IRFAN AHMED SHAIKH Vs. MUMTAZ

JUDGEMENT

(1.) ON 27th April, 1998, I had passed an order dismissing the above custody petition for default of the petitioner and his Advocate who were absent twice when the matter was on board and was called out for hearing. I had also considered the merits of the matter and after interviewing the child I had dismissed the petitioners custody petition for custody of the child. REVIEW PETITION :

(2.) THEREAFTER the petitioner had filed a Review Petition which was registered as Review Petition No. 16 of 1998. By the said Review Petition petitioner tried to explain his absence and sought restoration of the custody petition and hearing on merits. I had heard the Review Petition on 21-5-1998 as the same was moved during the vacation before me. Several allegations were repeated and the learned Advocate for the petitioner sought not only restoration of the custody petition but also the custody of the child. Once again I considered the whole matter not to leave any grievance in the mind of the petitioner that he was not heard through his advocate. The child was present in the Court with her maternal grand parents. When the matter was being heard the child was crying and was in tears. On a query from me to her whether she would like to go to her father, she replied crying "no" and nodded her head. In spite of the default on the part of the petitioner and his advocate I heard them on merits also while hearing the Review Petition to find out whether they have any case on merits. I had decided the matter on merits of the case that the child never wanted to go to the father as she expressed total unwillingness to go to the father. In the aforesaid circumstances I did not think it proper to send the child to the father against her wishes. I had, therefore, dismissed the Review Petition on 21-5-1998 after hearing the petitioner on merits also. OTICE OF MOTION :

(3.) CURIOUSLY enough the petitioner has once again come before me through the present Notice of Motion filed and registered on 5-6-1998 with a prayer for recall of my Order dated 27-4-1998 dismissing the custody petition and to restore it to file. He once again prayed that he should be heard on merits. Having already considered the same prayers in the Review Petition, no fresh Notice of Motion for the same prayers would be maintainable. This is nothing but abuse of the process of the Court.