P.A.SHIVAPPA Vs. K.S.ANANDA

JUDGEMENT

(1.) Defendant No.2 in O.S.No.281/2017 on the file of Civil Judge & JMFC, Bagepalli, has filed this writ petition aggrieved by the order dtd. 1/7/2022, by which an application filed under Order XXVI Rule 10(B) of the CPC was rejected.

(2.) The suit in O.S.No.281/2017 was filed for partition and separate possession of the plaintiff's share in the suit schedule property. The plaintiff claimed that he was the son of defendant No.2 and that he was in possession and cultivation of the suit properties which belonged to joint family. He claimed that his request for partition was turned down, which compelled him to file a suit for partition. Defendant No.2 filed a written statement disputing that he was the parent of the plaintiff and claimed that he did not know the plaintiff and that he had no bodily relationship with the mother of the plaintiff. After the evidence of PW-1 was concluded, defendant No.2 filed an application under Order XXVI Rule 10(B) of CPC to conduct DNA test to ascertain whether the defendant No.2 had fathered the plaintiff. The Trial Court, in terms of its order dtd. 1/7/2022, relied upon the judgment of the Hon'ble Apex Court in the case of DHARM DEO YADAV VS. STATE OF U.P., reported in 2014 (5) SCC 509, wherein it was held that applications for conducting DNA tests to ascertain the paternity should not be ordered casually and that wherever the parent denies paternity, he must establish a strong prima facie case of 'non access' in order to dispel the presumption arising under Sec. 112 of the Evidence Act.

(3.) Being aggrieved by the said order, the present petition is filed.