Shailendra Kumar Govil v. Promila Govil — 1983 DIGILAW 509 (ALL)

JUDGMENT Deoki Nandan, J. - This is a first appeal from order on a petition under Section 7 of the Guardians and Wards Act. The order appealed from runs as follows :- "7-1-1983 case called Shri Gaur for applicant present. The O.P. is not present despite personal service. As such, the application 4/Al is allowed. Sd/- 14 A.P.A. 7-1-83 District and Sessions Judge, Bulandshahr. 2. The objection to this order is that it is based on no evidence and it does not give any reasons for which the father could be removed from guardianship of his minor children and the mother appointed their guardian in his place. 3. The petition bears no date. Even the verification clause does not contain the place or the date of its verification, but it appears to have been presented in the Court of the District Judge on 27th November 1981. The learned District Judge admitted the petition, ordered it to be registered, and directed issue of notice to the opposite party fixing 19th February, 1982. The learned District Judge did not apply his mind to the requirements of Section 11 of the Guardians and Wards Act, while directing issue of notice. Section 11 reads thus : "11 (1). The learned District Judge admitted the petition, ordered it to be registered, and directed issue of notice to the opposite party fixing 19th February, 1982. The learned District Judge did not apply his mind to the requirements of Section 11 of the Guardians and Wards Act, while directing issue of notice. Section 11 reads thus : "11 (1). If the Court is satisfied that there is ground for proceeding on the application, it shall fix a day for the hearing thereof, and cause notice of the application and of the date fixed for the hearing- (a) to be served in the manner directed in the Code of Civil Procedure on- (i) the parents of the minor if they are residing in any State to which this Act extends, (ii) the person, if any, named in the petition or letter as having the custody or possession of the person or property of the minor, (iii) the person proposed in the application or letter to be appointed or declared guardian, unless that person is himself the applicant, and (iv) any other person to whom, in the opinion of the Court, special notice of the application should be given ; and (b) to be posted on some conspicuous part of the Court-house, and of the residence of the minor, and otherwise published in such manner as the Court, subject to any rules made by the High Court under this Act, thinks fit." The point is that before issuing notice the learned District Judge did not notice that the petition was not signed and verified in the manner required by the Code of Civil Procedure inasmuch as neither the place nor the date of its verification was specified, and while issuing notice of the petition he did not order that a copy of the notice be posted on some conspicuous part of the Court-house, and of the residence of the minor, and otherwise published in such manner as the Court thought fit. 4. Be that as it may, notice fixing 19th February, 1982, was not duly served and fresh steps of service of notice upon the opposite-party and by affixation were ordered to be taken by 26th September, 1982. The order sheet records under the date 5th July, 1982, that steps for service of notice were taken and notice fixing 1st October 1982 was issued. The order sheet records under the date 5th July, 1982, that steps for service of notice were taken and notice fixing 1st October 1982 was issued. That notice came back unserved after affixation because the opposite-party to the petition under Section 7, that is, the appellant in this Court, was not found at is residence by the process server. On 8th September, 1982 an application was made on behalf of the petitioner in the Court below, who is respondent in this Court, for service of the notice of the petition on the opposite-party appellant immediately as he was sitting in the Court of the Additional Civil Judge. immediate notice was taken out, but it appears to lave been tendered to the opposite-party appellant not that day but on 21st September, 1982, and the endorsement of refusal on the back of it reads as under : "Mai summon lene se isllye inkar karta Kynokihun iske sash koi kagaj kis babat yeh summon hai nahi hai. Yeh summon mujhe aaj Atrikiya Civil Judge' me pesh kia gaya hai." Shailendra Kumar Govil 21-9-1982. This was deemed to be sufficient personal service by the learned District Judge and the order under appeal was passed on 17th January, 1983. It may be noticed here that the learned District Judge was on leave on Ist October, 1982 and that is why the case was not taken up on that day and 7th January, 1983 was fixed for hearing. 