KHAN SHER DIL Vs. MOHAMDA

JUDGEMENT

(1.) PETITIONER , Sher Dil Khan, has a daughter named, Mst Kulsama. Alleging that she was a minor and, that Mohamda and Sanwaru, respondents had illegally detained her in their house he moved an application under section 25 of the Guardian and Wards Act shortly the Act in the court of District Judge Baderwah and asked for an order for her return to his custody. The learned District Judge, granted the application exparte on 7,6. 1978 and passed the necessary order. On 5 4. 1979, Mohamda moved an application for setting aside the order. He contended that the order had been improperly obtained and erroneously made His case was that the petitioner had suppressed the true facts. He submitted that Kulsama was his lawfully wedded wife and that they had a daughter more than one year old through this wedlock and, moreover, Kulsama was a major aged twenty years, During the pendency of this application Mst.Kulsama herself also appeared in the Court. She also moved an application for recalling the order. She also contended that the order had been improperly obtained and erroneously made. She endorsed the stand of her husband and added that previously her father had raised a dispute about her marriage with Mohamada but ultimately agreed to subscribe to the same on getting a sum of Rs. 500/ - in cash and one buffalo from her husband as a consideration for the compromise and, that, he had even executed a written agreement to that effect -facts which he had suppressed from the court while obtaining the order. On 11.4.1979 the learned District. Judge passed an order setting aside previous order in these term : - "I have heard the parties and have gone through the record. I have also perused the medical certificate issued by the Doctor in which Mst. Kulsuma has been shown as a major but from the order dated 7. 6. 78 Mst - Kulsuma has been shown a minor. This order was passed in exparte and now Mst. Kulsuma has applied for setting aside this exparte order. On the subject various Hon ble High Courts of India have given their rulings. The application of Mst. Kulsuma is within time, therefore the exparte proceedings dated: 7.6.78 is set aside but keeping in view the relations of the parties there will be no order as to costs. Now Sher Dil Khan applicant will lead his evidence to show whether Mst. Kulsuma is a minor or not If the witnesses are required to be called by the Court, the expenses and the list of P. W s be deposited within ten days time. File to come up on 28th May. 1979." Aggrieved by this order Sher Dil Khan has come up in revision to this court.

(2.) THE main contention of the learned counsel for the petitioner was that the trial court has no jurisdiction to entertain an application for altering, varying, modifying or setting aside an exparte order made under the Act He submitted that the application for setting aside the exparte decision was incompetent. For this, he placed reliance upon Section 48 of Act which reads: "Save as provided by the last foregoing section and by section 115 of the Code of Civil Procedure an order made under this Act shall be final, and shall not be liable to be contested by suit or otherwise."

(3.) BEFORE dealing with this argument it may be pointed out that section 141 of the Code of Civil Procedure lays down that the procedure proved in this Code in regard to suits shall be followed as far as it can be made applicable, in all proceedings in any court of Civil Jurisdiction. Section 141 of the present code is equivalent to section 647 of the old Code That section fell for consideration by the Privy Council in the case of Thakur Prasad v. Fakir -ullah 1894 ILR, 17 All, 106. Their Lordships held that, "the proceedings spoken of in section 647 include original matters in the nature of suits such as proceedings in probates, guardian ships and so forth and do not included executions," In the case of Sarat Chandra Bose V Bhweswar Mitra, the Calcutta High Court interpreted and, I think, rightly so, the expression "so forth" as meaning proceedings ejusdem generis, and the expression original matters" as matters which originate in themselves and not those which spring up from a suit or from some other proceedings or arise in connection therewith". There can be hardly any doubt that a matter arising under section 25 of the Act is a matter which originates in itself and is not one which, springs up from a suit or from some other proceeding or arises in connection therewith". On the language of section 141 the procedure of the Code is to be followed "in all proceedings in any court of civil jurisdiction" and therefore order 9 will apply unless there is something in the Act which expressly or by necessary implication excludes such application. Here it is that section 48 of the Act has been pressed into service by the learned counsel for the petitioner. His contention is that section 48 attaches finality to the orders passed by the trial court under the Act subject, of course, to the provisions of section 47 of the Act and section 115 of the Civil Procedure Code. He tried to draw support for his argument from the decision of the Supreme Court in Gulab Bai v, Puniya AIR. 1966 s.c, 637. That was a hotly contested case in which the trial court, on consideration of the evidence and other circumstances, passed an order appointing appellant No. 2 to be the guardian of the person of the minor under section 7 & 8 of the Act Against this order, the respondent preferred an appeal before the Rajasthan High Court. The appeal was heard by a learned Single Judge of that Court. He reversed the decision of the trial court. Against the decision, the appellant preferred an appeal under clause 18 of the Rajasthan High Court Ordinance, 1949. The appeal was dismissed by a Division Bench of the High Court on the ground that the appeal was incompetent, having regard to the provisions of sections 47 and 48 of the Act Upon further appeal to the Supreme Court, the question arose whether the Division Bench of the High Court was right in taking the view that it did. The Supreme Court held that in considering the question as to whether a judgment pronounced by a Single Judge in an appeal preferred to the High court against one "or the other of the orders which are made appealable by section 47 will be subject to an appeal under clause 18 1 of the Ordinance, S. 48 will have no restrictive impact. The competence of an appeal before the Division Bench will have to be judged by the provisions of clause 18 itself. It is true that incidentally the court also held that the effect of section 48 is that, "an order passed by the trial court shall be final except in cases where an appeal is taken against the said order under section 47 of the Act, or the propriety, validity or legality of the said order is challenged by a revision application preferred under section 115 of the Code" But there is nothing in the judgment to suggest even remotely, that the order contemplated by section 4 includes an exparte order The decision is therefore distinguishable in the present case. The case which is more directly in point in Nagardas Vachraj v. Anandrao Bhai ILR 31 Bom: 590 In that case, it was held that, "Section 48 of the Guardian and Wards Act immediately following as it does the section which provides for appeals is intended to give finality to contested orders and to enact that, when once an order is made, except as provided in section 47 and saving the provisions of section 622 of the Civil Procedure, Code, the order shall be final and shall not be contested by a substantive suit or by any other form of litigation." I am in respectful agreement with these observations and hold that section 48 does not create any war against competence of an application under section 141 read with O. 9 R. 13 for setting aside an exparte order made under the Act.