High Court · 2025

defendant No.l aggrieved by the order, dated -O.O9.2O24, in I.A.No.60 of 2024 in O.S.No.17 of 2Ol7 passed c1' the learned I Additional District Judge, Jogulamba Gadwal D: strict-

2. For the sake of convenience, th': parties are hereinafter referred to, as they are arrayed in the suit.

3. The brief facts of the case are tirat the plaintiff filed a suit in C).S.No. 17 of 2Ol7 on the file of learne'l III Additional District Judge at Gadwal, Jogulamba Gadwal ftistrict seeking partition and separate possession of % share in the suit schedule property against defendant Nos.l anc 2. Originaily' the suit schedule property belongs to grandfather of the plaintiff namelv Late China Thirupathi Reddy, who d ed long back, leaving behind three sons and two daughters as his legal heirs- After his demlse, the property was partitioned olally and in the said partition, the suit schedule Property fell 1o the share of father of plaintiff. The plaintiff is only daughtt:r to defendant No.1. Since, defendant No.1 addicted to bad ha:its and due to I I t t t I I 2 iit,J the disputes between the plaintiff and defendant No.1, defendant No. I without consent of the plaintiff, with an intention to fraud the plaintiff, sold the suit schedule property to defendant No.2 by misleading the facts. It is further stated that if the defendarrts are not restrained from selling the subject property, the plaintiff will be put to irreparable loss, injury and hardship. Thdrefore, the plaintiff liled a suit for partition and separate possession in respect of suit schedule property, entitling Yz share in suit schedule property by hxing the metes and that a Commissioner may be appointed for partition the suit schedule property into two equal shares and the plaintilf be delivered separate possession of Yz stra:.e in the suit schedule property and bounds etc.

4. It is stated that pending suit, the plaintiff filed I.A.No.60 of 2O24 in O.S.No.17 of 2Ol7 on the file of learned I Additional District and Sessions Judge, Jogulamba Gadwal District, under Section 45 of the Indian Evidence Act, 1872 (for short, the Act, 7a72) seeking a directron to defendant No.1 and the plaintiff to give blood samples before the Lab at Telangana I t State Forensic Science Laboratories, Red Hills, Hyderabad, for scientific examination for conducting DNA Profile and the *- 3 fL*J sample can be collected from Lab and after test, the report shall produce before the trial Court. The learned I Adc.itiona-l District Judge, Jogulamba Gadwal Distict, through inrpugned order 1O.O9.2O24 a-lLowed the said application. Challer ging the same, the present Civil Revision Petition is frled by the petitioner- defendant No. 1. 5, Le:rrned counsel for the petitioner-c.efendant No.l submitted that the petitioner did not give consent for taking blood for conducting DNA test and forcefully the .ab technicians collected the btood from him. The petitioner is aged about 80 years suffering from old age ailments. He also submitted that the petitioner is bedridden and not in a positir,n to travel for about 600 kilometers from Kurnool to Hyderebad for giving blood samples. The petitioner also frled writte n statement in the suit on C5.03.20 18 wherein he denied the relationship between himseif and respondent No.l and respondent No.l failed to explain the delay in filing I.A.No.6O of 2024. He also submitted that respondent No.1 has suppresst,d the material facts that petitioner herein has got married to one Vimalamma and begotten tu'o daughters and one son duriry, their wedlock. The said fact is clear as seen from Ex.A.20-ra.ion card. The I I I I I I t I I I i i 4 if,xJ plaintiff herself in the cross-examination conducted on O3.O2.2O2O at paragraph No.2 in the 3.d line stated that 'I do not know the year and month of marriage of my parents.' It is stated that the petitioner and her mother are residing separately for the last frve years. The plaintiff has admitted in her pleadings that she has not stated above statement, i.e., the place of her mother marriage and date of her marriage. The suit schedule properties along with other properties will be the self- acquired properties of late Thirupathi Reddy by virtue of Succession. As such, the petitioner being son of said Thirupathi Reddy, obtained the suit schedule properties by way of Succession and they cannot seek for partition, as the same are self-acquired properties of the petitioner and he further contended that the trial Court is likely to issue NBW against the petitioner, without even considering the fact that he is aged years 80 old and bedridden and hence, he prays to set aside the impugned order.

