Pollavarapu Venkateswarlu, Minor By Guardian And Mother Hanumamma v. Polavarapu Subbayya,, Madras High Court, Judgment, Law, casemine.com

Citation Codes

Equivalent Citations

citation codes

Case Number

C.R.P No. 1205 of 1950.

Attorney(S)

Mr. K. Krishnamurti for Petr.
Messrs. V. Suhramaniam and M. Ramakrishna for Respt.

Judges

Raghava Rao, J.

Acts

Civil Procedure Code or in the Indian Evidence Act

See more information ...

Smart Summary

Factual and Procedural Background

The application at the root of this civil revision petition was filed under Section 151 of the Civil Procedure Code. The underlying dispute in the original suit concerns the legitimacy of the plaintiff, which the defendant (the alleged father) was disputing; the substantive suit is for partition. The defendant applied under S.151 for a direction that the plaintiff and his mother (the plaintiff's next friend) should appear in person so that a medical expert could take blood samples.

The learned Judge below ordered that the plaintiff be first examined by the medical expert, that the expert should indicate whether it was safe to take blood from him, and directed the appearance of the expert, the plaintiff, the plaintiff's mother, and the first defendant on 5th August, 1950.

Following that order, the defendant served a notice on the plaintiff's pleader asking whether the client was prepared to give blood of the plaintiff and of the mother if the expert said a test existed to recognize paternity and there was no danger to the child, and required a memo giving those particulars. The plaintiff's pleader replied that the High Court had ordered a stay of all proceedings pursuant to the order directing appearance, and that the question could not arise at that stage.

In the revision proceedings, Mr. Krishnamurthi (in revision against the order of the Court made on the defendant's application) contended that there was no legal warrant for such an application under S.151 and that no law compels the parties to provide blood for the test sought by the defendant.

Legal Issues Presented

Whether a Court has power under Section 151 of the Civil Procedure Code to order parties to appear and submit blood samples to enable a medical test for determining paternity in civil proceedings.
Whether there exists any provision of law (in the Civil Procedure Code or the Indian Evidence Act) that compels parties to give blood for the kind of test sought by the defendant.

Arguments of the Parties

Mr. Krishnamurthi (in revision)

There is no legal warrant for an application under S.151 to compel the production of blood samples for the test sought.
No provision in law compels his clients to offer any blood for such a test.

Mr. Ramakrishna (for the respondent)

Argued that English Courts sometimes resort to blood-grouping tests when non-access or paternity is in issue.
Referred to authority in Taylor's Principles and Practice of Medical Jurisprudence (Vol. 2, p. 69) describing Wilson v. Wilson, where blood-group evidence was used and the Court held the husband was not the father.
Referred to a passage in Modi's Medical Jurisprudence and Toxicology (8th edn.) noting a criminal Court at Mercara in June 1941 used blood-grouping results in a paternity/maternity dispute.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Hukundchand Boid v. Kamala Nand Sing	Authority for the nature and scope of inherent powers which Section 151 is intended to give effect to (as expounded by Woodroffe, J.).	The court held that S.151 powers must be exercised ex debito justitiae (in the interest of justice) and cannot be used merely on the invocation of parties or by mere volition of Courts; this undercuts the warrant for compelling blood tests in the present case.
Wilson v. Wilson	Example (via Taylor's Medical Jurisprudence) where blood-group evidence was used to disprove paternity; the court in that reported example held the husband was not the father and granted a decree for nullity.	The court acknowledged this English example as an instance where blood-grouping was used, but did not accept that such instances justify compelling unwilling parties to submit to a blood test under the present law.
Criminal Court at Mercara (June, 1941)	Reference in Modi's Medical Jurisprudence to a criminal court employing blood-grouping results in a paternity/maternity dispute.	The court noted this cited instance but observed that such examples do not establish a legal power to force parties to give blood for tests in civil proceedings where the parties refuse.

Court's Reasoning and Analysis

The Court agreed with Mr. Krishnamurthi's principal contentions. It reasoned as follows:

Section 151 of the Civil Procedure Code is intended to give effect to the inherent powers of Courts, as explained in Hukundchand Boid v. Kamala Nand Sing. Those inherent powers are to be exercised ex debito justitiae (in the discharge of justice), not on mere invocation by parties or by the mere volition of Courts.
There is no procedural provision in the Civil Procedure Code nor in the Indian Evidence Act that provides for the type of blood-grouping test the defendant sought to have performed.
Although the respondent's counsel cited English practice and specific examples (including Wilson v. Wilson and a criminal court decision reported in Modi) where blood-grouping tests have been used to resolve questions of paternity, the Court was not satisfied that such instances—whether foreign or from criminal courts—create a power to force unwilling parties to submit blood for testing in the present civil context.
Because the parties (as represented by Mr. Krishnamurthi) stated their unwillingness to give blood for the test, the Court concluded that the lower Court had no power to make the order it had made directing appearance for blood sampling.

