Considering the impugned ex-parte order passed by the Ld. Addl. District Judge, Gandhinagar, on 2/4/2011 in Civil Misc. Application No. 134/2010, both, Mr. SA Khan, Ld. Advocate for the appellant and Mr. DS Bhalakia, Ld. Advocate for the respondent requested that the main appeal may be heard today. Accordingly, with the consent of both the learned advocates, the main appeal is heard today and is being disposed of by this judgment. 2 The instant appeal is filed challenging ex-parte impugned order dated 2/4/2011 passed by the Ld. Addl. District Judge, Gandhinagar, in Civil Misc. Application No. 134/2010, whereby the respondent no. 1 herein, who was original applicant before the concerned trial Court, was declared as lawful guardian of minors Dhumil and Dev.
3 Mr. Khan, Ld. Advocate for the appellant, at the outset, submitted that the said order came to be passed by the concerned trial Court without issuing at-least any notice to the appellant herein, who happens to be father of minors Dhumil and Dev. It is submitted that the respondent no.
1 – original applicant is father-in-law of the applicant and mother's father of minor Dhumil and Dev. Mr. Khan, therefore, submitted that the appeal may be allowed and the impugned ex-parte order may be set aside and the concerned trial Court may be directed to decide the main matter after hearing both the sides.
4 However, Mr. Bhalakia, Ld. Advocate for the respondent opposed this appeal and submitted that no interference is warranted in the impugned order passed by the trial Court though it is true that the trial Court did not issue any specific notice to the appellant – father of the minors, but public notice was issued and pursuant to said public notice, the appellant could have appeared before the trial Court and could have opposed the main matter. Therefore, it is submitted that the appeal may be dismissed.
5 I have taken into consideration the submissions advanced on behalf of both the sides, so also I have taken into consideration the impugned ex-parte order passed by the trial Court. Considering the impugned order passed by the trial Court, so also submissions advanced on behalf of both the sides, at the outset, this Court is of the opinion that the impugned order passed by the trial Court is ex-parte order. There is no dispute that the appellant happens to be father of minors Dhumil and Dev. The respondent no. 1 original applicant happens to be father of deceased Dipikaben, the wife of the appellant and mother of said minors. It further transpires that in the application filed by the respondent before the trial Court, the appellant was not arraigned as opponent though he is father of the minors.
6 In above view of the matter, this Court is of the opinion that the appeal deserves to be allowed and the ex-parte order dated 2/4/2011 is required to be set aside and the matter is required to be remanded to the trial Court with certain directions.
7 For the foregoing reasons, the appeal is partly allowed and the impugned order dated 2/4/2011 passed by the Ld. Addl. District Judge, Gandhinagar, in Civil Misc. Application No. 134/2010 is set aside and the said matter is ordered to be remanded to the trial Court to decide the said matter afresh on merits, after hearing both the sides, in accordance with law. Any interim application, if filed, shall also be decided by the trial Court after hearing both the sides. It is hereby made clear that in the instant judgment and order, no merits are examined and the trial Court shall decide the main matter in accordance with law. Both, Mr. Khan, Ld. Advocate for the appellant and Mr. Bhalakia, Ld. Advocate for the respondent submitted that both the parties shall appear before the trial Court in Civil Misc. Application No. 134/2010 on 26/11/2012.
Since the main appeal stands disposed of, civil application loses its survival value and also stands disposed of. DSP.
(J.C.UPADHYAYA, J.) * Pansala.