H. Susheela vs G. Hanumanthappa

P.D. Waingankar, J.—This appeal is directed against an order dated 18.06.2013 on I.A. No. 6 in O.S. No. 7861/2010 on the file of the V Additional City Civil Judge at Bangalore, whereby I.A. No. 6 an application under Order 7 Rule 11(a) r/w Section 151 of CPC filed by the defendants came to be allowed and the plaint has been rejected.

The parties are referred to their respective ranks before the trial Court i.e., the appellant-Smt. H. Susheela as ''the plaintiff and the respondents as ''the defendants'' during the course of this judgment.

Plaintiff- H. Susheela claiming to be the daughter of defendant No. 1-G. Hanumanthappa from his second wife Smt. Saraswathamma, filed a suit for partition and separate possession of her 1/4th share in the suit schedule properties. The defendant No. 1 denied relationship as claimed by the plaintiff that she is the daughter of defendant No. 1-G. Hanumanthappa by his second wife Smt. Saraswathamma. In view of the denial of the relationship by defendant No. 1, the plaintiff filed an application for conducting DNA test. The application was opposed by the defendant No. 1. It came to be allowed by the Court below and a Commissioner was appointed for conducting the DNA test to find out whether the plaintiff is the biological daughter of defendant No. 1-G. Hanumanthappa. The blood samples of both plaintiff and defendant No. 1 were taken by the Doctor from Victoria Hospital in the chambers of Registrar City Civil Court, Bangalore as per the Court direction in the presence of advocate for the plaintiff. The blood samples were collected and submitted to the Laboratory at Hyderabad and the report regarding DNA test has been secured, which went against the plaintiff. Since the contention taken by the defendant No. 1 is vindicated by the report of DNA test, defendants filed an application under Order 7 Rule 11(a) r/w Section 151 of CPC at I.A. No. 6 for rejection of the plaint on the ground that it does not disclose the cause of action and that the plaintiff is not the biological daughter of defendant No. 1. The application was opposed by the plaintiff on the ground that she had filed objections to the report of the DNA test on the ground that blood samples were not taken properly in a hygienic conditions and therefore, report of the DNA test is liable to be set aside. Both the learned counsel for the plaintiff and the defendants were heard on. I.A. No. 6 and by order dated 18.06.201.3, I.A. No. 6 came to be allowed rejecting the plaint.

Aggrieved by the rejection of the plaint, this appeal is preferred by the plaintiff.

I have heard both the learned counsel for the appellant-plaintiff and respondents-defendants on admission. Perused the records.

Learned counsel for the appellant-plaintiff would submit that the rejection of the plaint only on the basis of the DNA test report is not proper and that the plaintiff ought to have been given an opportunity to establish her relationship with defendant No. 1 as his daughter by other evidence. It is also submitted that blood samples were not collected in hygienic condition by the local doctor at Victoria hospital and thereby, the report of the DNA test ought not to have been relied upon by the Court in rejecting the plaint. Learned counsel placed reliance on the Division Bench decision of this Court reported in Sanjay K. Shetty Vs. B. Narayana Shetty, in support of his argument and sought to set aside the order of rejecting the plaint and remand the matter to the Court below.

Per contra, learned counsel for respondents-defendants would contend that at the request of the plaintiff, the Court appointed a Commissioner, the blood samples were taken by the doctors at Victoria hospital as per the order of the Court and the samples were sent for DNA test at Hyderabad and when the report went against the plaintiff, she raised objections that the blood samples were not collected properly in hygienic condition. Learned counsel further contended that report of the DNA test is scientifically accurate and prevails over all other evidence if any and in that case, remanding the matter or to recollect the blood samples would serve no purpose, that there is no merit in the appeal filed by the appellant and as such, it is liable to be dismissed. Learned counsel placed reliance on the decision of the Supreme Court reported in Nandlal Wasudeo Badwaik Vs. Lata Nandlal Badwaik and Another, .

Upon hearing the submission made by the learned counsel appearing for the appellant and learned counsel appearing for the respondents and upon consideration of the material on record, the point that arises for my determination is as under:

"Whether the order passed by the Court below rejecting the plaint is sustainable in law?"

My finding is in the affirmative for the following reason.

Admittedly, the plaintiff-H. Susheela claiming to be the daughter of defendant No. 1-G. Hanumanthappa from his second wife Smt. Saraswathamma filed a suit for partition and separate possession of her 1/4th share in the suit schedule property. The defendant No. 1-G. Hanumanthappa denied the plaintiff as his daughter from his second wife Smt. Saraswathamma. Therefore, in order to establish that she is the daughter of defendant No. 1, plaintiff filed an application under Order 26 Rule 10(a) of CPC r/w Section 45 of the Indian Evidence Act for conducting DNA test in order to ascertain as to whether the plaintiff is the biological daughter of defendant No. 1 or not. It is borne out from the records that the said application filed by the plaintiff came to be allowed and the Centre for Cellular and Molecular Biology, DNA, Uppal Road, Hyderabad had been appointed as the Court Commissioner for conducting the DNA test by the Court below. Defendant No. 1 challenged the said order in Writ Petition before the High Court which came to be dismissed. After the dismissal of the Writ Petition, the Court below appointed a Medical Officer from the Government hospital having pathology department for taking blood samples of both the plaintiff and defendant No. 1. Accordingly, the Doctor from Victoria hospital obtained blood samples of both plaintiff and defendant No. 1 in the chambers of Registrar of City Civil Court on 27.07.2012 The blood samples were drawn on FTA card and forwarded to the Commissioner at Hyderabad by RPAD. The Commissioner received the samples on 30.07.2012 and after the test, Court received the report which went against the plaintiff holding that plaintiff is not the biological daughter of defendant No. 1. The plaintiff did file objection to the report. In the meanwhile, the defendants have filed an application at I.A. No. 6 under Order 7 Rule 11(a) r/w Section 151 of CPC for rejection of the plaint as it does not disclose the cause of action. The application was opposed by the plaintiff. It was heard on merits and by order dated 18.06.2013, the application came to be allowed based on the report of the DNA test and the plaint came to be rejected.