Holding and Implications

Holding: The order of the Court below directing appearance for examination and potential blood sampling is set aside and the revision petition is allowed.

Implications:

The direct effect is that the lower court's order authorizing steps toward blood testing is vacated; the revision petition succeeds.
The respondent is ordered to pay the costs of the petitioner in the High Court and in the Court below, as stated in the opinion.
No broader legal rule compelling parties to submit blood for such tests is recognized by this opinion; the Court declined to treat the cited foreign or criminal-court examples as creating a power to force unwilling parties to give blood under S.151 or existing procedural/evidence statutes. The opinion does not purport to lay down a new, broader precedent beyond these conclusions as applied to the facts of this case.

Reported judgment text signed "N.R.R."

Show full summary ...

Pollavarapu Venkateswarlu, Minor By Guardian And Mother Hanumamma v. Polavarapu Subbayya,

The application out of which this civil revision petition arises is one under S. 151, Civil Procedure Code. The controversy between the parties to the original suit in which the application was filed is as to the legitimacy of the plaintiff which the defendant, the alleged father, is disputing. The suit is one for partition.

The defendant applied under S. 151, Civil Procedure Code for a direction from the Court to the plaintiff and his mother, his next friend, to appear in person before the Court in order to enable a medical expert to take samples of their blood. The learned Judge below has ordered the application in these terms:

“After hearing both the parties, it appears to me that it is necessary that the plaintiff should be first examined by the medical expert and he should give his opinion to the Court whether it is safe to take some blood from him. For appearance of expert, plaintiff, his mother and the first defendant on 5th August, 1950,”

After this order the defendant served a notice on the pleader for the plaintiff in these terms:

“You are required to please state whether your client is prepared to give blood of her son that is, the plaintiff, and her own, if the expert says that there is test to recognise the patnernity of a disputed child and that there is no danger for the child if the blood is taken from the child. You are required by this Honourable Court to file a Memo also giving the above particulars.”

In answer to this notice the plaintiff's pleader replied as follows:

“The High Court has ordered stay of all proceedings in pursuance of the order of the Court directing the plaintiff and his next friend to be in Court for examination. This question therefore cannot arise at this stage.”

Mr. Krishnamurthi in revision against the order of the Court on the defendant's application aforesaid contends that there is no warrant in law for an application of this kind; he also says that there is no provision of law which compels his clients to offer any blood of theirs for the kind of test sought to be taken out by the defendant.

I am clear that in both these contentions the learned Counsel is correct. S. 151 Civil Procedure Code has been introduced into the Statute book to give effect to the inherent powers of Courts as expounded by Woodroffe, J. in Hukundchand Boid v. Kamala Nand Sing (1). Such powers can only be exercised ex debito justitiae and not on the mere invocation of parties or on the mere volition of Courts. There is no procedure either in the Civil Procedure Code or in the Indian Evidence Act which provides for a test of the kind sought to be taken by the defendant in the present case. It is said by Mr. Ramakrishna for the respondent before me that in England this sort of test is resorted to by Courts where the question of non-access in connection with an issue of legitimacy arises for consideration. My attention has been drawn by learned Counsel to page 69 of Taylor's Principles and Practice of Medical Jurisprudence, Volume 2, where it is stated thus:

“In Wilson v. Wilson evidence was given that the husband's group was OM, that the wife's was BM, and that the child's was ABN. The Court held that the husband was not the futher of the child, and granted a decree for nullity.”

It is also pointed out by learned Counsel that in the text books on Medical Jurisprudence and Texicology by Rai Bahadur Jaisingh P. Modi (8th edn.) at page 94 reference is made to a case decided by a criminal Court at Mercara in June, 1941, in which the paternity and maternity of the child being under dispute, the Court resorted to the results of the blood grouping test.

That may be. But I am not in any event satisfied that if the parties are unwilling to offer their blood for a test of this kind this Court can be forced to do so. Mr. Krishnamurthi says that his clients are not prepared to offer their blood for such a test.

In these circumstances there was no power in the Court below to make the order it did. The order is accordingly set aside. The revision petition succeeds and the respondent will pay the costs of the petitioner here and in the Court below.

N.R.R

Pollavarapu Venkateswarlu, Minor By Guardian And Mother Hanumamma v. Polavarapu Subbayya,

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Mr. Krishnamurthi (in revision)

Mr. Ramakrishna (for the respondent)

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

Pollavarapu Venkateswarlu, Minor By Guardian And Mother Hanumamma v. Polavarapu Subbayya,

Comments