GOBIND RAI Vs. PREM LATA

JUDGEMENT

(1.) THE petitioner has filed the present petition impugning the order dated 13.1.2015, passed by the learned court below, whereby the application filed by the petitioner for setting aside the order dated 4.5.2012, proceeding the petitioner ex -parte and dismissing his objections in default, was dismissed.

(2.) IN the case in hand, the respondent filed a petition for seeking custody of two minor sons born out of the wedlock, who are living with the petitioner -husband. The marriage of the parties was solemnised on 19.1.2001. Out of the wedlock, two sons and one daughter were born. Two sons are residing with the petitioner, whereas daughter is residing with the respondent. As the parties could not pull on together, they are living separately. The respondent filed petition on 15.9.2009 seeking custody of the minor sons living with the petitioner, in which the petitioner appeared and filed written statement, but on account of his non -appearance on 15.3.2010, he was proceeded against ex -parte. The learned Guardian Judge passed ex -parte order on 6.1.2012, in favour of the respondent directing the petitioner to hand over custody of the two minor sons to the respondent within two months. As the order was not complied with, the respondent filed execution in February, 2012. After receipt of notice in the execution petition, the petitioner filed objections, besides filing of application for setting aside of ex -parte order passed by the Guardian Judge directing handing over custody of the minor sons to the respondent. Even in the objections filed by the petitioner on account of his non -appearance on 4.5.2012, he was proceeded against ex -parte and his objections were dismissed in default. On 19.7.2012, application was filed by the petitioner for setting aside ex -parte proceedings. As the averments made in the application filed for setting aside ex -parte proceedings were quite vague, the petitioner even amended the same. The aforesaid application was dismissed by the learned court below vide order dated 13.1.2015, which has been impugned in the present petition.

(3.) LEARNED counsel for the petitioner submitted that nonappearance of the petitioner on 4.5.2012 was neither intentional nor wilful, rather, it was for the reason that a wrong date was noted by the counsel and the mistake was bonafide. The application was not belated. The same deserves to be allowed and the objections filed by the petitioner be heard on merits.