JUDGMENT Ali Zaidi, J.
1. In this case, under 'The Guardians And Wards Act, 1890 (hereinafter called the 'Act'),the dispute was whether the application for custody of children lay at Saharanpur in U.P. or at Ludhiyana in Punjab? The husband-respondent who made an application being Misc. Civil Case No. 101 of 2003 under Section 25 of the aforesaid Act for the custody of the minor children resides in District Saharanpur and he filed the application for custody of children in Saharanpur Court. The Opp. Party- appellant (here) who resides in Ludhiyana, stated in her reply that the application will lie in Ludhiyana and not at Saharanpur because children are residing with hear at Ludhiyana.
2. The learned Ist Addl. District Judge , Saharanpur vide its order dated 4.12.2006 on basis of the averments, in the application upheld the contention of the husband that the jurisdiction lay in Court at Saharanpur and that is how this appeal by the appellant wife.
3. I have heard the learned Counsel for the appellant and the learned Counsel for the respondent.
4. The Rule about jurisdiction as contained in Section 9(1) of the 'Act' and which is relevant here, is as follows:
9(i) Court having jurisdiction to entertain application: (1) If the application is with respect to the guardianship of the person of the minor, it shall be made to the District Court having jurisdiction in the place where the minor ordinarily resides.
5. The question for determination , therefore, was that as to where the children whose custody was claimed ordinarily resides.
6. The learned District Judge, Saharanpur decided that Saharanpur Court has jurisdiction and while taking this view, he has stated that the averments of the plaint are the decisive factor to ascertain jurisdiction and that is why he decided the issue infavour of the applicant-respondent.
7. It is difficult to agree with the reasonings given by the learned Addl. District Judge, Saharanpur for the reason that the principle which the learned Ist Addl. District Judge, Saharanpur followed is aptly applicable in case of a plaint and not for an Application. Therefore, it is strange to find that in presence of specific provision how to determine jurisdiction without there being any affidavit or any document with regard to the fact as to where the children ordinarily resided, the matter was decided, assuming many things.
8. Before the court decides, where the children ordinarily resided, it was necessary that there should have been some evidence in the shape of affidavits or documents to be able to come to some conclusion. In this case, there was no evidence whatsoever and still the learned trial court decided the question of jurisdiction.
9. The case must, therefore, go back to the trial court so that an opportunity may be given to the parties to file evidence in the form of documents and affidavit so that the matter be properly decided.
10. The appeal, therefore, succeeds and is allowed and the case is remanded back to the learned Ist Addl. District Judge, Saharanpur for providing an opportunity to the parties to file evidence on the issue involved in the case and to decide the question of jurisdiction afresh in accordance with law.
11. Costs made easy.