KHURSHID BANU MAHIBUBASAHEB HADDIWALE Vs. MAHIBUBSABEH RAHIMAN HADDIWALE

JUDGEMENT

(1.) THIS is an appeal under the Guardians and Wards Act. The appellant filed an application before the District Court claiming return of the custody of her minor children from the respondent, her husband. The parties were married in 1956. Out of this marriage, three sons and two daughters were born to the parties. She alleged that because of the quarrels and illtreatment, she had to leave the husband. She went to her father along with the children in about March, 1964. She further alleged that on September 2, 1964, the opponent forcibly removed the minor children from her custody. She made the application on November 13, 1964 for the return of the custody of the minors.

(2.) THE case came up for hearing on June 26, 1965. On this date, the appellant was present in Court, but her advocate was engaged in another Court, and, therefore, she could not be present when the case was called up. She refused to enter the Court in the absence of her advocate. The learned Judge started dictating the order of dismissal, and just then Mr. Pinge, her advocate, came to the Court, and still surprisingly enough, the learned Judge continued to dictate the order of dismissal. The appellant challenges the order of the learned Judge in this appeal.

(3.) MR. Sukhtankar raised a preliminary contention that this appeal is incompetent. He relies upon the decision in Mohanlal Dechar. das v. Bombay Life Assurance Co. Ltd. , 52 Bom LR 375: (AIR 1950 Bom 355 ). This case arose out of an ex parte dismissal of a suit on the Original Side of the High Court and the question that was posed before the Bench was whether an appeal lay under Clause 15 of the Letters Patent. The Court held that a dismissal of a suit under O. 9, R. 8 does not affect the merits of a case in that the rights and liabilities of the parties are not decided. It was observed that the learned Judge in such a case makes a procedural order only,. when he dismisses a suit under O. 9, R. 8, and therefore, appeal under Clause 15 of the Letters Patent does not lie, the only remedy available to the party being under O. 9, R. 9. I am asked to apply this decision to a decision made under the Guardians and Wards Act, 1890.