HON’BLE SRI JUSTICE C.V. RAMULU C.R.P.No.4076 of 2010 Date: 25-10-2010 Between: Noone Devi Priya being minor Rep. by her mother and next friend M. Pushpalata ……….. Petitioner and Noone Mallikarjun and others ………. Respondents HON’BLE SRI JUSTICE C.V. RAMULU C.R.P.No.4076 of 2010 ORDER: This Civil Revision Petition, under Article 227 of the Constitution of India, is directed against an order, dated 18-08-2010, made in I.A.No.1074 of 2010 in O.S.No.22 of 2001 on the file of the learned I Additional District Judge, Nellore, whereunder the application filed, under Section 151 of C.P.C. read with 45 of the Indian Evidence Act, praying the Court to direct first respondent to appear before the Medical Officer, DNA Finger Printing and diagnostics, C.C.M.P. Campus, Uppal Road, Hyderabad, along with the petitioner for the purpose of undergoing DNA Test to decide the paternity of the petitioner, was dismissed. 2. The petitioner/plaintiff filed suit in O.S.No.22 of 2001 for partition and separate possession of the suit schedule properties. Respondents are the defendants. It appears, after closure of the evidence on either side, present I.A.No.1074 of 2010, under Section 151 of C.P.C. read with 45 of the Indian Evidence Act, was filed stating that the first respondent/first defendant falsely contended that he did not marry PW-1 and the minor petitioner/plaintiff herein did not born to him. So, it became absolutely necessary to conduct DNA test for determining the paternity of the minor petitioner/plaintiff and for the said purpose, the first respondent/first defendant shall appear before the Medical Officer of the Centre for DNA Finger Printing and Diagnostics. 3. The respondents filed counter denying the allegations made by the minor petitioner/plaintiff stating that there is absolutely no necessity to conduct DNA test for determining the paternity of the minor petitioner/plaintiff and there is no necessity for the first respondent/first defendant to appear before the Medical Officer of the Centre for DNA Finger Prints and Diagnostics, C.C.M.P. Campus, Uppal Road, Hyderabad for the purpose of undergoing DNA Test along with the petitioner. In fact, the minor petitioner/plaintiff earlier filed I.A.No.1938 of 2002 for the very same purpose and the same was dismissed. Even though I.A.No.1938 of 2002 was filed in 2002, the petitioner did not get ready till it was disposed of on 18-06-2009. In the meanwhile, the evidence on plaintiff’s side was closed. The first respondent/first defendant categorically denied the marriage between himself and PW-1 from the beginning. Even then, the minor petitioner/plaintiff had dragged on the matter. There are no merits in the petition and the petition is filed only to harass the respondents/defendants. 4. After hearing both parties, the Court below recorded it’s finding as under: “13. How far the version of the petitioner can be accepted is a question. The petitioner filed I.A.No.1938/2002 in the year 2002. It was pending till 8.6.2009. On 8.6.2009, the plaintiff’s counsel made representation and on the basis of representation, the Court made the following order: “Heard both sides. The Advocate for the petitioner represented that the plaintiff’s side evidence was already over and there is no necessity of conducting any D.N.A. Test and is not seeking the relief under the petition. Hence, the petition is dismissed.” If the plaintiff’s counsel did not make such representation, there was no necessity for the Court to dismiss the petition on the ground that the petitioner’s counsel made such representation. So, the explanation now invented has no legs to stand. So, the Court due to communication gap or misconception should have passed that order cannot be accepted. If that is true, the petitioner need not wait from 8.6.2009 till 14.7.2010 to come up with this petition. So, the explanation given by the petitioner in paragraph no.6 is not convincing and not supported by any material. When a senior counsel makes a representation in the Court and if it was mentioned on the docket sheet by the Court, it has to be accepted and if that representation is not correct, the senior counsel would not keep quiet and he would bring to the notice of the Court either immediately or next day by filing a memo. So, the explanation is not convincing. 14. The learned counsel for the petitioner has submitted that res judicata is not applicable as contended by the respondent’s counsel. The earlier petition in I.A.No.1938/2002 was withdrawn as not pressed. So, it was not on merits. This Court is in complete agreement with that contention as the earlier petition was withdrawn as not pressed. So, the second petition is maintainable. 15. In this connection, the respondents’ counsel has argued that the petitioner knowing that she is not entitled to seek the relief in I.A.No.1938/2002 has withdrawn that petition. In view of the representation made at that time, the petitioner is estopped from coming with the present petition. The question of estoppel does not arise here. The petitioner filed petition earlier for the same relief. For the reasons best known, the petition was withdrawn. Again they come up with the present petition. As the earlier petition was not disposed of on merits, res judicata is not applicable and so, this petition is maintainable. 16. On considering the facts and circumstances and the legal position, this Court is of the considered view that the 1st respondent need not be directed to subject for D.N.A. test. Consequently, the petition is liable to be dismissed.” Aggrieved by the said order, the present Civil Revision Petition is filed. 5. Sri O. Manohar Reddy, learned counsel appearing for the petitioner, strenuously contended that in a case of this nature, unless and until the paternity of the petitioner is decided, even if tomorrow it is declared that she is illegitimate child, she may not be able to claim for maintenance etc. Though such an argument was advanced, there is no such issue framed by the lower Court to be tried and resolved. Therefore, I am of the opinion that the said question raised by the learned counsel does not arise in a case of this nature. The very suit was filed for partition and separate possession by the petitioner and the following issues were framed for trial: 1. Whether the mother of the plaintiff happened to be the legally wedded wife of the first defendant and as such the plaintiff happened to be the legitimate daughter of the first defendant and as such she got right to claim partition from the suit properties? 2. Whether the court fee paid correct? 3. Whether the plaintiff is entitled to partition and separate possession of 1/4th share in the plaint schedule property? 4. To what relief? 6. Admittedly, the suit is for partition of the ancestral property. The first respondent/first defendant had no self-acquired property. If the said issues are answered against the petitioner, she is not entitled for any share in the property since the properties in question are ancestral properties of the respondents/defendants. Only a legitimate child is entitled for partition of the ancestral properties. 7. Under these circumstances, conducting of DNA test against the first respondent/first defendant and the petitioner to find out the paternity does not arise in a suit of this nature. Therefore, I am of the opinion that the lower Court has not committed any error calling for interference of this Court under Article 227 of the Constitution of India. The Civil Revision Petition is devoid of merits and is liable to be dismissed. Accordingly, the Civil Revision Petition is dismissed. 8. However, it is made clear that this order will not have any bearing in any future litigation of claiming maintenance etc., by the petitioner against the first respondent/first defendant and others. No order as to costs. ____________ C.V. RAMULU, J Date: 25-10-2010 YCR