DEEPIKA KUNDI Vs. SUMAN DHIMAN

JUDGEMENT

(1.) THE appellant is aggrieved by the order passed by the Learned District Judge, Bilaspur, in an application under Order IX Rule 13 of the Code of Civil Procedure filed by him, setting aside ex parte proceedings which have been instituted under Sections 7,8 and 9 of Guardian Wards Act for the custody of the minor Baruni. In proceedings under Order IX Rule 13 C.P.C, I am not entering into the arena of adjudication on the merits of the entire proceedings before the learned District Judge. However, what I find is that the learned Court on the basis of no evidence has made certain observations in the appeal which are only not sustainable but also harm the interest of the petitioner herein. In particular, Mr. Ajay Kumar, learned senior counsel appearing for the appellant has drawn my attention to paragraphs 4 and 7 of the judgment of the learned Court. In para -4, the learned Court holds:

(2.) IN drawing the conclusion, the learned court then says:

(3.) IT is to be established on record by leading cogent evidence which should not only be admissible in law but must prove the fact urged which in this case is the performance of the second marriage. Merely accepting an ex parte submission on the basis of document which is not proved but placed on the record as a mark, no finding can be given. The learned Judge should have been aware about the fact that such finding also renders the appellant herein open to criminal proceedings in addition to civil action as also departmental proceedings. This is the seriousness of the established findings on record. Under the circumstances, this cannot be allowed as I find no evidence on the record to establish this fact. I accordingly direct that the findings rendered on this issue shall be expunged from the judgment. In these circumstances, this appeal is disposed of with the following directions: