Raju Sahu vs Sundar Sahu

Heard.

The short point involved in this case is that the appellant filed a suit for declaration to declare that he is son of Shri Sundar Sahu and was born out of illicit relation with Respondent No. 2 namely Phooleshwar Bai. It is not in dispute that on 19.11.2019, the learned Family Court ordered for DNA test of Sundar Sahu, so as to find out whether declaration can be granted or not. Unfortunately, on 19.11.2019 Sundar Sahu committed suicide. Further, it is also not in dispute that on 03.12.2019 date was fixed before the Court to give the blood sample. Consequently, before the date Sundar Sahu since committed suicide, blood sample could not be collected.

Learned counsel for the appellant submits that consequent to death of Sundar Sahu, the learned family court on 20.12.2019 has abated the suit on the ground that Sundar Sahu since has died as such the cause of action do not survive. He further submits that the order passed by the learned Family court is completely illegal. As much as, even after the death of Sundar Sahu on 19.11.2019, the case could not have been abated within a short span of time i.e. 1 month on 20.12.2019. He submits that declaration of the legal character of the appellant would be inconsequential to the fact that Sundar Sahu is dead or not, as he could have led other evidence. He submits that, therefore, the case needs to be remanded back to the Court below so as to allow the appellant to lead the evidence on merits.

Learned counsel for the respondents vehemently opposes the argument and submits that the appellant should have filed the application to set aside the order of abatement before the Trial court and no appeal would lie directly before the High court.

We have heard learned counsel for the parties and perused the records.

Order dated 20.12.2019 reads as under :-

“प्रतिवादी का फौत होने के करने के कारण प्रकरण की कार्यवाही समाप्त की जाती है। प्रकरण का परिणाम दर्ज कर अभिलेखागार जमा किया जावे।“

Reading of the order would show that the learned Family court has disposed off the suit/ proceedings on the ground that the sole defendant Sundar Sahu is dead. Admittedly, Sundar Sahu died on 19.11.2019, therefore, even under Article 120 of Limitation Act, 1963, the period would be of 90 days to bring the legal heirs on record. In case of delay or abatement, the delay could have been condoned, if sufficient cause is shown and likewise abatement could have been set aside. Herein, the order dated 20.12.2019 is not because of the fact that the legal heirs were not brought on record but the reason is that the sole defendant from whom the lineal parenthood was claimed as son since died, therefore, the suit stands dismissed. This order could not stand for the reason that legal character of the appellant/ plaintiff could have been established by other sources of evidence other than the blood sample of deceased alone. Simply, because of the fact that Sundar Sahu is no more and blood sample could not be obtained for DNA test that cannot be sole ground of evidence alone. Consequently, the order on the face of it appears to be wrong and cannot be sustained. Accordingly, the order dated 20.12.2019 is set aside and the case is remanded back for adjudication afresh before the Family Court, Bemetra. The parties are directed to appear before the Family Court, Bemetra on 11.04.2022.

Accordingly, the appeal is disposed off.