R.S.A. No. 2895 of 2003 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A. No. 2895 of 2003 (O&M) Date of decision: 23.03.2009 Kuljit Singh ....Appellant Versus Harkirat Singh ....Respondent CORAM: HON'BLE MR. JUSTICE VINOD K. SHARMA Present: - Mr. Harsh Aggarwal, Advocate, for the appellant. Mr. P.K. Gupta, Advocate, for the respondent. ***** VINOD K. SHARMA, J (ORAL) This regular second appeal is directed against the judgments and decree dated 10.1.2002 and 21.2.2003 passed by the learned Courts below vide which the suit for maintenance filed by the minor stands decreed. The learned Courts below on appreciation of evidence on record recorded a concurrent finding of fact that the plaintiff/respondent being son of the appellant/defendant was entitled to maintenance. The judgments and decree passed by the learned Courts below were challenged by the appellant primarily on the plea that the plaintiff R.S.A. No. 2895 of 2003 (O&M) -2- was not his son. On 26.9.2003, this Court passed the following order: - “Ld. counsel for the appellant after seeking instructions from the appellant has submitted that the appellant is prepared to deposit the necessary fee for the DNA test, to determine the parentage of the child namely Harkirat Singh respondent. He has submitted that as per the information derived from the internet, Rs.5,000/- for each blood sample/person is required as fees for the DNA test for establishment of parentage. He has submitted that he is prepared to deposit Rs.10,000/- (for himself and for the child namely Harkirat Singh) today itself and that he will deposit Rs.10,000/- as costs within two weeks from today. At this stage, ld. counsel for the appellant has submitted that Rs.10,000/- has since been deposited with the cashier of this Court. Let notice of motion to the respondent be issued for 5.12.03, for which date the records be also summoned. Meanwhile, execution of the decree under appeal shall remain stayed, till further orders.” In pursuance to the order passed by this Court, an opportunity was given to the defendant/appellant to get the DNA test conducted. This Court again on 20.7.2004 passed the following order: - “The appellant has filed the present appeal, wherein it has been prayed that the child Harkirat Singh has not been born out of his loins. Learned Counsel for the appellant states that the appellant is ready and willing to have a DNA test conducted on the respondent-Harkirat Singh and the amount has already been deposited with the Registry of the High Court. Shri. P.K. Gupta, learned counsel for the respondent states that the appellant has not deposited the entire R.S.A. No. 2895 of 2003 (O&M) -3- maintenance as awarded by the Courts below. To this, counsel for the appellant states that he shall deposit Rs.50,000/- towards maintenance of the respondent within a period of one month. In view of the above, the amount be paid to the respondent on or before 20.8.2004 by way of a demand draft. Thereafter, the respondent will seek an appointment for undergoing a DNA test at the Centre for DNA Finger Prinding & Diagnostics, Hyderabad. The test shall be got conducted within one month after the receipt of the interim maintenance of Rs.50,000/-. As the child is a minor, his mother, namely, Baltej Kaur shall make all efforts for getting an appointment with the aforementioned Institute. The amount of Rs.10,000/- deposited with the Registry shall be released to the respondent through his monther Baltej Kaur within a period of two weeks from today. The appellant shall make himself available for the DNA test after he is informed of the date by the respondent. The Director, Centre for DNA Finger Printing & Diagnostics, Hyderabad shall submit his report to the Court after conducting the test. To come up on 5.10.2004. Copy of the order be given dasti.” However, in pursuance to the order passed by this Court, the DNA test was not conducted. Finally, this Court on 15.1.2009 passed the following order: - “Vide order dated July 20, 2004, this Court had directed DNA test of respondent at the Centre for DNA Finger Printing & Diagnostics, Hyderabad. The learned counsel for the respondent states that in pursuance of the order passed by this Court, the respondent was taken to Centre for DNA Finger Printing R.S.A. No. 2895 of 2003 (O&M) -4- & Diagnostics, Hyderabad. However, the DNA test could not be conducted as the appellant was not available. The copy of letter received from Centre for DNA Finger Printing & Diagnostics, Hyderabad, reads as under: - 1) To establish paternity, we need the blood samples of the mother, disputed child and the alleged father pertaining to the above case. 2) The blood samples can be collected and sealed in the presence of Hon'ble Judicial authorities and sent to us in a thermos flask containing ice within 72 hours after collection. Any Medical Officer can collect and seal the blood samples in the presence of Hon'ble Civil Judge. Necessary blood collection meterial is being submitted herewith. The ecnlosed identification forms and forwarding note need to be sent duly filled-in along with an extra passport size photograph of each individual duly attested. 3) Alternatively, the blood samples can be collected at our Centre. For this purpose, the concerned persons should come to CDFD on any working day (Monday to Friday) between 10.00 am to 5.00 pm. They should bring two passport size photographs of each individual duly attested along with the orders from the Hon'ble Court. 4) An amount of Rs.5,400/- (Rupees five thousand and four hundred only) for each blood sample/persons has to be paid in the form of a crossed demand draft drawan in favour of “Director, CDFD” payable at Hyderabad, towards DNA testing charges which is inclusive of a service charge @ 8% as levied by Government of India. R.S.A. No. 2895 of 2003 (O&M) -5- The learned counsel for the parties agree that they are willing to get the test conducted on 16.2.2009. The parties through their counsel are directed to be present at the Centre for DNA Finger Printing & Diagnostics, Hyderabad, on 16.2.2009 at 10.00 am. In case, for any reason, test is not conducted on the said date, the parties shall stay for the next day and the appellant shall deposit a sum of Rs.10,000/- (Rupees ten thousand only) by way of demand draft in favour of the respondent for meeting the expenses for holding DNA test on or before 30.1.2009. The parties are directed to comply with the necessary formalities required for DNA test as referred to above. Adjourned to 23.3.2009. Copy of the order be given to the counsel for the parties under the signatures of the Court Secretary.” In pursuance to the orders passed by the Court, it is admitted case of the defendant/appellant that he did not report for getting the DNA test conducted, though the respondent was present, as ordered. The learned counsel for the appellant contends that it was due to unavoidable circumstanes that the appellant could not got. Be that as it may, inspite of availing number of opportunities, the defendant/appellant has failed to get the DNA test conducted. This was the only plea raised against the judgments and decree passed by the learned Courts below vide which a concurrent finding of fact was recorded that the plaintiff/respondent was the son of the appellant/defendant and, therefore, entitled to maintenance. Once the appellant has failed to get the DNA test conducted, there is no reason whatsoever made out to interfere with the concurrent finding of fact recorded by the learned Courts below. R.S.A. No. 2895 of 2003 (O&M) -6- The appeal raises no substantial question of law for consideration by this Court. No merit. Dismissed. (Vinod K. Sharma) March 23, 2009 Judge R.S.