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2016 DIGILAW 1062 (CAL)

Robin Mondal v. Soma Mondal

2016-12-22

ISHAN CHANDRA DAS, JYOTIRMAY BHATTACHARYA

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Jyotirmay Bhattacharya, J : 1. This first miscellaneous appeal is directed against an order being Order No.31 dated December 1, 2016 passed by the learned Additional District Judge, 2nd Court at Barasat in Misc. Case No.194 of 2015 at the instance of the applicant. 2. The appellant’s application under section 25 of the Guardians and Wards Act, 1890 was fixed for hearing on December 1, 2016. On that date the applicant was required to give evidence in the said proceeding. Instead of giving evidence, he filed an application praying for adjournment. His prayer for adjournment was rejected by the learned trial Judge, since on earlier two occasions the applicant’s prayer for adjournment was allowed. 3. Incidentally, it may be mentioned herein that the applicant also filed an application on November 22, 2016 seeking permission to meet his daughter on her birthday which was scheduled on December 16, 2016 and also seeking permission so that the applicant can take the child out for having lunch and dinner and/or cutting the birthday cake. 4. By the impugned order the learned trial Judge rejected the application for adjournment. By the self-same order the miscellaneous case under section 25 of the 1890 Act was also dismissed for non-prosecution. The application which was filed by the applicant on November 22, 2016 was also rejected as infructuous in view of the dismissal of the said proceeding. The legality of the said order is under challenge in this appeal. 5. Let us now consider how far the learned trial Judge was justified in passing the impugned order in the facts of the instant case. 6. On perusal of the impugned order, we find that the application under section 25 of the 1890 Act has already matured for hearing. The said application was posted for hearing on August 16 and 17, 2016. The hearing could not be taken up as the applicant sought for adjournment on those days. Subsequently he filed another interlocutory application on November 22, 2016 seeking permission to meet his daughter and take her out for having lunch and dinner on her birthday – i.e. December 16, 2016. 7. Even on the date which was fixed for hearing of the said miscellaneous case i.e. December 1, 2016 the applicant did not cooperate with the court. He sought for adjournment of hearing of the main proceeding. 7. Even on the date which was fixed for hearing of the said miscellaneous case i.e. December 1, 2016 the applicant did not cooperate with the court. He sought for adjournment of hearing of the main proceeding. The learned trial Judge held that the proceeding got matured for hearing and was posted on August 16 and 17, 2016. Had the applicant cooperated with the court on those two days and participated in the hearing of the said proceeding, the main proceeding under section 25 of the 1890 Act could have been disposed of by that time. 8. When, under such circumstances, the learned trial court rejected the applicant’s prayer for adjournment filed on December 1, 2016, we do not find any unreasonableness in the impugned order passed by learned trial Judge. However, we find that by the self-same order the learned trial Judge dismissed the said miscellaneous case for non-prosecution. This part of the order, in our view, is not justified, since we are of the view that after rejecting the applicant’s application for adjournment, the court should have given an opportunity to the applicant to participate in the hearing of the main proceeding and even despite affording such an opportunity, the parties refused to participate in the hearing of the said proceeding, the court could have dismissed the main proceeding for default. This course has not been followed by the learned trial Judge while dismissing the applicant’s section 25 application. There the court committed a mistake. 9. Accordingly, we set aside the impugned order and restore the miscellaneous case under section 25 of the Guardians and Wards Act, 1890 and request the learned trial Judge to dispose of the said application on merit, provided however the parties cooperate with the learned trial court on the date of hearing to be fixed by the learned trial court according to its convenience. 10. Considering the fact that the miscellaneous case arises out of the proceeding under section 25 of the Guardians and Wards Act, 1890, we request the learned trial Judge to make all endeavour to dispose of the main proceeding by the end of March 2017, without granting any unnecessary adjournment to any of the parties. 11. 10. Considering the fact that the miscellaneous case arises out of the proceeding under section 25 of the Guardians and Wards Act, 1890, we request the learned trial Judge to make all endeavour to dispose of the main proceeding by the end of March 2017, without granting any unnecessary adjournment to any of the parties. 11. Before parting we make it clear that since the fourth birthday was scheduled on December 16, 2016 which has already been crossed, the application which was filed on November 22, 2016 has now become infructuous. 12. Therefore, the said application need not be considered by the learned trial Judge on merit. The said application is deemed to be disposed of. 13. The appeal and the stay application (CAN No.11756 of 2016) stand disposed of accordingly. 14. Certified photostat copy of this order, if applied for, shall be given to the parties.