whether the judgment of the Appellate Court in setting aside the judgment of the Court below and holding that the defendant is not the son of the plaintiff, is legal and sustainable?


HONOURABLE SRI JUSTICE N.R.L.NAGESWARA RAO

SECOND APPEAL No.356 OF 2012

JUDGMENT:

          This Second Appeal is filed challenging the judgment in A.S. No.29 of 2005 on the file of the First Additional District Judge, Medak at Sangareddy, by virtue of which the judgment in O.S No.133 of 2003 on the file of the Junior Civil Judge, Zaheerabad was set aside.  The suit was filed for declaration that the defendant is not the son of the plaintiff and for a consequential injunction restraining him from interfering with the possession of the schedule properties. 

          2.  No representation was made by the defendant before the Court below and the Court below dismissed the suit, as there is no positive evidence about the relationship.  As against that, the Appellate Court has reversed the judgment of the Court below accepting the evidence of PW-1.  It appears that the defendant died and the Second Appeal is filed by the legal representatives of the defendant, questioning the correctness of the judgment passed by the appellate Court. 

3.  The substantial question of law is whether the judgment of the Appellate Court in setting aside the judgment of the Court below and holding that the defendant is not the son of the plaintiff, is legal and sustainable? 

4.  POINT: Evidently, the paternity of the defendant is in dispute and when such question is raised, there are serious consequences if a declaration is granted to that effect.  The lower Appellate Court has taken into consideration only the evidence of PW-1 and willingness to go for DNA test.  But, as the matter stands, service of notice on the defendant is disputed and the legal representatives have now come on record to challenge the judgment.  Therefore, it is a fit case where the ex parte decree passed by the Court below has to be set aside and an opportunity has to be given to the appellants / defendants to prove the relationship of the deceased defendant with the plaintiff. 

5.  Therefore, the Second Appeal is allowed and the matter is remanded to the Court below and the appellants / defendants are directed to file written statement within a period of three (3) months and thereafter, the Court below shall dispose of the case within a period of six (6) months by giving opportunity to both the parties to adduce evidence.  Each party has to bear their own costs.

 ______________________

N.R.L. NAGESWARA RAO, J

June 21, 2012.

KTL

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