6. On the other hand, learned counsel for respondent No.1-plaintiff submitted that as petitioner denied the relationship of father and daughter since long back i.e., on

16.O9.2022 she filed the a-foresaid interlocutory application. He S llllEr' furttrer submitted that the petitioner has adrnitted certain aspects in his cross examination. He further submitted that all tJre disputes were among the petitioner, respon,lent No.l and P.W.3, Cha-nderakala. There is another suit also iled before t}te learned Senior Civil Judge, Gadwal with an interLtion to harass respondent No.1. It is further stated that the petitioner approached this Court by hling the present C.lt.P., and later came to Hyderabad for giving blood samples, whi,:h itself clearly shows that in order to avoid share to the plaintiff , the petitioner intentionally Frled the present Civil Revisio:r Petition by suppressing the material facts that too after I.A.l,lo.172 of 2024 in I.A.No.60 of 2024, which has become infructuous. It is further stated that Ex.A.20-ration card is not a ',alid document to establish the relationship. She filed Exs.A.!r4 and A.25 to show the authenticity that shE is daughter of thr petitioner and P.W.3 is own sister of petitioner. PW.3 also depcsed before the Court that the plaintiff is daughter of petitiorrer during the wedlock of first marriage. It is further subnritted that the petitioner is having ilticit intimacy u'ith one Virr ala and all the documents filed by the petitioner were created :br the purpose I I I i i i 6 IIiIJ of this case and hence, she prays to dismiss the Civil Revision \ Petition.

7. Heard Sri B. Venkate shwar Reddy, learned counsel for the petitioner and Ms.Poojari Srilekha, learned appearing for respondent No.l.

8. As seen from the record, the petitioner-defendant No.l could not give consent for blood samples for conducting DNA test and forcefully the lab technicians collected the same. The petitioner is aged about 80 years suffering from old age ailments, he is bedridden and not in a position to travel all around 600 kilometers from Kumool to Hyderabad to give blood samples. Further, in the written statement filed in the suit on

05.03.2018 he denied the relationship between himself and respondent No. l, who also failed to explain the delay in filing I.A.No.60 of 2024. He a.lso submitted that respondent No. I has suppressed the material facts that petitioner herein got married one Vimalamma and during their wedlock they were blessed with two daughters and one son. The said fact clearly establishes from Ex.A.20-Ration card. The suit scheduie properties along with other properties will be the self-acquired p.op.i[i" of late Thirupathi Reddy by virtue of Succession. As rJ 7 rf,r;, such, the petitioner being son of said Thirupathi Reddy, obtained the suit schedule properties by way of fiuccession and they cannot sought for partition, as the same are self-acquired properties of the petitioner herein.

9. In support of contentions of Iearned oounsel for the petitioner he a_lso placed reliance on the judgmer t of this Court in the case of Gajfela Veeraswamy v. Craliela )tagaraJur and also the judgment of the Honble supreme court in the case of Ashok Kumar v. Raj Gupta & othersz. In As,hok Kunar,s case, the Honble Supreme Court held that forcirrg the plaintiff therein againsr his will to undergo DNA test would impinge on his personal liberty and his right to privacy and a ccordingly set aside same, It is further stated that the plaintiff r:annot compel defendant No. 1 to undergo DNA test. On p:rusal of the Judgment of the Honble Supreme Court which is pertaining to the year 2001 in respect of Narayan Dutt Tiwari,r; case lsupraf and the subsequent judgment of the Honble Sup;.eme Court in Ashok Kumar,s case (supraf at paragraph Nos. 15, t6 ald 17 it was held as under "Having ansrvered rhese questions, addltional issue to be resolvecl is rvhether re[usal to undergo DNA amounts to ,other ' cap ro.zorg on m,n ' cDJ 2021 SC 745 8 crp_rlrs rm. evidence'or in other words, can an adverse infererrce be drawn in such situation. ln Sharda v. Dharmpal 2OO3 (4) SCC 493 a three judges bench in the opinion wdtten by Justice S.B.Sinha righfly observed in paragraph 79 that "if despite an order passed by the court, a person refuses to subnit himself to suc.h medical examination, a strong case for drawing an adverse inference" carl tle made out against the person within the ambit of Sectbn 114 of the Evidence Act. The plaintiff here has adducod his documentary evidence and is disinclined to produce further evidence. He is conscious of the adverse consequences of his refusal but is standing hrm in refusing ro undergo the DNA test. His suit eventually witl be decided on lhe nature arrd quality of t}le eviierrce adduced. The issue of drawing adverse inference rnay also arise based on the refusal- The Court is to weigh both side's evidence witl all attendant circumstances and rhen reach a verdict in the Suit and this is not t}le kind of case where a DNA test of the plaintill is without exception.

16. The respondenr cannot compel the pLaintiff to adduce further evidence in supporL oI *re defendants' cas€. In any case, it is Lhe burden on a litigating parry to prove his case adducing evidence in support of his plea ajrld the court should not compel the party to prove his case in teh manner, suggested by the contesting par6/,

17. The appellant {plaintif0 as noted ea!'lier, has brought on record the evidence in his support which in his aseessment adequatell, establishes his case. His suit will succeed or fall with Lhose evidence, subjecr o[ course to the evidence adduced by the other side. When the pLaintiff is unwilling to subject himself to th€ DNA tesr, forcing him to undergo one would impinge on his personal liberty and his right to privacy- Seen from this perspective, the impugned Judgmenr merits interference and is set aside. ln consequence thereof. the order passed by the leamed Tt-i6-l Court on 28-ll.2OI7 rs restored. The suit is ordered to proceed accordingly."

