HIGH COURT OF CHHATTI$GARH AT BILASPUR Sinqle Bench : Hon’ble Shri Dilip Raosaheb Deshmukh, J. Second Appeal No.1 41l20n8 : Bachthu @ Dayawant aged 23 years son of Dayadas, Caste Satnami, resident of Parsada, Tahsil Nawagarh, Distt. Durg (C.G.) Appellant vefSUS Respondents 1. Ku. Rukhmani, aged 4 years daughter of unknown, minor through next friend mother Smt. Bharti Bai wife of Baldeo Satnami. 2. Bharti Bai aged 28 years, wife of Baldeo Satnami, Occupation - Labourer. Both of them residents of Parsada, Tahsil Nawagarh, Dish. Durg (C.G.) Second Appeai Under Section 100 of the Code of Civil Procedure Present: Shri Kamal Pandey. counsei for the appellant. ORAL ORDER (Paesed on 28m of April, 2008) Heard on admission. 2. The appellant/plaintiff is aggrieved by the judgment and decree dated 18.01 .2008 passed in Civii Appeal No. 13-N2005 by the Additional District Judge, Bemetara, Distt. Burg affirming the judgment and decree dated 27.07.2005 passed in Civii $uit No. 5~Al2002 by the Additional CiVii Judge Class-l, Bemetara whereby the suit for declaration that the appellantiplaintiff wee not the father of reepondent No.1 was dismissed. 3. The only ground urged by the iearned couneei for the appellant in this appeal is that the lower appellate Court ought to have allowed the application under Order 41 Ruie 27 read with Section 151 of C.P.C. “27. Production of additionat evidence in Appenate Caurt.—-~(1) The parties to an appea! shau net be entmed to Appe”ate produce additional Cam, But evidense’ if--- Whether era! or documentary, in the (a) been has the Court refused admitted, from to or whose admit evidence decree the which appea! ought is preferred to have (c) produced the Appeiiate or any Court witness requires to be examined any dacument to enabie t0 it be to pronounce iudgment, or for any other substantiai cause, the Appeiiate Court may aiiow such evidence or document to be produced, or witness to be examined. (2) Wherever additionai evidence is allowed to be for produced its admiesion." by an Appeiiate Court. the Court shaii record the reason 5. The appeiiant/piaintiff was represented by counsei before the trial Court. it is not shown that despite due diiigence, the appeiiant/ptaintiff was prevented from making an appiication before the triai Court for permission to undertake the D.N.A. test. in this view of the matter, i am of the considered opinion that the tower appeiiate Court did not commit any error in rejecting the appiication under Order 41 Ruie 27 read with Section 151 of C.P.C. Both the Courts below have considered the fact that in a criminai prosecution for rape on respondent No.2 — Bharti Bai i.e. mother of respondent No.1, the appeiiant/piaintitf had taken the defence that sexuai intercourse was with the consent of the prosecutrix i.e. respondent No.2 and that on conceiving pregnancy he was faiseiy implicated for rape. evidence ‘ed by the plaintiff and Both tm Courts have al$o considered the recorded a f‘ 6. AppeHate Court was wholly juStified in rejecting the applicatio Rule 27 read with Section 151 o ‘aw is involved in this appea! peat having no merit is dismissed 7. Accordmgly, this ap admis$iovx stage. Sh that ie$pondent nding that the piaihtifi has hailed to estabii No.2 wee a woman of lax character. in this View of the matter, i of the considered opinion that the tower n‘Order 41 t C,P.C‘ and no substantiai question of for determination. at the 3d]- Dilip Raosaheb Deshmukh Judge