- (1.) Heard learned Counsel for the Petitioner.
(2.) Factual matrix of the case giving rise to the dispute, are as under. The Plaintiff (Respondent No. 1 herein) filed suit seeking a decree to be declared the sole surviving legal heirs of her deceased husband Vijay Shanker Agarwal and entitled to all monetary benefits and to all assets left behind by the deceased. A decree of permanent injunction was also claimed to restrain the Defendants No. 1 and 2 (Respondents No. 3 and 4 herein) from disbursing the monetary benefits after the death of Vijay Shanker Agarwal or to give employment in his place either to Defendant No. 3 or to any other person. During the pendency of the proceedings, an amendment application was moved to implead the Plaintiff No. 2 in the array of parties on the ground that she was born out of wedlock of Respondent No. 1 and late Vijay Shanker Agarwal. The Respondent No. 5 herein also got impleaded herself on the allegation that she was the daughter out of wedlock between Petitioner-Defendant No. 3 and late Vijay Shanker Agarwal. The suit was filed by the Plaintiff-Respondent on the allegation that late Vijay Shanker Agarwal was initially married with Petitioner-Defendant No. 3 Smt. Rajni Agarwal but later on marriage was dissolved in proceedings of case No. 159 of 1994 vide order dated 21.5.1995 passed by Civil Judge (Senior Division), Budaun and thereafter on 2.10.1995 late Vijay Shanker Agarwal married the Plaintiff-Respondent No. 1 and were living as husband and wife. During the pendency of the suit proceedings, an application was filed by Defendant-Petitioner with a prayer that Plaintiff No. 2 Km. Rakhi Agarwal impleaded in the proceedings on that allegation that she was born out of wedlock of Plaintiff No. 1 and late Vijay Shanker Agarwal be subjected to D.N.A. test and the same be matched with D.N.A. sample of Defendant No. 5 by a recognized laboratory. Trial court dismissed the application. The Petitioner went up in revision which has also been dismissed. Aggrieved by the two orders, the present petition has been filed.
(3.) Both the courts below have rejected the application on the ground that Plaintiff No. 1 sought a declaration to be legally wedded wife of the deceased and that Plaintiff No. 2 (Respondent No. 2 herein) was born out of their wedlock and thus the only controversy requiring proof was whether the Plaintiff-Respondent No. 1 was legally wedded wife of deceased and Plaintiff No. 2 was born out of wedlock. If the Plaintiff fails to establish the foundation on which the suit has been filed it will fail and thus, there was no good reason or ground for comparison of D.N.A. of Plaintiff-Respondent No. 2 herein and Respondent No. 5 herein (both of whom were claiming daughters of late Vijay Shanker Agarwal).;