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2009 DIGILAW 367 (JK)

Tabasum Manzoor v. Ab. Ahad Bhat

2009-07-28

J.P.SINGH

body2009
1. Looking to the nature of the issue raised in petitioners Appeal, learned counsel for the parties were heard on the restoration application as also on the merits of CIMA no. 68/2008. 2. Petitioners Civil Miscellaneous Appeal preferred against the order dated 25.3.2008 of learned 1st Additional District Judge, Srinagar was dismissed in default and for want of prosecution on September 11, 2008. 3. Application seeking condonation of delay in filing the restoration application was allowed on February 5, 2009 holding that sufficient cause had been made out by the petitioner for condoning the delay. 4. For the reasons stated in the application, projecting, inter alia, his lawyers illness as ground for his non-appearance in the appeal, when called on for hearing, and in view of the question involved in the appeal as to whether or not the learned 1st Additional District Judge, Srinagar had the jurisdiction to appoint guardian in an application moved under Section 25 of the Guardians and Wards Act, 1977 (1920 A.D.), I am inclined to allow the application providing opportunity to the appellant for hearing her appeal on merits. 5. This application is, accordingly, allowed. 6. The short grievance projected by the appellant in support of her appeal against the order passed by the learned 1st Additional District Judge, Srinagar, is that, seized of an application under Section 25 of the Guardians and Wards Act, 1977 (1920 A. D.), hereinafter referred to as "the Act", the learned 1st Additional District Judge had no jurisdiction to appoint the respondents, the maternal-grand-parents, as guardian of the appellants minor son, Nomaun Manzoor. 7. Respondents learned counsel, Mr. Javid Iqbal, submitted that the appellants appeal was not maintainable, as, having consented to the appointment of the respondents as guardian of the minor, the appellant was not entitled to maintain the appeal against the consent order. He was, however, unable to refer to any provision of law, in terms whereof, the District Judge, seized of an application under Section 25 of the Act, could appoint guardian of the minor. 8. I have considered the submissions of learned counsel for the parties and do not find any merit in the preliminary objection raised by the respondents counsel that the appeal was not maintainable, in that, no amount of consent of the parties can vest jurisdiction in a court to award the relief which a suitor had not sought for. 9. 8. I have considered the submissions of learned counsel for the parties and do not find any merit in the preliminary objection raised by the respondents counsel that the appeal was not maintainable, in that, no amount of consent of the parties can vest jurisdiction in a court to award the relief which a suitor had not sought for. 9. Jurisdiction of a court to grant relief to a suitor depends on the pleadings, made by him in this behalf, and in view of the respondents limited pleadings in the present case, seeking only custody of the minor and nothing beyond that, the learned 1st Additional District Judge, had thus no jurisdictional competence to direct appointment of the respondents as minors guardian. 10. Perusal of Section 25 of the Act indicates that in case a ward had left or was otherwise removed from the custody of a guardian, of his person, and the court was of the opinion, that it was for the welfare of the ward to return to the custody of his guardian, it may make order for his return and for the purpose of enforcing the order, may cause the ward to be arrested and delivered into the custody of the guardian. 11. Rather than addressing the respondents application seeking custody of the minor Nomaun Manzoor, the learned 1st Additional District Judge, Srinagar, acting on the objections filed by the appellant that she would concede the respondents application for appointment of guardian, has proceeded to appoint the respondents as the guardian of the minor, although no such prayer had been made by the respondents in their application, and, in this view of the matter, the alleged concession of the appellant would be of no avail. 12. The learned District Judge, has, therefore, erred in not disposing of the respondents application, in accordance with law, as to whether or not they were entitled to the restoration of the custody of the minor, and has instead allowed that relief to them which they had not asked for. 13. The order impugned in the appeal is, therefore, without jurisdiction and un-warranted which is, accordingly, set aside. 14. The learned Ist Additional District Judge, Srinagar is directed to dispose of the respondents application afresh in accordance with the provisions of the Guardians and Wards Act, 1977. 15. Restoration (c) no. 06/2009 and CIMA no. 68/2008 are, accordingly, allowed. 16. 13. The order impugned in the appeal is, therefore, without jurisdiction and un-warranted which is, accordingly, set aside. 14. The learned Ist Additional District Judge, Srinagar is directed to dispose of the respondents application afresh in accordance with the provisions of the Guardians and Wards Act, 1977. 15. Restoration (c) no. 06/2009 and CIMA no. 68/2008 are, accordingly, allowed. 16. Parties through their learned counsel are directed to appear before the learned Ist Additional District Judge, Srinagar on August 10, 2009.