Admittedly, as soon as blood samples were collected the plaintiff did not raise any objections nor she raised objections for forwarding the blood samples collected to the Lab at Centre for Cellular and Molecular Biology, DNA, Uppal Road, Hyderabad. When the report was received and it went against the plaintiff, she is raising the objections that the blood samples were not collected properly in hygienic condition. If it is really so, the plaintiff ought to have taken objections at the time of collecting the blood samples or at the time of forwarding the blood samples either before the doctor from Victoria hospital who collected the blood samples or atleast before the Court. She did not do so for the reason best known to her. Moreover, at her request, the Commissioner was appointed and the blood samples were collected and therefore, there is no substance in the contention taken by the plaintiff that blood samples were not collected properly in hygienic conditions. Once the report of DNA test confirmed that the plaintiff is not biological daughter of defendant No. 1, she has no right to claim the partition and separate possession in the properties belonging to defendant No. 1 and rightly for the said reason, the Court rejected the plaint on the ground that the plaintiff has no cause of action to file the suit.

No doubt, learned counsel for the appellant-plaintiff has placed reliance on the Division Bench decision of this Court as stated supra, wherein it has been held as under:

"Civil Procedure Code, 1908, Order 26, Rule 10(2) - Indian Evidence Act, 1872, Sections 45, 47 and 73 - Negotiable Instruments Act, 1881, Section 4 - Promissory note - Dispute regarding execution of - Court appointing Commissioner who is handwriting expert and recording his report that signature of execution of promissory note is genuine-Omission to examine handwriting expert in spite of party''s objection to report - Report of handwriting expert admitted in evidence is merely piece of evidence which is not conclusive and no reliance can be placed on same without examination of expert - Decree passed on basis of such report whose author was not examined and without first deciding objection to report, cannot be sustained."

From reading the above decision, it is evident that the said decision was rendered in connection with the report of the handwriting expert which is merely a piece of evidence which is not conclusive and no reliance can be placed on the report without examination of the expert. But, the report of the DNA test cannot be equated with the report of the handwriting expert. Therefore, the decision cannot be made applicable to the facts of this case.

On the other hand, learned counsel appearing for the defendants has placed reliance on the three bench decision of the Supreme Court as stated supra. Head notes C, D and F reads as under:

"C. Evidence Act, 1872 - S. 112 - Legitimacy of child - DNA test report provides scientifically correct proof - Report of DNA test stating husband is not biological father of child, if already available, would rebut presumption of legitimacy of child under S. 112 and would prevail over such presumption - S. 112 provides for presumption of a fact, not for a legal fiction - Husband disputed paternity of child on ground of his not having access to wife during period when she could have begotten the child - But no finding rendered by courts below on question of husband''s access to wife during relevant period - DNA test conducted pursuant to court directions - Test report vindicated husband''s stand that he was not father of the child - Held, scientific proof provided by DNA test report acceptable - Presumption of legitimacy of child stands conclusively rebutted - Hence direction to appellant husband to pay maintenance for said child, set aside - Criminal Procedure Code, 1973, S. 125.

D. Evidence Act, 1872 - S. 45 - DNA test report - Genuine DNA test result is scientifically accurate - Criminal Trial - Identification - Identification By DNA Test.

F. Evidence Act, 1872 - S. 112 - Legitimacy of child - Paternity of child questioned by husband - Orders of court for DNA tests in absence of any finding regarding husband''s access to wife during relevant period - Issue of access not raised by wife until test results found to be adverse nor orders directing DNA tests opposed by her - Orders directing DNA tests thus attaining finality, held, not open to challenge by wife subsequently on ground that issue of access had not been considered - Taking note of appellant husband''s challenge to paternity of child and his prayer for DNA test before courts below, a coordinate Bench of Supreme Court hearing husband''s SLP, directed DNA test to be conducted by Regional FSL - Test report excluded husband from being biological father of child - Not being satisfied with report, wife prayed for retest - Considering serious consequences of such report, said Bench directed DNA test to be done again, by Central FSL - Test report again excluded husband from being biological father of child - Respondent wife did not oppose directions for DNA tests but only after receipt of adverse reports did she raise objection that husband having failed to establish that he had no access to her during period she could have begotten child, DNA tests ought not to have been ordered - Held, validity of orders passed by court which have attained finality, cannot be gone into at this stage - Hence, Court herein would proceed on assumption that valid directions for DNA tests given - In any case, even if said issue had not attained finality against the wife, DNA test if establishing that man concerned is not biological father of the child, shall amount to rebuttal of presumption under S. 112 (see Shortnote C) - Civil Procedure Code, 1908 - S. 11 Expln. IV - Constructive respondent judicata."

From reading the head notes C, D and F, it is abundantly clear that genuine DNA test result is scientifically accurate. In that case, the trial Court is justified in accepting the report of the DNA test and rejecting the plaint. After all, DNA test was conducted at the request of the plaintiff pursuant to the Court direction and the DNA report vindicated the stand of defendant No. 1 that he is not the father of the plaintiff. In that case, as rightly held by the trial Court, there is no cause of action for the plaintiff to file the suit against defendant No. 1 for partition and separate possession of the properties of defendant No. 1. There is no merit in the appeal filed by the appellant. Hence, I proceed to pass the following order.

The appeal is dismissed.