Bijaya Shankar Gupta vs Rohit Kumar Sahoo and Another

Sanju Panda, J.—In this writ petition, the petitioner challenges the ex parte order dated 7th January, 2013 passed by the learned Judge, Family Court, Rourkela in Execution case No. 14 of 2012 directing the present petitioner to hand over the custody of the child, namely, Barun @ Yash Raj to his father within three months hence. While issuing notice to the opposite party No. 1 on 2nd April, 2013 this Court also stayed the further proceeding of the execution case.

The facts leading to the present writ petition are as follows:

The opposite party No. 1 filed C.P. No. 255 of 2010 before the Court of learned Judge, Family Court., Rourkela u/s 25 of the Guardians & Wards Act, 1890 for custody of the child. The said application was decreed ex parte on 25th February, 2013 against the petitioner. The petitioner filed an application under Order 9, Rule 13 of the CPC to set aside the ex parte decree after the same was brought to his knowledge. The said application was filed on 19th March, 2012 and registered as Interim Application No. 181 of 2012 which is pending for disposal. While the matter stood thus, execution case was filed by the opposite party and the impugned order was passed by the learned Judge, Family Court rejecting the petitioner''s application for stay further proceeding of the Execution case in view of pendency of application under Order 9, Rule 13 of the Code of Civil Procedure.

Learned counsel for the petitioner submitted that admittedly opposite party No. 1, is the father of the child and he married to the daughter of the present petitioner. The child was born at Rourkela Hospital on 30th October, 1994. Thereafter, the daughter of the present petitioner died in 2001 leaving the minor son with him. Since then he has been taking care of the minor, child. Earlier C.P. No. 132 of 2002 filed by opposite party No. 1 u/s 10 of the Guardians and Wards Act was disposed of on 25th August, 2004 by the learned Judge, Family Court rejecting his application to hand over the custody of the minor child to him. After rejection of the said application, in the year 2004 the opposite party No. 1 has filed C.P. No. 255 of 2010 u/s 25 of the Guardians & Wards Act. Though notice was received by the present petitioner and he has participated in a conciliation proceeding at the first instance, the ex parte judgment was passed due to his non-appearance and in the application under Order 9, Rule 13 of the Code of Civil Procedure, the present petitioner has explained the circumstances which is pending consideration. Therefore, a chance may be given to the present petitioner to contest the proceeding on merit.

Learned counsel for the opposite party vehemently opposed the same and submitted that the opposite party No. 1 being the father is the natural guardian and he is entitled to the custody of the child. He has been deprived of the custody of the child and the petitioner who is the material grand father being in ripe age should not deprive the natural father to meet the child. Though the father had been to the school to meet his son, the School authority did not allow him as per the instruction of the present petitioner. Taking into consideration the facts and circumstances of the case and welfare of the child, the custody of the minor child should be given to the natural father. In support of his contention, he has cited the decisions reported in the cases of Kumar V. Jahgirdar Vs. Chethana Ramatheertha, , Smt. Meera Devi Vs. Shyam Sundar Agarwalla, , Jaswant Kaur and Others Vs. Manjit Singh and Others, and in the case of Jai Prakash Khadria Vs. Shyam Sunder Agarwalla and Another, .

In pursuance of the Court''s order the child appeared in person and we interacted with him on 26.7.2013. The child is aged about 12 to 14 years. At the time of interaction, the child has secured 72% of marks in his class test. Thereafter, he has taken admission at Nagpur in a residential School and the document produced by the parties appears that the child has developed a lot in study. At present in class test he is securing more than 80% of marks.

Considering the rival submissions of the parties and after going through the record it appears that the child was staying with his maternal grand father and not well acquainted with his father who is residing at a distant place. He stated before us that he is also not willing to stay with his father. Hence taking into consideration the application filed by the opposite party for custody of the child which is still pending before the trial Court and opportunity has not been given to the petitioner to contest the said proceeding on merit: The apex Court in the case of G.P. Srivastava Vs. Shri R.K. Raizada and Others, wherein it is held that Courts have wide discretion if non-appearance of a party is not mala fide or intentional. If sufficient cause has been stated in the petition, the same shall be considered liberally and liberty should be given to the parties to contest the case on merits without lingering the same and the Courts have wide discretion in deciding the sufficient cause keeping in view the peculiar facts and circumstances of each case. In view of the above settled position of law, this Court sets aside the impugned order dated 7th January, 2013 passed by the learned Judge, Family Court, Rourkela in Execution Case No. 14 of 2012 giving a chance to the petitioner to contest the proceeding on merit.

Accordingly, the writ petition is disposed of with a direction to the Court below to conclude the proceeding within a period of four months from the date of receipt of this order.

Dr. B.R. Sarangi, J.

I agree.