JUDGMENT - V.S. SIRPURKAR, J.:---This is an appeal under section 47 of Guardians and Wards Act, 1890, against the order passed by the trial Court under the provisions of section 10 of that Act, appointing the respondent Kisanrao Mahadeorao Lawange as a guardian of minor Pravin Mohan Ugale and granting custody of the said minor to the respondent. 2. Said Pravin is a son of one Mohan Mahadeorao Ugale and Nirmala Mohan Ugale. Present appellant is the paternal grand-father of the minor as he is the father of said Mohan Ugale. Present respondent is the father of Nirmala. In short, this is the contest between maternal grand-father and paternal grand-father of Pravin for his custody and guardianship. It so happened that on 25-4-1994, said Mohan and Nirmala alongwith their other child died an accidental death. The question of custody has occasioned due to that untimely accidental death of the parents of Pravin. 3. An application came to filed by the present respondent, maternal grand-father being an application under section 10 of Guardians and Wards Act (hereinafter called the Act). By this application, it was contended that the custody of Pravin should be handed over to the maternal grand-father from the paternal grand-father of Pravin and the said maternal grand-father should be appointed as a guardian. It was alleged that brothers of deceased Mohan Ugale were trying to grab the property of the minor and were giving threats to the maternal grand-father that they would take away the minor to their house against the Will of the minor. Amongst the other things, it was further contended that the minor was residing with the maternal grand father. It was alleged in paragraphs 1 and 2 that at the time of accident minor Pravin was residing and being looked after by the applicant maternal grand-father. This application seems to have been presented on 19-5-1994. Strangely enough, on the back-drop of this emphatic assertion of the staying of minor with him, an application came to be made for directing the paternal grand-father for production of the minor. In that application, it was stated that on 19-5-1994, the Court had granted injunction against the relative of Mohan Ugale from interfering with the possession of the minor and that on 5-6-1994, brothers of Mohan viz. Sudhakar and Suresh took away the minor forcibly at Hiwara. In that application, it was stated that on 19-5-1994, the Court had granted injunction against the relative of Mohan Ugale from interfering with the possession of the minor and that on 5-6-1994, brothers of Mohan viz. Sudhakar and Suresh took away the minor forcibly at Hiwara. It seems, thereafter on that application, an order was passed on 7-6-1994 by which the minor was directed to be produced in the Court on 9-6-1994. The minor was so produced on 10-6-1994 and it seems that the Counsel for the applicant Shri A.K. Jape gave no objection if the custody was to be given to non-applicant till Monday. There is also an application for temporary injunction on record but one does not know as to under what circumstances, the said injunction came to be issued, as the parties have not made reference to the injunction order. 4. The present appellant filed his reply to the application for appointment of guardian under section 10 on merits. Number of objections have been raised in this reply, which is in the nature of written statement. It is pointed out in the reply inter-alia that Pravin used to live with his paternal grand-parents. It was pointed out that the wife of the present maternal grand-father was not the real mother of deceased Nirmala, the mother of the minor and as such could not be expected to love the minor with the same intensity as his direct paternal grand-mother would do. It was also pointed out that the said wife of maternal grand-father was suffering from Tuberculosis and, therefore, it was not in the fitness of things to grant custody of the minor to the maternal grand-father. There are some allegations made that the financial position of maternal grand-father was not good. He was given to vices and there were several reports pending in the police station against him. It was also pointed out that the maternal grand-parents are living at Kohla which is quite away from the highway and in the interior. 5. Now once this specific reply was filed, the learned trial Court should have proceeded with the trial of the original application under section 10 of the Act on merits by following the procedure in section 11 to 17 of the Act. 5. Now once this specific reply was filed, the learned trial Court should have proceeded with the trial of the original application under section 10 of the Act on merits by following the procedure in section 11 to 17 of the Act. An application under section 10 has all the characters of a plaint in a civil suit, which is clear from the language of section 10. The application under section 10 is required to be signed and verified in the same manner as prescribed by the Civil Procedure Code for signing and verification of the plaint. There are other minute details, which are required to be stated in that application, which details are provided under Clauses (a) to (1). Under section 11 of the Act, the Court is required to consider the application and if it is satisfied that there is a ground for proceeding, then it is required to fix a date for the hearing of the application after giving notice of the application and the date fixed for hearing to the other side. While issuing notice, the Court is expected to apply its mind and the notice is supposed to be served on the parents of the minor or secondly to the persons named in the application having the custody or possession of the person or property of the minor or thirdly to the person proposed in the application to be appointed as a guardian and fourthly to any other person to whom, in the opinion of the Court, special notice of the application is required to be given. Particularly the language of section 11(1)(iv) suggests that the Court has to make serious efforts by applying its mind to the application. There is a power under section 12 to pass interlocutory order for the temporary custody and protection of the persons or property of the minor. Under section 13, there is a mandate that the Court shall hear such evidence as may be adduced in support of or in opposition of the application. Section 17 provides that in appointing or declaring the guardian of a minor, the Court shall have the highest consideration for the welfare of the minor and under sub-section (2) thereof, the Court is expected to apply its mind, while deciding the question of welfare of the minor. Under sub-section (3), the minors wish is also required to be considered by the Court. 