Proper service of notice is essential before issuing ex parte orders; failure to comply with statutory provisions renders such orders invalid.

JUDGMENT :

ALOK KUMAR PANDEY, J.

The present appeal is directed against the order dated 18.09.2023 passed in Guardian and Wards Case No. 01 of 2020 by the Court of learned Principal Judge, Family Court, Banka whereby and whereunder appellant no. 1/Nishi Kant Jha has been ordered to hand over appellant no. 2/Ridam Kumari to the respondent/Sanjay Kumar Jha.

2. Briefly stated facts of the case is that respondent is said to have married with Nikita Anand/daughter of appellant no. 1 and out of the said wedlock one daughter/appellant no. 2 took birth. It is stated that respondent visited the house of appellant no. 1 to meet his daughter/appellant no. 2 and the present case has been filed by the respondent being father and natural guardian seeking guardianship of his minor child under the Guardian and Ward Act.

3. With the consent of the learned counsels for the respective parties, the present M.A. No. 82 of 2024 is taken up for final disposal.

4. Learned counsel for the appellants submitted that respondent has filed petition before the Principal Judge, Family Court, Banka for appointment of legal guardian and to take custody of appellant no. 2 as her mother, namely, Nikita Anand (wife of respondent) died at Sikri N.H. 2 near Kaili by-pass road, Faridabad, Hariyana on 05.06.2017 in a road accident and after death of mother of appellant no. 2, appellant no. 1 is taking care of appellant no. 2 at Banka as she was only aged about 4-5 years at the time of death of her mother. Learned counsel further submitted that appellant no. 2 is residing with her grand maternal uncle and she is studying in 5th Class in Saraswati Shisha Mandir, Banka. Learned counsel further submitted that respondent has filed an application before the Principal Judge, Family Court, Banka under Section 7(i) of the Guardians and Wards Act for following relief(s):-

(i) It be held and declared that the respondent is the guardian of the appellant no. 2.

(ii) That upon above adjudication, the court be further pleased to direct the appellant no. 1 to hand over the appellant no. 2 to the respondent.

(iii) The learned Court be further pleased to restrain/direct the appellant no. 1 not to interfere in guardianship of the respondent.

5. Learned counsel for the appellants further submitted that Case No. 02 of 2020 was admitted on 23.12.2020 and notices have been issued vide DB No. 4 dated 08.01.2021. Order sheet dated 06.09.2021 revealed that service reports were attached with the records. From order sheet dated 10.10.2022 it appears that all process for service of summons have been completed and it is also presumed that proper service of summon has been served upon the appellants and the petition was posted for ex parte hearing against them under Order IX Rule 6(i)(a) of the Civil Procedure Code, 1908. He further submitted that in the said case three witnesses have been examined on behalf of the respondent, they are PW-1/respondent himself, PW-2 Dinesh Jha/father of the respondent and PW-3 Maharani Devi/mother of the respondent. Thereafter, the concerned court on 18.09.2023 passed the order declaring the respondent as natural guardian of appellant no. 2 and ordered that appellant no. 1 shall hand over appellant no. 2 to the respondent in terms of the order. Learned counsel for the appellants submitted that being aggrieved and dissatisfied with the order dated 18.09.2023 passed by the concerned Family Court, the present M.A. has been presented. He further submitted that impugned order is not justified in the light of statutory provision as well as on the facts as ex parte order has been passed behind the back of the appellants and no notice has been served upon the appellants and service report of summon will reveal the real fact as to whether any notices have been received by the appellants or not. He further submits that impugned order has been passed in contravention of Order IX Rule 6(i)(a) of the CPC as summons were never served upon the appellants and illegal order has been passed