the trial Court, requiring the holding of DNA test. In case he accepts the direction issued by the trial Court, the DNA test will determine conclusively the veracity of accusation levelled by the respondent against him. In case, the appellant declines to comply with the direction issued by the trial Court, the allegation would be determined by the concerned trial Court, by drawing a presumption of the nature contemplated in Section 114 of the Indian Evidence Act, especially in terms of illustration (h) thereof.
14. With these observations, present appeal is disposed of along with Civil Application. No order as to costs.
Sd/-
(A. P. THAKER, J) FURTHER ORDER
15. At this stage, Mr.Thaker, learned advocate for the appellant requests to stay the operation this order for some time. There being no substance in such request, the same is declined.
Sd/-
(A. P. THAKER, J) R.S. MALEK Page 19 of 19 Downloaded on : Fri Oct 25 23:07:20 IST 2019