1 wp-9626-11 mmj IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.9626 of 2011 Sumayya Kaira Bairagdar & Ors. .. Petitioners Versus Raju @ Yusuf Bashik Ahmad Kulkarni & Ors. .. Respondents Mr. Venkatesh Shastry for the Petitioners Mr. Prashant Bhavake for the Respondent No.1 Mr. S.A.Mane for Respondent Nos.2 & 3 CORAM : R.M.SAVANT, J. DATE : 1st DECEMBER, 2011 ORAL JUDGMENT : 1 Rule. With the consent of the parties made returnable and heard forthwith. Mr. Bhavake waives service on behalf of Respondent No.1. Mr. S.A.Mane waives service on behalf of the Respondent Nos.2 & 3. At the outset, the Learned Counsel Mr. Shastry appearing for the Petitioners seeks deletion of the Respondent No.4. The Respondent No.4 is accordingly deleted at the risk of the Petitioners. 2 The above Petition takes exception to the Order dated 17­6­2011 passed by the Learned Joint Civil Judge, Senior Division, Kolhapur, by which Order, the Application Exhibit 72 in Special Civil Suit No.37 of 2009 filed by the Original Plaintiff for subjecting the Original Defendant Nos.2 to 6 and the Plaintiff to the DNA test came to be allowed. The 2 wp-9626-11 Plaintiff i.e. Respondent No.1 herein filed Special Civil Suit No.37 of 2009 for partition and for a declaration that the Sale Deed dated 18­9­2008 executed by the Defendants in favour of the Defendant No.7 i.e. Respondent No.4 herein is illegal. The Plaintiff is claiming the relief on the basis that he is the son of one Bashir Kulkarni who is the original owner of the properties and who the plaintiff claims was his father. 3 Since the relationship between the plaintiff and the said Bashir Kulkarni was denied by the Defendant Nos.1 to 6, the Plaintiff filed the instant application Exhibit 72 for subjecting himself and the Defendant Nos.2 to 6 who are the daughters of the said Bashir Kulkarni and his step sisters, to the DNA test. The said application came to be allowed by the impugned order dated 17­6­2011. The said order has been assailed in the present petition, primarily on the ground that DNA test cannot be ordered as a matter of course and that it is only if the evidence that would be adduced is insufficient to establish the relationship between the Plaintiff and the said Bashir Kulkarni, that the DNA test could be ordered. Reliance was sought to be placed on the Judgment of the Apex Court laying down the said preposition. However, the Learned Counsel for the Respondent No.1 herein i.e. the original Plaintiff draws my attention to the affidavits dated 23­9­2011 filed in the Trial Court in the said Suit, by the Defendant No.1 Jannat Shaikh Bashir Ahmed Kulkarni, Defendant No.2 Summaya Kaira Bairagdar 3 wp-9626-11 and the Defendant No.3 Najneen Naushad Ambekari. The said affidavits have been filed after the impugned order was passed. By the said Affidavits, the said Defendants have accepted the relationship between the Plaintiff and the said Bashir Kulkarni. Whereas the Jannat Shaikh Bashir Kulkarni has stated that the Plaintiff is her step son and is born out of the marriage between her husband Bashir Kulkarni and his first wife Noorbi i.e the Plaintiff’s mother and therefore, accepts that the Plaintiff as her step son. In so far as Defendant No.2 and Defendant No.3 are concerned, they have also accepted the fact that the Plaintiff is begotten from the first wife of their father Noorbi and the Plaintiff therefore is their step brother. 4 In my view, apart from the aforesaid fact of the filing of the affidavits, by the said three Defendants accepting the relationship, the DNA test could have only been ordered if the Trial Court comes to the conclusion that the evidence on record is insufficient to prove the relationship between the parties. In the instant case without the said course of action being followed, straightaway the DNA test has been ordered. The said cause of action is now required to be followed in the light of the affidavits being filed by the Defendants as aforesaid. 5 In the light of the above, the impugned order is required to be set aside and is accordingly set aside. In the event, the Trial Court comes to the conclusion that the evidence on record is in sufficient to prove the relationship, it would be open for it to direct the parties to subject 4 wp-9626-11 themselves to DNA test. 6 The Petition is accordingly allowed to the aforesaid extent. Rule is accordingly made absolute. (R.M.SAVANT, J.)