Final Order 1

Order Details: Notice of Motion
Pdf Text: NM 1397-20 in S.C. Suit no.60 of 2017
1 Date :02.12.2020
IN THE BOMBAY CITY CIVIL COURT FOR GREATER MUMBAI
NOTICE OF MOTION NO. 1397 OF 2020
IN
S.C. SUIT NO. 60 OF 2017
(CNR MHCC01-004322-2020)
Mr. P.V. Mahesh Kumar .. Plaintiff
Versus
Mr. P.V. Raghavan .. Defendant
Appearances :-
Ld. Adv. Mr. Gopal Jetali for plaintiff.
Ld. Adv. Manish Bohra for defendant.
Coram : His Honour Judge
Shri. A.H.Laddhad
Judge
CR No. : 07
Date : 02.12.2020
ORDER
1. The plaintiff has filed instant Notice of Motion seeking
following reliefs :
a) That this Hon’ble Court to pass appropriate order that
pending the hearing and final disposal of the present suit,
a Court Commissioner may be appointed to engage the
service of an expert and obtain DNA report of the
defendant in respect of paternity of the Plaintiff on such
terms as this Hon’ble Court may deem fit and proper.
b) That interim and ad-interim reliefs in terms of prayer (a)
above.
-- 1 of 6 --
NM 1397-20 in S.C. Suit no.60 of 2017
2 Date :02.12.2020
c) That cost of this Notice of Motion be provided for.
d) That for such other and further reliefs as this Hon’ble
Court may deem fit and proper.
2. It is contended by the plaintiff that, he has filed suit for
declaration that, he is biological son of the defendant. During
pendency of the suit, he has filed Notice of Motion no. 146 of 2017
seeking direction of this Court to the parties for having necessary
DNA test for determining the paternity. The aforesaid Notice of
Motion came to be allowed by this Court on 28.08.2018. It is
further contended by the plaintiff that, till date the defendant did
not adhere to the aforesaid order. Therefore, he is constrained to
file present Notice of Motion seeking appointment of expert by
way of Court Commissioner to obtain the DNA Samples of both the
parties to give effect to the order dated 28.08.2018.
3. Per contra the Notice of Motion is opposed by the defendant
by filing its say. It has been contended by the defendant that, the
plaintiff filed present Notice of Motion on false ground. Hence,
the Notice of Motion needs to be dismissed with heavy cost.
4. Heard both the sides. Perused Notice of Motion as well as
order dated 28.08.2018. It is not in dispute that, my Predecessor
vide, its order dated 28.08.2018 passed in Notice of Motion No.
146 of 2017, directed both the parties to undergo the test for
determining the paternity within 2 months from passing of the
order. The aforesaid order was challenged by the defendant by
-- 2 of 6 --
NM 1397-20 in S.C. Suit no.60 of 2017
3 Date :02.12.2020
filing Appeal from Order (St.) No. 28844 of 2018 before Hon’ble
High Court. The Hon’ble High Court vide, its order dated
21.11.2018 stayed the effect and operation of impugned order
dated 28.08.2018. The aforesaid stay was continued till
10.04.2019 and the Hon’ble High Court vide, its order dated
02.05.2019 dismissed the said Appeal from Order and maintained
the order dated 28.08.2018, whereby, my Predecessor directed
both the parties to undergo the test for determining the paternity.
5. It is not not in dispute that, even after passing of final order
by Hon’ble High Court, the defendant did not come forward for
DNA test. It is also not in dispute that, the defendant is old aged,
having age of about 70 years. Thus, looking to the aforesaid
circumstances, I find substance in the Notice of Motion and thus, I
proceed to pass the following order :
ORDER
1. The Notice of Motion No. 1397 of 2020 is hereby allowed in
terms of prayer clause (a).
2. Dr. Amarsingh A. Rathod (Resident Doctor of City Civil
Court, Bombay) is hereby appointed as Court Commissioner to
obtain the DNA Sample Kit from Kalina Laboratory or any other
approved Government Laboratory and take the DNA samples of
both plaintiff and defendant to determine the paternity. After
taking the samples, he should send the same to the Kalina
Laboratory for DNA testing and report the compliance to this
Court.
-- 3 of 6 --
NM 1397-20 in S.C. Suit no.60 of 2017
4 Date :02.12.2020
3. The aforesaid order be forwarded to the Medical Officer, Dr.
Amarsingh A. Rathod. Both the parties are directed to appear
before Medical Officer, Dr. Amarsingh A. Rathod, who is sitting in
the Court premises and decide the schedule of the visit as per
availability and convenience of the parties as well as of the
Medical Officer, Dr. Amarsingh A. Rathod.
4. Both the parties to deposit the amount of Rs. 15,000/- in
total by way of cost of DNA samples, expenses of Court
Commissioner and incidental charges.
5. Laboratory to submit the report in seal condition to this
Court.
6. Plaintiff to bear cost of Notice of Motion.
7. Notice of Motion No. 1397 of 2020 is disposed of
accordingly.
(A.H.Laddhad)
Judge,
City Civil and Sessions Court,
Dated : 02.12.2020 Greater Bombay.
Dictated on : 02.12.2020
Typed on : 02.12.2020
Draft Submitted on : 03.12.2020
Checked on : 03.12.2020
Signed on : 03.12.2020
Uploaded on : 03.12.2020
-- 4 of 6 --
NM 1397-20 in S.C. Suit no.60 of 2017
5 Date :02.12.2020
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER.”
03/12/2020 at 3.00 p.m. (Ms. V.V.Sawant)
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (With Court room
no.)
Shri A.H.LADDHAD
(C.R. No.7)
Date of Pronouncement of
JUDGMENT/ ORDER
02/12/2020
JUDGMENT/ORDER signed by P.O.
on
03/12/2020
JUDGMENT/ORDER uploaded on 03/12/2020
-- 5 of 6 --
NM 1397-20 in S.C. Suit no.60 of 2017
6 Date :02.12.2020
-- 6 of 6 --