5. Section 13 of the Guardians and Wards Act says that : "On the day fixed for the hearing of the application or as soon afterwards as may be, the Court shall hear such evidence as may be adduced in support of or in opposition to the application." Section 17 of the Act lays down "17(1) In appointing or declaring the guardian of a minor, the Court shall, subject to the provisions of this section, be guided by what, consistently with the law to which the minor is subject, appears in the circumstances to be for the welfare of the minor. (2) In considering what will be for the welfare of the minor, the Court shall have regard to the age, sex and religion of the minor, the character and capacity of the proposed guardian and his nearness of kin to the minor, the wishes, if any, of a deceased parent, and any existing or previous relations of the proposed guardian with the minor or his property. (3) If the minor is old enough to form an intelligent preference, the Court may consider that preference. (4) The Court shall not appoint or declare any person to be a guardian against his will." Section 19 further provides that: "Nothing in this Chapter shall authorise the Court to appoint or declare a guardian of the property of a minor whose property is under the superintendence of a Court of Wards, or to appoint or declare a guardian of the person- (a) ................ (b) of a minor whose father is living and is not in the opinion of the Court, unfit to be guardian of the person, of the minor, or (c) .................... Chapter 11 of the Guardians and Wards Act contains specific provisions for appointment and declaration of guardians. The form of the petition is prescribed. The procedure of admission of the petition is prescribed and the necessity of hearing of evidence before making an order is also prescribed by Section 13. Section 17 prescribes the matters to be considered by the Court in appointing a guardian and Section 19 prescribes the circumstances in which a guardian is not to be appointed by the Court. Indeed it appears that the Guardians and Wards Act contains the substantial part of the procedure. There is a reference to the Code of Civil Procedure in respect of certain matters, for instance the signing and verification of a petition in the manner prescribed by the Code of Civil Procedure ; for the signing and verification of a plaint ; and the service of the notice in the manner directed in the Code of Civil Procedure. The District Court being a civil Court and the proceedings for appointment or declaration of a guardian being a civil proceeding the Code of Civil Procedure is also attracted of its own force to the proceedings under Act. The District Court being a civil Court and the proceedings for appointment or declaration of a guardian being a civil proceeding the Code of Civil Procedure is also attracted of its own force to the proceedings under Act. Of course, in respect of the matters for which specific provision is made by the Guardians and Wards Act, that prevails over the provisions contained in the Code of Civil Procedure. The procedure for the trial of a suit could mutatis mutandis be applied to the trial of petition for appointment of a guardian made under Section 7 of the Guardians and Wards Act, with the aid of Section 141 of the Code of Civil Procedure . The fact, however, remains that an order of the kind that was passed by the learned District Judge in the present case could not have been passed even if he were trying a suit in accordance with the procedure prescribed by the Code of Civil Procedure inasmuch as there was no evidence in support of it. Mr. R.P. Goel invited my attention in this context to the provisions of Rule 10 of Order 8 of the Code of Civil Procedure, which provides that : "Where any party from whom a written statement is required under Rule 1 or Rule 9 fails to present the same within the time permitted or fixed by the Court, as the case may be, the Court shall pronounce judgment against him, or make such order in relation to the suit as it thinks fit, and on the pronouncement of such judgment a decree shall be drawn up." Rule 9 referred to above is not relevant here ; Rule 1, however, provides that : (1) The defendant shall, at or before the first hearing or within such time as the Court may permit, present a written statement of his defence." In the present case the notice which was served on the opposite party appellant by the District Court was not on the form of summons for disposal of a suit form No. 1 of form No. 2 of Appendix B, nor was it accompanied by a copy of the petition, assuming that the equivalent to the plaint, which ought to accompany a summon under Rule 2 of Order 5 of the Code of Civil Procedure. Form No. 5 of Appendix H, to show cause which is used in Miscellaneous cases. Form No. 5 of Appendix H, to show cause which is used in Miscellaneous cases. Apart from the mere matter of form, a copy of the petition