Ramesh Chand v. Khem Chand

01. i0.20 ll as she was::;utTering from tub,~cccdosis. The inform~ition about rhe wife's death was not disclos~.:.~d to the respondent. Th~ custody of the minor child Ashvva!1i continued to b·.:: •.vith a matenJc.l grandf~tther 1-~-:o Na.157/:!0i 1 Page I ~Jj'4 2013:DHC:8019 '· • named Yad Ram. The petition of the respondent (father Khem Chand) was decided ex-parte in his favour by the Trial Court by observing that notice of his petition be issued to be served in Aligarh and Deputy Nazir, Civil Court, Aligarh had sent a report that son of Yad Ram who was respondent before trial Court had refused to accept the service on behalf of Yad Ram, eocsequently the Deputy Nazir had affixed a copy of the notice on the conspicuoi.ts part of the residence of Yad Ram. This was taken to be a valid service and since they did not appear in pursuance to the said service, they were proceeded ex-parte.

3. Yad Ram, the maternal grandfather of the minor child is reported to have died and presently the custody of the minor child is stated to be with Ramesh Chand (appellant herein), one of the maternal uncles (Mama) of the minor. Yad Ram during his life time has filed an application for setting aside ex-parte decree of handing over the custody to the respondent by urging that he was never served and the factum of the exparte order \Vas learnl by him on the first time on 1st July, 2010 to the effect that on 1i 11 August, 2009, an ex-parte deaee was passed. He states that he got the record inspected on 5th July, 2011 through his counsel and took appropriate steps t<>r filing the application tor setting aside the exparte decree along with an application under Section 5 of the Limitaticn Act f()r condonation of delay. The learned Judge although condoned the delay in tiling the application tor setting aside the ex··parte decree but the application under Order IX Rule 13 CPC for setting aside the ex-parte decree itself was dismissed on the ground that the appellant who is the successor in interest of Yad Ram(maternal grandfather) had failed to FAO No.4571201 I Page 2 44 appear despite service of summons by affixation. The refusal of the summons vvas also taken note of in the light of Order V Rule 17 and accordingly the application was rejected. The appellant herein feeling aggrieved by rejection of his application under Order IX Rule 13 has chosen to prefer the first appeal against the order.

4. I have heard the learned counsel for the parties and perused the record. Admittedly, the custody of the minor child was originally with the maternal grandfather (Yad Ram) and after his demise with one of his maternal uncle/mama (Ramesh Chand) for the last eight years. In such a contingency, the handing over of the custody of the minor child to the father in pursuance to the ex-parte decree would not only cause trauma to the minor child who has been living with his maternal uncle but would also practically uproot him.

5. ln my view it would not be conducive for the welfare of the child even on the merits of the case. I feel while considering an application under Order IX Rule 13, no doubt the learned appellate Court has rightly held that the appellants herein had been duly served, but after having put in an appearance the welfare of the child should have got priority over the service of the summons and adopting of a technical attitude. I feel the learned Trial Court has felt into grave error by adopting the parochial and pedantic approach in rejecting the application of the appellants. Once the appellants had put in their appearance the approach of the Court should have been to decide the question of custody of the child on merits rather than on technicalities more so when the delay in filing the application under Order IX Rule 13 was condoned. I am cognizant of the fact that FAO No.457/201/ PageJ 44 though especially the father of the child in a case where he has lost a mother will have predominant right with regard to the custody of the child but a balancing act has to be done in the facts of the case where admittedly the minor child has not seen his father nor lived with him for last eight years. These considerations accordingly weigh with the Court for setting aside the order _of the first appellate Court rejecting the application under Order IX Rule 13 CPC and remand the matter to the Trial Court with regard to the custody of the minor child. The trial Court shall endeavour to dispose of the petition itself as expeditiously as possible and preferably before 31st December, 2013.

6. Any expression of opinion may not be treated as an expression on the merits ofthe case.

JANUARY 21, 2013 gm FAO No.457120/l.K. SHALl, J ·) ~tN fr-'Jd~ lt"'f.a ~~'*' df..r£.<C- J-1 - f.. /.[3] v C f[1] J ~~~/I.J ( ~ Page 4 lJ{ 4