T N ERANAIKA Vs. RAGHU

JUDGEMENT

(1.) IN the light of the law laid down by the Supreme 'court in the case of GOUTAM KUNDU vs STATE OF WEST BENGAL, our order was pronounced in this reference matter dismissing the petition in c. R. P. No. 2021/1996 reserving our reason for its dismissal. Now we proceed to record our reason for the same. Reason

(2.) IN view of the two conflicting decisions of a Single Bench of this Court in REVAMMA vs SHANTHAPPA and GANGADHARAPPA vs BASAVARAJ the following question of law was raised by the learned Judge H. N. Tilhari in C. R. P, No. 2021/1996 for resolution of the point in controversy by a Division Bench: "whether the Court can compel a person to be a witness and for medical examination and blood group test keeping in view Article 21 (1) of the Constitution of India, and to settle the conflict arising from the two Single Judge's decisions of this Court in Revamma vs Shanthappa (Supra) and in Gangadharappa's case by deciding which of the above two Single Judges' decisions lays down correctly the law. " Accordingly, the matter was placed before us for decision on the above question.

(3.) THE undisputed facts of the case giving raise to the above question are that a partition suit in O. S. No. 306/1991 pending on the file of the trial Court was instituted by R-1 Raghu - a minor represented by his guardian mother, (hereinafter referred to as the plaintiff') against petitioner, R-2 and R-3, arraying them as defendant no. 2, 1 and 3, respectively, for partition and possession of his share in the suit property alleging that he is the son of petitioner/defendant-2 and that the suit property being the joint family property of the parties, he is entitled to his specified share therein. The plaintiff's claim was being contested by the petitioner/defendant denying, interalia, that plaintiff is his son. During pendency of the suit, LA. No. 4 under Order 26 Rule 10-A of the C. P. C. was filed by the petitioner before the Trial Court praying to subject the samples of the blood of the plaintiff and of the petitioner to scientific investigation and blood group test by an expert to be appointed as the Court commissioner and for his report, to enable this defendant to prove, his said defence in the suit. That application was resisted by the plaintiff on the ground that in law he cannot be compelled to subject himself to medical examination for the purpose of the test of. his blood group and that on merits as well no good purpose would be served by appointment of the Commissioner as prayed in the application.