Kalasaiah Vs Harish

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NC: 2025:KHC:7314 WP No. 299 of 2021

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 18^TH DAY OF FEBRUARY, 2025

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BEFORE

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THE HON'BLE MR JUSTICE R. NATARAJ WRIT PETITION NO. 299 OF 2021 (GM-CPC)

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BETWEEN:

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KALASAIAH S/O. LATE SRI. MALAIAH, AGED ABOUT 67 YEARS, R/O NEHARU NAGARA, OPP: MINI VIDHANA SOUDHA, BELURU TOWN, BELURU TALUK, HASSAN DISTRICT-573 115.

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…PETITIONER

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(BY SRI. SOMASHEKARA K.M., ADVOCATE)

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AND:

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HARISH S/O. KALASAIAH, AGED ABOUT 35 YEARS, (AS MENTIONED IN THE CAUSE TITLE)

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Digitally signed by MARKONAHALLI RAMU PRIYA Location: HIGH COURT KARNATAKA

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PRADEEP S/O. KALASAIAH, AGED ABOUT 32 YEARS, (AS MENTIONED IN THE CAUSE TITLE)

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BOTH ARE RESIDING AT NATTEKERE VILLAGE, KASABA HOBLI, BELURU TALUK, HASSAN DISTRICT-573 115.

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PARVATHAMMA W/O. YALLAIAH, AGED ABOUT 56 YEARS, R/AT SHIVAJYOTHI PANA BEEDHI, NEHARU NAGARA, BELURU TOWN, HASSAN DISTRICT-573 115.

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…RESPONDENTS

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NC: 2025:KHC:7314 WP No. 299 of 2021

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(BY SRI. VIJAYA KRISHNA BHAT M., ADVOCATE FOR RESPONDENT NOS.1 AND 2;

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VIDE ORDER DATED 25.01.2024, PETITION AGAINST RESPONDENT NO.3 IS DISMISSED)

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THIS WP IS FILED UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED ORDER DATED 15.12.2020 PASSED BY THE CIVIL JUDGE, BELURU ON I.A.NO.9, O.S.NO.301/2013 VIDE ANNEXURE-J, CONSEQUENTLY ALLOW THE APPLICATION FILED UNDER ORDER 26 RULE 10(A) OF THE CODE OF CIVIL PROCEDURE AND SECTIONS 112 AND 45 OF INDIAN EVIDENCE ACT DIRECTING THE PLAINTIFFS AND FIRST DEFENDANT TO UNDERGO DNA TEST.

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THIS PETITION, COMING ON FOR PRELIMINARY HEARING IN 'B' GROUP, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: CORAM: HON'BLE MR JUSTICE R. NATARAJ

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ORAL ORDER

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The Defendant No.1 in O.S No.301/2013 on the file of the Civil Judge (Jr. Dn.), Belur, (henceforth referred to as ‘the Trial Court’) is before this Court challenging an order dated 15.12.2020 by which an application (I.A No.9) filed by him under Order XXVI Rule 10A of the Code of Civil Procedure, 1908 read with Sections 112 and 45 of the Indian Evidence Act, 1872 was rejected.

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NC: 2025:KHC:7314 WP No. 299 of 2021

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The parties shall henceforth be referred to as they were arrayed before the Trial Court. The petitioner herein was the defendant No.1 while respondent Nos.1 and 2 herein were the plaintiff Nos.1 and 2 respectively and respondent No.3 herein was the defendant No.2 before the Trial Court.

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The suit in O.S. No.301/2013 was filed for partition and separate possession of the plaintiffs’ 1/3^rd share each in the suit schedule properties. The plaintiffs claimed that they were the children of defendant No.1 and that the suit properties were the joint family ancestral properties and that they too had a share therein. They claimed that 01 acre 07 guntas out of the suit item No.1, which totally measured 01 acre 30 guntas, was acquired by the State Government for Yagachi irrigation project and that the compensation awarded in LAC No.19/2013 was squandered by the defendant No.1 for his obnoxious habits. The plaintiffs claimed that their demands for partition and separate possession of the suit schedule properties was turned down by the defendant No.1 and therefore, they were advised to seek for partition.

