Hon'ble KOTHARI, J.—This revision petition is directed against the order dtd. 30.11.2010 whereby the learned Court below rejected the application of the defendant-petitioner under Order 7 Rule 11 C.P.C. read with Section 151 C.P.C. and Section 9 of the Guardians and Wards Act, 1890 in which the present petitioner defendant-inaternal grandfather claimed that since the minor Prateek was ordinarily residing with him at Gurgaon (Haryana), the application filed by father Sunil under Section 9 of the Guardians and Wards Act, 1989 for claiming the custody of the said minor could not lie at Nohar within the State of Rajasthan.

2. The learned counsel for the petitioner-defendant Mr. Pankaj Sharma, relying upon the judgment of Gujarat High Court in the case of Shah Harichand Ratanchand vs. Virbhal reported in AIR 1975 Gujarat 150 and Smt. Laxmi Devi vs. Kunwar Pal reported in AIR 2006 Allahabad 281 submitted that in view of language of Section 9(1) of the said Act, the application would lie to the Dist. Judge in whose jurisdiction the minor ordinarily resides. He submitted that marriage between the applicant Sunil and his wife Tamanna, daughter of the present petitioner Hariom took place on 13.5.2006 at Gurgaon and the minor Prateek was born on 12.9.2007 at Gurgaon. The said lady Tamana, wife of the present applicant expired on 6.6.2009 when minor Prateek was about 2 year and few months of age. He submitted that an FIR was lodged against the applicant-husband since death of Tamanna took place in mysterious circumstances. However, the investigating officer gave negative final report in the matter and upon protest petition, the matter is still under investigation and after the death of mother of minor, Smt. Tamanna, the custody of the child is with the present petitioner-maternal grandfather and therefore, the application under Section 9 of the said Act could be brought only at Gurgaon where the child is ordinarily residing.

3. On the other hand, Mr. Suresh Shrimali, learned counsel for the respondent father Sunil submitted that at the stage of Order 7 Rule 11 CPC, the averments in the application/plaint only have to be seen and since admittedly, the residence of child in question prior to the death of wife of the applicant on 6.6.2009 was at Nohar within the State of Rajasthan only, therefore, upon removal of his custody after the death of Smt. Tamanna on 6.6.2009, it cannot be said that ordinary place of residence of minor is at Guragon within the State of Haryana and the cause of action for claiming custody has arisen only because the present petitioner maternal grandfather took away the custody of the child in question forcibly. He submitted that the application under Order 7 Rule 11 CPC has rightly been rejected by the learned court below on the basis of averments made in the plaint/application. Therefore, no interference is called for in the present revision petition. He relied upon the judgment of this Court in the case of Wazid Ali vs. Smt. Rubina Bano and Ors. reported in AIR 2008 Rajasthan 49 and the decision of Punjab and Haryana High Court reported in the case of 1981 All India Hindu Law Reporter 34 Tikka Prittam Singh Sodhi vs. S. Kashmir Singh.

4. Having heard the learned counsels, this Court is of the opinion that there is no force in the present revision petition field by petitioner-defendant. The coordinate Bench of this Court in the case of Wazid Ali (supra) held that where the child was in the custody of grandmother because the mother of the child got remarried, the place of residence of grandmother cannot be said to be ordinary residence of the child and despite re-marriage, the mother could claim custody being natural guardian. The expression "the place where minor ordinarily resides" employed in Section 9(1) of the Act have to be construed to mean the place where minor generally resides and would be expected to reside, but for the special circumstances. This Court in para 19 of the aforesaid judgment held that child w

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