6. Under sub-section (3), the minors wish is also required to be considered by the Court. 6. Now, therefore, a resume of these provisions specifically brings out the position that an application under section 10 of the Act is to be tried like a civil suit, wherein opportunity is required to be given to the parties to lead evidence in support of the application as well as for opposing the same. 7. The learned Counsel for the appellant Shri Gawai submitted that these mandatory requirements, more particularly of section 11 and 13 as also of section 17 have not been followed by the learned trial Court. His complaint is that though only ad-interim custody was to be decided upon in pursuance of the application for temporary injunction, the Court straight away proceeded to decide the main application under section 10 of Act. His complaint is that he has not been given any opportunity to lead any evidence. There is a specific complaint to that effect made in the memo, of appeal before this Court. 8. Shri Deshpande, learned Counsel for respondent submitted that in the absence of record, such statement could not be accepted that opportunity was not given to lead evidence to any of the parties. 9. From the impugned order, it is clear that the learned trial Court has taken into consideration couple of affidavits; one being of maternal grand-father and the other being of grand-mother of the minor suggesting therein that they love the child. 10. It is to be seen as to whether opportunity was really given to the parties and whether the Court was required to give such opportunity to lead the evidence. 11. It is difficult to conceive that the parties refused to tender any evidence, in the wake of the stiff opposition on the question in issue. Here is a case, where both the grand-fathers are fighting tooth and nail for the custody of the minor. Shri Gawai insisted and made an emphatic statement that this was only a consideration of the temporary injunction and in fact all the while his clients were under the impression that what was being decided was the temporary custody and not the final custody. Atleast, there is no counter affidavit to this statement in this Court. Shri Gawai insisted and made an emphatic statement that this was only a consideration of the temporary injunction and in fact all the while his clients were under the impression that what was being decided was the temporary custody and not the final custody. Atleast, there is no counter affidavit to this statement in this Court. Shri Despande points out that there are two affidavits on record, which would mean that the parties were agreeable to lead evidence by affidavits. There is nothing wrong in that. However, it will have to be seen that in the matter under section 10, the Court has a very heavy responsibility to decide about the proper custody of the child. The role of the parties to the application is undoubtedly important but the role of the Court is much more important than that. The Court has to consider independently the welfare of the minor. It has also to show that it has taken into consideration the welfare of the minor as a prime issue. Nothing of the sort seems to have been done by the trial Court in this matter. Beyond saying that the maternal grand-father and maternal grand-mother love the minor and beyond asking the consent of the minor, the Court has really done nothing. The consent of the minor is undoubtedly important as shown in sub-section (3) of section 17. But that is not be all and end all of the matter. The welfare of the minor has to be taken into consideration by the Court under the Guardians and Wards Act. Obviously, there does not appear any finding to that effect in the impugned order. This non-application of mind by the Court becomes all the more pronounced from the fact that there is really no evidence on record from either sides. In fact, the Court should have insisted on the parties to enter in the witness box and lead evidence, for considering the welfare of the minor. By that the Court itself could have put the necessary question to ascertain about the welfare of the minor. The Court remained as a mute spectator and chose to rely on the two affidavits filed on behalf of maternal grand-father. By that the Court itself could have put the necessary question to ascertain about the welfare of the minor. The Court remained as a mute spectator and chose to rely on the two affidavits filed on behalf of maternal grand-father. I do not find anything in the order of the trial Court or in the proceedings which have been filed before me to show that the Court either granted opportunity to the parties to lead evidence or insisted upon such evidence for applying its mind for considering the question of custody in the light of the welfare of the minor. The impugned order will have to be set aside. 12. Matter is sent back to the trial Court for trial afresh. The trial Court will now give opportunity to the parties to amend their respective pleadings, frame the issue and decide the application in the regular manner in the light of the observations made above. For the present, it will be proper to continue the arrangement made by the trial Court treating the same to be an order of temporary custody. However, it shall be open to the parties to pray for the access to the minor, which access has completely ignored by the trial Court. After all the custody was not granted to the exclusion of the rival party and the Court should have remembered that the contesting parties are direct grand parents of the minor. The main application would be decided within a period of six months from today in the light of the observations made in this order. 13. In the result, the order of the trial Court is set aside. However, it is directed that the arrangement in the order shall continue for six months period from today, during which, the application shall be disposed of. The parties undertake not to use dilatory tactics. The trial Court shall observe time Schedule to the hilt. No order as to costs. Parties to appear before the trial Court on 26-9-1995. With these observations, the appeal is disposed of. Appeal allowed. *****