SH SHUBAM Vs. PYASHU AND ORS

JUDGEMENT

(1.) Being aggrieved and dis-satisfied with order dated 2.7.2018, passed by the learned Civil Judge, Court No.2, Rohru, H.P., whereby an application having been filed by the petitioner-plaintiff (herein after referred to as "the plaintiff") under Order 26 Rule 10 (a) CPC, read with Sec. 45 of the Indian Evidence Act, seeking therein direction to defendants No. 1 to 3 and proforma defendants No. 12 and 13, to submit themselves for getting their blood samples drawn by the medical officer for conducting DNA test, came to be dismissed, plaintiff has approached this Court in the instant proceedings filed under Art. 227 of the Constitution of India, praying therein to set aside the impugned order referred herein above and to allow the application filed by him under Order 26 Rule 10 (a) CPC, read with Sec. 45 of the Indian Evidence Act.

(2.) Facts, as emerge from the record are that plaintiff filed a suit for declaration against the defendants with a prayer that the plaintiff and proforma defendants No. 12 and 13 are sons of Gian Singh (defendant No.3) and grand sons of Pyashu (defendant No.1). The plaintiff claimed that he is member of Hindu joint family alongwith proforma defendants No. 12 and 13 and are in joint ownership and possession alongwith principal defendant having vested right, title and interest by birth over the suit land being grandson of defendant No.1.

(3.) Aforesaid claim set-up by the plaintiff came to be resisted by way of written statement filed by defendant No.2, which was also adopted by defendant No.1. Aforesaid defendants refuted the claim setup by the plaintiff that he is grandson of defendant No.1. During the pendency of the suit referred herein above, when matter was fixed for evidence of plaintiff, plaintiff moved an application under Order 26 Rule 10 (a) CPC, read with Sec. 45 of the Indian Evidence Act, praying therein to issue direction to defendants No. 1 to 3 and proforma defendants No. 12 and 13 to give their blood samples to the medical officer for conducting DNA test so that factum with regard to the paternity of the plaintiff is ascertained. Aforesaid application (Annexure P-3), having been filed by the plaintiff was resisted by defendants No. 1 and 2, by way of filing reply, who in para 2 of their reply (Annexure P-4) stated that controversy at hand, has been already set to rest by the Honourable High Court in earlier suit having been filed by the defendant No.3 namely Gian Singh i.e. father of the petitioner, wherein defendant No.3 had categorically taken stand that defendant No.1 (Pyashu) was having illicit relations with his mother and sought declaration that he is son of Shri Pyashu, however, the suit filed by defendant No.3 was dismissed by the learned Sub-Judge, Rohru, whereafter, appeal having been filed by defendant No.1 was accepted but subsequently, this Court vide judgment dated 6.11.2000, allowed the case bearing RSA No. 204 of 1998, having been filed by the defendants herein, as a consequence of which, judgment rendered by the learned Sub-Judge, Rohru, was upheld.