Smt. Uma Vohra vs Ashwani Kumar

J.V. Gupta, C.J.—This revision petition is directed against the order of the Senior Subordinate Judge, exercising the bowers of the District Judge under the Guardians and Wards Act, Gurdaspur, dated November 22, 1989, whereby the application for setting aside the order of striking off the defence was dismissed.

The defendant, who is the father of the minor children had moved an application u/s 25 of the Gurdians and Wards Act. The minor children are in the custody of their mother. The case was transferred from Ghaziabad to the Court at Gurdaspur by the Supreme Court vide order dated August 16, 1988. The parties were directed to appear before the District Judge, Gurdaspur, on August 29, 1988. The husband failed to appear on that date He was directed to appear on November 18, 1988. Later on the wife could not appear and she was directed to file the written statement on payment of Rs. 25/- as costs. Since she failed to make the costs, her defence was struck off u/s 35B of the Code of Civil Procedure, (hereinafter called the Code) vide order dated February, 9, 1989. Then the petitioner moved the application for setting aside the said order as she was prepared to pay the costs. She explained the reasons for non-appearance earlier and non-payment of costs on February 9, 1989. The application was contested on behalf of the respondent-husband. The learned Court took the view that she did not file any medical certificate along with the application, and, therefore, there was no sufficient cause for not attending the Court on the relevant date. According to the trial Court even the wife did not file any application u/s 148 of the Code of or extension of the period on due date i.e. on February 9, 1989.

The learned counsel for the petitioner submitted that it was not an ordinary dispute and taking into consideration the facts and circumstances of the case, the petitioner should have been allowed to file the written statement on payment of costs if any. In any case, argued the learned counsel, the provisions of Section 35B of the Code as such did not apply to the proceedings under the Guardians and Wards Act. In support of the contention, the learned counsel relied upon Smt. Anita Jerath v. Mrs. Pushpawati Jerath, 1989 PLJ 572.

After hearing the learned counsel, I find the learned Senior Subordinate Judge has acted illegally and with material irregularity in the exercise of his jurisdiction. The dispute is for the custody of the children and, therefore the defence as such should not have been struck off; particularly when the wife was ready to pay the costs subsequently. Since she was not present on February 9, 1989, the question of making any application for extension did not arise. Her absence could not be said to be mala fide in any manner.

Consequently, the revision petition succeeds. The impugned order is set aside and the petitioner is allowed to file her written statement on payment of Rs. 100/- as costs. The parties have been directed to appear in the said Court on March 20, 1991.