The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK CMP No. 1585 OF 2017 Shantilata Rout …. Petitioner Mr. S.S.K. Nayak, Advocate -versus- Surendra Kumar Rout and another …. Opp. Parties Mr. D.K. Patra, Advocate (For Opp. Party Nos.1 to 3 and 5) CORAM: JUSTICE K.R. MOHAPATRA Order No.
Decision
ORDER 02.01.2023 I.A. No.1816 of 2017 & CMP No. 1585 OF 2017 7. 1. This matter is taken up through hybrid mode. 2. Although this matter is listed for extension of interim order, but during course of hearing of the interim application, this Court feels that the merit of the case has been gone into. Hence, on consent of learned counsel for the parties, this CMP is taken up for final disposal. 3. The Petitioner in this CMP seeks to assail the order dated 21st November, 2017 (Annexure-7) passed by learned Civil Judge (Junior Division), Dhamnagar in C.S. No.353 of 2004(I), whereby an application filed by the Plaintiffs-Opposite Party Nos.1 to 5 to send the sample of DNA test of Plaintiffs Nos.1 and 2 with Defendant No.1 has been allowed. 4. Mr. Nayak, learned counsel for the Petitioner submits that the suit has been filed for partition, in which the Petitioner is Defendant No.1. Earlier an application for DNA test of the above named persons were filed, which was rejected. Assailing the same, the Plaintiffs moved this Court in CMP No.672 of 2016 Page 1 of 4 // 2 // before this Court, which was disposed of on 5th May, 2016 with an observation that after closure of the evidence, an application for DNA test may be filed, if necessary. Accordingly, after closure of the evidence, the Plaintiffs again filed an application for sending the sample of the aforesaid persons for DNA test. The said application was allowed on the ground that the Petitioner (Defendant No.1) in her cross-examination had categorically admitted that she has no objection for the DNA test and she is willing to undergo the test. It is his submission that although a stray statement has been made by the Defendant No.1 in the cross-examination, but the Petitioner had filed objection to the petition for DNA test objecting to such prayer and stating that since the Plaintiffs could not produce any material with regard to establish the relationship in spite of the statement of P.W.1 in his evidence that he can produce the document to establish the relationship between the Defendant No.1 and Jemamani, such an application will amount to patch up the lacuna in the case of the Plaintiffs. Hence, he prays for setting aside the impugned order under Annexure-7 and to dispose of the suit at an early date. 5. Mr. Patra, learned counsel for the Plaintiffs-Opposite Party Nos.1 to 3 and 5 objecting to the same contends that since the Defendant No.1 (Petitioner herein) has categorically admitted in her evidence that she has no objection for DNA test, learned trial Court has committed no error in allowing the application. He further submits that the DNA test will establish the relationship between the parties and it will facilitate the Court for complete adjudication of the lis between the parties. Hence, he prays for dismissal of the CMP. Page 2 of 4 // 3 // 6. Mr. Patra, learned counsel for the Opposite Party Nos.1 to 3 & 5 in support of his contention relied upon the ratio decided in the cases of Dalip Singh & Ors. –v- Ramesh & Others., reported in 2017 SCC Online Raj 2720, Marada Venkateswara Rao –v- Oleti Vara Lakshmi & another, reported in 2007 SCC Online AP 799 and Narayan Dutt Tiwari –v- Rohit Shekhar And Another, reported in (2012) 12 SCC 554. 7. Considering the rival contentions of the parties and on perusal of the record, it appears that P.W.1 during her cross- examination has categorically stated that she can file the documents to show that she and Jemamani are the daughters of Nidhi. But no such documents had, in fact, been filed in the suit. It further appears that after closure of the evidence, an application for DNA test was filed in which an objection by the present Petitioner was filed objecting to the DNA test. However, learned trial Court taking into consideration the stray statement of the present Petitioner in her cross-examination to the effect that she has no objection if the blood test is done to ascertain whether she and Plaintiff No.1 belongs to same ancestor, allowed the petition. The said stray statement cannot be construed as consent for DNA test. A DNA test should be done sparingly and in exceptional cases where the Court is of the considered opinion that no other material to find out the truth is available record. As held in the case of Ranjan Kumar Behera @ Naik –v- Domburudhar Behera and others, reported in 2017 (II) OLR 558, DNA in a matter relating to paternity of a child should not be directed by the Court as a matter of course or in a routine manner, whenever such a request is made. The Court has to consider diverse aspects including presumption under Section 112 of the Evidence Act, Page 3 of 4 // 4 // pros and cons of such order and the test of ‘eminent need’ whether it is not possible for the court to reach the truth without use of such test. In the instant case, there is no finding to the aforesaid aspect. Further P.W.1 in her cross-examination has categorically stated that she can produce document to show that she and Jemamani are the daughters of Nidhi. But, the Plaintiffs could not produce any such document. Thus, allowing an application for DNA test will certainly amounts to patch up the lacuna in the case of the Plaintiffs. Law is well settled that the Plaintiffs must succeed on the strength of its case. 8. In that view of the matter, this Court is of the considered opinion that learned trial Court has committed error in law in allowing the application for DNA test taking into consideration a stray statement made by Defendant No.1 (D.W.1) in her evidence. Accordingly, the impugned order under Annexure-7 is set aside. 9. Since the suit is of the year, 2004, learned trial Court shall do well to dispose of the suit expeditiously giving opportunity of hearing to the parties concerned. Urgent certified copy of this order be granted on proper application. ms (K.R. Mohapatra) Judge Page 4 of 4