NINGAMMA Vs. CHIKKAIAH

JUDGEMENT

(1.) THIS civil revision petition arises important question touching jurisdiction of Court below and law whether the Court below in the context of the provisions of Article 21 of the Constitution of India and Ss. 4 and 112 of the Indian Evidence Act, could direct plaintiff-2 and plaintiff-1 i. e. revisioner petitioners to subject themselves to medical examination and undergo the blood group test, in exercise of powers under S. 151 of the Code of Civil Procedure and whether the powers under S. 151, CPC could at all be exercised in such a case where plaintiff-2 and plaintiff-1 had hotly resisted and opposed the prayer for such direction being made as mentioned in the application.

(2.) THE facts of the case in nut-shell are; That plaintiffs 1 and 2, who are revision petitioners 1 and 2 in this Court filed the suit for maintenance in the Court of the Munsiff at Mandya, against defendant-respondent-1. Defendant-1 has filed his written statement in the suit denying the plaint allegations that plaintiff-2 was the daughter of plainttiff-1 from defendant-1. In other words defendant-1 i. e. , respondent-1 denied his relationship with plaintiff-2 as father and daughter. Defendant-1 asserted that plaintiff-2 is not his daughter as plaintiff-1 had left defendant-1's house in the year 1968 and she was not living with defendant-1 as husband and wife and as there had been no cohabitation between plaintiff-1 and defendant-1 and on this basis defendant-1 denied his liability to maintain plaintiff-2. The trial Court framed the issue whether defendant-1 proves that the first plaintiff was not born to him and plaintiff-1 never had family life with him since 1968? Defendant-1 moved the application under S. 151, CPC viz. , I. As. 14 and 15 with the prayer to the effect that in the circumstances of the case and in view of the issue involved, this Court may direct plaintiffs 1 and 2 to subject themselves for medical examination of their blood group test in order to determine the paternity of plaintiff-2. This application was made after the closure of the evidence of both parties. This application made by defendant-1 had been hotly contested and opposed by the plaintiffs-revision petitioners herein. The trial Court held that, in view of S. 112 of the Indian Evidence Act, though it is true that legal presumption of paternity is in favour of the plaintiffs, but the same is not rebuttable presumption and in such circumstances the Court opined that when legal presumption is in favour of one party, the burden lies heavily on the opposite party to show that the facts of the case in hand are not in consonance with the said legal presumption. Therefore, an opportunity will have to be given to defendant-1 to rebut the legal presumption which is in favour of the plaintiffs. The trial Court as such observed in the circumstances deemed it just and proper to direct the District Surgeon, Mandya, to carry out the paternity test of plaintiff-2 by medically examining plaintiff-1, 2 and defendant-1. The trial Court directed the District Surgeon, Mandya, to carry out the paternity test of plaintiff-2 by medically examining plaintiffs 1 and 2 (revision petitioners) and defendant-respondent-1. It is further directed that plaintiffs 1 and 2 along with defendant-1 to appear before the District Surgeon, Mandya, for undergoing medical examination for the aforesaid purpose on the date mentioned in the order i. e. , 4-12-1996. It is further observed by the trial Court at the bottom of the order that it is also made clear if any one of the parties mentioned above fails to appear before the District Surgeon on the abovesaid date, adverse inference will be drawn as per law.

(3.) FEELING aggrieved from the order dated 21-11-1996 passed by the First Additional Munsiff, Mandya, plaintiffs 1 and 2 have filed this revision petition under S. 115 of the Code of Civil Procedure.