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NC: 2025:KHC:7314 WP No. 299 of 2021

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The defendant No.1 contested the suit and denied

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that the plaintiffs were his children and also denied that they were entitled to any share in the suit schedule properties. After the evidence in the suit was concluded, the defendant No.1 filed an application under Order XXVI Rule 10A of the Code of Civil Procedure, 1908 read with Sections 112 and 45 of the Indian Evidence Act, 1872 to direct the plaintiffs to undergo a DNA examination. The said application was opposed by the plaintiffs, who contended that the defendant No.1 had admitted the relationship in the course of his cross-examination and therefore, there was no need for a DNA examination. The Trial Court after considering the contentions of the plaintiffs and the defendant No.1, rejected the application in terms of the impugned order.

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Being aggrieved by the same, the defendant No.1 is before this Court in this petition.

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The learned counsel for the defendant No.1 submits

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that the Trial Court had framed issues one of which was whether the defendant No.1 proves that the plaintiffs are not his children?. He, therefore, contends that during the course of

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NC: 2025:KHC:7314 WP No. 299 of 2021

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cross-examination of PW.1, a suggestion was put to him as to whether he had any objection to undergo a DNA examination and that PW.1 submitted that he had no objection for a DNA examination. He, therefore, contends that the only way to prove issue No.3 framed by the Trial Court is through DNA examination of the plaintiffs and the defendant No.1. In support of his contention, he relied upon the judgment of a coordinate Bench of this Court in W.P. No.112825/2019 (disposed off on 27.09.2024).

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Per contra, learned counsel for the plaintiffs contended that defendant No.1 was examined as DW.1 and in the course of his cross-examination, he deposed that he had six children including plaintiff No.1. He also contended that Ex.D5 marked by defendant No.1 was the marriage invitation card of his son namely, plaintiff No.2. He therefore, contends that the defendant No.1 consciously accepted plaintiffs as his children and therefore, there is no need for DNA examination. Besides this, he contends that the plaintiffs have produced substantial material to establish that defendant No.1 was their father and

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therefore, there is no need for scientific investigation. In support of his contention, he relied upon the judgment of the

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NC: 2025:KHC:7314 WP No. 299 of 2021

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Hon'ble Apex Court in the case of Aparna Ajinkya Firodia vs. Ajinkya Arun Firodia [(2024) 7 SCC 773] and contended that the plaintiffs cannot be compelled to undergo DNA examination as that would be violative of fundamental right guaranteed to them under Article 21 of the Constitution of India.

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I have considered the submissions of the learned counsel for defendant No.1 as well as the learned counsel for the plaintiffs.

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The defendant No.1 though denied that the plaintiffs were his children, admitted that plaintiff No.1 was his son. He also admitted that Ex.D5 was the marriage invitation card of his son namely, plaintiff No.2. The plaintiffs have also produced and marked SSLC marks card and other documents to establish that the defendant No.1 was their father. Therefore, there was sufficient evidence on record to establish that the plaintiffs were the children of defendant No.1. Hence, there was no need for DNA examination of the plaintiffs. This issue is no longer res integra in view of the judgment of the Hon'ble Apex Court in the case of Aparna Ajinkya Firodia ,

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NC: 2025:KHC:7314 WP No. 299 of 2021

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referred supra. In so far as issue framed by the Trial Court, as to whether the defendant No.1 proves that the plaintiffs were not his children, the defendant No.1 is bound to establish that the documents produced by the plaintiffs were either concocted or fabricated or that name found in the official documents were brought about by the plaintiff to suit their convenience. In addition, the defendant No.1 is bound to establish that the plaintiffs were not residents of the same village from the date of their birth and if possible, he may establish that the plaintiffs were children of some other person and not him. In that view of the matter, as rightly held by the Trial Court, there is no need for the plaintiffs to undergo DNA examination at the instance of defendant No.1.

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Hence, this writ petition lacks merit and is dismissed .

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Sd/(R. NATARAJ) JUDGE

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SMA- para Nos.1 to 6 PMR-para No.7 till the end

Kalasaiah v. Harish

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Kalasaiah v. Harish

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