Point of law : On similar analogy, an appeal under the Act is provided against the order passed under Section 9(3) of the GW Act, 1890 and under Section 47 of the GW Act, 1890. So the principle of return of plaint as provided under Order-7 Rule-10 of CPC would not be applicable.

ORDER :

1. This Appeal from Order under Order 43 Rule 1 of the Civil Procedure Code, 1908 is at the instance of the original appellant in C.M.A. No. 40 of 2017 and is directed against the order passed by the 3rd Additional District Judge, Gandhinagar below Exh.29 dated 01.01.2021. The impugned order is passed below Exh.29 preferred by the original opponent (wife) under Order-7 Rule-11 r/w. Section 9 of the Guardian and Wards Act, 1890 (for short ‘the GW Act’ 1890’) and Section 151 of the Code of Civil Procedure, 1908 (for short ‘the CPC’).

2. Being aggrieved by the same, the present Appeal from Order has been preferred by the appellant- husband on the ground that the Court below has returned the application filed by the appellant to be presented before the competent Court.

3. This Court at the outset questioned the maintainability of the present Appeal from Order under Order-43 Rule-1 of the CPC, in view of the expressed language of Section 104 of the CPC. Since this Court is assessing the maintainability of the present Appeal from Order, only facts germane to decide the said issued are stated herein-below.

3.1. The appellant (original appellant-husband) and the respondent(wife) entered into wedlock on 19.11.2013 as per the Hindu rites and rituals and son Himalaya was born out of the said wedlock on 27.07.2014.

3.2. It is the case of the appellant that the respondent left the matrimonial home on 31.07.2016 without any reason and the son is in the custody of the respondent since then.

3.3. It is an admitted position by both the parties that the minor son ‘Himalaya’ is with the respondent-mother and residing at Muland, Mumbai since 31.07.2016.

3.4. The application being CMA No. 40 of 2017 came to be filed by the appellant under Section 25 of the GW Act, 1890 seeking the following reliefs:

“a. Hon’ble Court be pleased to direct the respondent to hand over the permanent custody of minor son Himalaya to the applicant.

b. Hon’ble Court be pleased to grant such other and further reliefs as may be found just and proper in the facts and circumstances of the case, in favour of the petitioner and against the respondent.”

3.5. A Transfer Petition came to be filed by the respondent-wife before the Hon’ble Apex Court seeking transfer of CMA No. 40 of 2017 from the District Court, Gandhinagar to the concerned Family Court at Mumbai. The said Transfer Petition was not entertained by the Hon’ble Apex Court and the same came to be dismissed. A Review petition also came to be filed, which also came to be rejected.

3.6. The respondent then preferred an application below Exh.29 under Order-7 Rule-11 and Section 151 of the CPC r/w. Section 9 of GW Act, 1890. The reliefs prayed for in the said application are reproduced thus:

“a) that the Hon’ble Court be pleased to reject the present petition;

(b) Cost of this application;

(c) For any such and other order as this Hon’ble Court may deem fit in the interest of justice.”

3.7. The Court below by an order dated 03.03.2020 dismissed the application below Exh.29 on the ground that the said application was not tenable, as the said issue was already decided by the Hon’ble Apex Court and had attained finality. The said order dated 03.03.2020 passed below Exh.29 came to be challenged by the respondent before this Court by filing Civil Revision Application No. 113 of 2020, wherein, this Court after hearing both the parties and on broad consensus to participate in the fresh hearing of Exh.29 application, passed the following order:

“After detailed hearing made before this Court, learned Advocates appearing for the respective parties jointly submitted that they would not invite any reasoned order while keeping all the factual and legal contentions open to be agitated before the learned trial Judge while re-hearing the application made below Exhibit-29 in CMA No.40 of 2017 afresh.

In view of the above submissions made by the learned Advocates appearing for the respective parties, it is directed that the learned trial Judge shall