Bombay High CourtWP/3983/2016dispossed offdismiss for default

Shri Nilesh S/O Keshavrao Thombre v. Sou. Reeta Nilesh Thombre And Another

2016-07-25Hon'Ble Shri Justice Z.A. Haq3 pages

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

NAGPUR BENCH : NAGPUR WRIT PETITION NO.3983/2016 Shri Nilesh s/o Keshavrao Thombre ..VS..

Sou. Reeta Nilesh Thombre and another - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Office Notes, Office Memoranda of Coram, Court's or Judge's orders appearances, Court's orders of directions and Registrar's orders - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - CORAM : Z.A.HAQ, J.

DATED : 25.7.2016.

Heard Shri A.N. Ansari, Advocate for the petitioner - original defendant.

The plaintiffs (wife and minor son of defendant) have filed the civil suit praying for decree for declaration that the plaintiff No.1 is wife of defendant, the marriage having been solemnized on 10th January, 2007 and that the plaintiff No.2 is the son of defendant. In these proceedings, the plaintiffs filed an application (Exh. No.50) praying that the defendant be directed to give the samples and D.N.A. test be conducted so that the issue whether the defendant is biological father of plaintiff No.2 can be decided properly. The learned trial Judge has allowed the above application by the impugned order.

2 wp3983.16 The contention of the petitioner - defendant is that the plaintiffs had filed application with similar prayer in proceedings under Section 125 of the Criminal Procedure Code and that application was rejected. It is argued that the order passed by the learned Magistrate rejecting the similar application filed by the plaintiffs operates as res judicata. It is submitted that though this was pointed to the learned trial Judge, the submission made on behalf of the defendant is not considered.

The learned trial Judge has considered the relevant aspects in paragraph Nos.7 and 8 of the impugned order and has also considered the proposition laid down in the judgment given in the case of Nandlal Wasudeo Badwaik V/s. Lata Nandlal Badwaik & Anr. reported in 2015 ALL SCR

954. The conclusions of the learned trial Judge are proper and cannot be faulted with. I do not see any reason to interfere with the impugned order. The petition is dismissed. No costs.

JUDGE Tambaskar.

3 wp3983.16 CERTIFICATE original signed Judgment/Order".

Uploaded By : N.V. Tambaskar.

Uploaded On : 27.7.2016.

Personal Assistant.