10. Further, the judgment of this Court in Gajiela Veeraswamy v. Gajjela Nagaraju3, wherein this Court relying on the Judgment of the Hon'ble Supreme Court in Ashok Kumar's case (supral and paragraph No.15, it was held thus: 3 2022 o supreme (Telan;;a) 139 I I I t. o 9 f,f,R ' "ln that view o[ the matter, I am of the crnsidered opinion that the learned trial Court lailed to n(,tice the sensitivities involved in the issue of ordering DNA !est. Ir appears tltat the order impugned is passed merely l)ased on emotions tl.an on reasons with an observation that \/hen the patemity of plaintill is denied, it raises serious oirjections with regard to his binh itself, which cannot be role-ated by anl/ person and it may also cause great Ioss to his )er.sonal life. But in the facts and circumstances of the :ase, as discussed above, such direction to the first deferdant to undergo DNA test aBainst his consent, would imping: on his personal liberty and his right to privacy_ Seen frtm this pelspective, in view of the principles laid by the Hon,ble Supreme Court in Ashok Kumar,s Case, rhe impugn,rd order warrants interference by this Court and it is liable t ) be set aside."

11. Having considered the entire material placed on record, it clearly shows that respondent No.1 herein already examined herself as p.W. I and also examined p.Ws.2 and 3 on her behalf. P.W.3 is said to be sister of defendant No.1. Respondent No. I also examined p.Ws.4 anri :J in support of her case to prove that she is the daughter of he petitioner. On behalf of respondents DWs.l to 3 were examtned and even the evidence was concluded. L2. When al application is filed b_y respondent No.l_ plaintiff seeking the relief under Section 45 c f the Indian Evidence Act, 7872, for collection of blood sa nples of the petitioner herein for the purpose of conducting DllA profile test 1() crP_rr in order to establish biological test, the petitioner herein \., resisted the same by way of filing counter inter alia contending that at belated stage, the petition is not maintainable, as the material relating to father and daughter relationship has already placed on record. He further contended tl.at the petitioner was suffering from ill-health, fever and as weather is not cooperating for journey, the petitioner and their family members were shifted from Undavally to Kurnool on health grounds. As he is also crossed the age of 81 years and not well and frequently used to visit the Doctor for health check up for undergoing treatment at various private hospitals.

13. Besides that considering the fact that law is well settled that in the decisions cited above respondent No. I has every liberty to prove and establish her case that she has a right over the property in question through other material evidence. L4. In vieu, of the contentions of the petitioner that though he is denying about the paternit5r and disputing tl.e sarne, the question r.l'hich arises for consideration before this Court is whether the rights of the parties involved and to protect the paternity disputed or denied by defendant No.1 -1 1 (r 11 xiRJ whether the respondent No.1 is entitled to underlo DNA against his wish.

15. The respondent/plaintiff relied upon the judgment of the Hon'ble Supreme Court in Tiwari's case lsupraf and the trial Court relied upon t.Ile said and allowed the application. In the present case, as trial has already been c<,mmenced and evidence of petitioner and respondents has etlready been completed. Therefore, respondent No.l-plaintiff is at liberty to adduce further material evidence if required as per law and without consent of the petitioner-defendant No.l he may not be subjected or forced to undergo for DNA Profile tr:st to establish the paternity of defendant No.l.

16. Considering the above circumstance s, I am of the opinion that the learned Judge ought to have :onsiclered the sensitivities involved in issue before ordering the DNA test. It is settled law and in view of the principles laic dou'n in the judgment of the Hon'ble Supreme Court in Ar;hok Kumar's case (supraf the direction given to the petiti,rn er-defendant No.1 to urrdergo DNA Prolile test n"ithout his < onsent, would impinge on his personal liberty and his right I o privacy. As 12 seen from any angle, the impugned order suffers from irregularities and therefore, it is liable to be set aside. L7. Accordingly, the Civil Re'r-ision Petition is allowed setting aside the order, dated 1O.O9.2024, in I.A.No.60 of 2024 in O.S.No. 17 of 2Ol7 passed by the I Additional District Judge, Jogulamba Gadwal. There shall be no order as to costs. Misiellaneous petitions pending, if any, pending shall stand closed. SD/-IUI.OSMAN ALI BAIG ASSISTANT REGISTRAR //TRUE COPY// To, TSECTI OFFICER 1 The lAdditional District And Sessrons Judge Jogulamba Gadwal District' At Gadwal.

2. One CC to SRl. B VENKATESHWAR REDDY Advocate [OPUC] 3. One CC to SMT. POOJARI SRILEKHA Advocate [OPUC]

4. Two CD CoPies TPK/PSL Vv HIGH COURT DATED:0410712025 i : l.{ L t //,, ', .:' I ! (,. E551 ;-;-:: :,-:=z? >r 'rl ORDER CRP.No.3815 ot 2024 CIVIL REVISION PETITION IS ALLOWED (J /-tQ\:/ Sb, I I I