not having been sent to the opposite party appellant along with the notice, and on his refusal to take the notice on that ground, it could not be said that the opposite party appellant had any "notice of the application" as distinct from "notice of date fixed for hearing" under Section 11 (1) of the Guardians and Wards Act, had any reasonable opportunity of filing a written statement or reply to the petition under Section 7 of the Guardians and Wards Act : and that being so Rule 10 of the Order 8 of the Code of Civil Procedure could not be invoked in this case even by applying the procedure prescribed for suits to the trial of the petition under the Guardians and Wards Act. 6. The main difficulty, however, is that there being no evidence in support of the petition, and even the petition being not properly -verified in accordance with the provisions of the Code of Civil Procedure, there was nothing before the learned District Judge on which he could Act. He did not give any reasons for the order except reciting the fact that the opposite-party appellant had not appeared inspite of personal service of notice. The learned District Judge never applied his mind to the questions to which he was bound to apply his mind, under Section 17 of the Guardians and Wards Act. Further the learned District Judge has not given any reasons why the father of the minors, who is the opposite party appellant, is unfit to be a guardian of their person. I might add that because of the exercise provision made by Section 13 of the Guardians and Wards Act, the Court was required to hear such evidence as was adduced before it in support or in opposition to the petition. It follows that if no evidence was adduced in support of the petition, it could not have made any order allowing the petition. Section 13 of the Guardians and Wards Act postulates that the District Judge must hear evidence before passing orders on a petition under Section 7 of the Guardians and Wards Act. 7. It follows that if no evidence was adduced in support of the petition, it could not have made any order allowing the petition. Section 13 of the Guardians and Wards Act postulates that the District Judge must hear evidence before passing orders on a petition under Section 7 of the Guardians and Wards Act. 7. The result is that this appeal must be allowed and the matter sent back to the Court of the District Judge for hearing of the petition under Section 7 of the Guardians and Wards Act in accordance with law. There are, however, certain matters in which it is necessary to make certain observations. If the Code of Civil Procedure applies to these matters, and I think it does apply, there is a duty cast, under Rule 3 of Order 32-A of the Code of Civil Procedure, on the Court to make an endeavour where it is possible to do so consistent with the nature and circumstances of the case, to assist the parties in arriving at a settlement in respect of the subject matter of the case. There is the further duty cast on the Court, by Rule 5 Order 32-A" to enquire so far it reasonably can into the facts alleged by the plaintiff and into any facts alleged by the defendant". To put it particularly, a Court has to act as a Court of conscience in these matters. The Court cannot act mechanically. I accordingly allow the appeal, set aside the order appealed from and remand the petition under Section 7 of the Guardians and Wards Act to the District Court, Bulandshahr, for re-hearing in accordance with law 17th September, 1983 is fixed for the appearance of the parties in the Court of the District Judge, Bulandshahr. The petitioner who is the respondent in this Court shall be permitted to date and properly verify her original petition, by the learned District Judge. The opposite party appellant shall also be present with the two minors who are with him. The petitioner who is the respondent in this Court shall be permitted to date and properly verify her original petition, by the learned District Judge. The opposite party appellant shall also be present with the two minors who are with him. The Court of the District Judge shall make an attempt to bring about a re-conciliation between the parties and in case his efforts do not bear any fruit, he shall fix a subsequent date for hearing on which the parties may lead such evidence as they want to, after the opposite-party has filed his reply to the petition of which a copy shall he furnished to him by the petitioner who is the respondent in this Court. 8. The lower Court record shall he sent down at once to the Court of the District Judge, Bulandshahr with a copy of this judgment. The office shall ensure that the record is received by the Court of the District Judge, Bulandshahr, along with a copy of this judgment, well before the date fixed, that is, 17th September, 1983. I make no order as to costs.