The place where the minor ordinarily resides so as to confer jurisdiction on the concerned District Judge, has to be interpreted in each case depending upon the facts and circumstances of that case.

G. B. PATTANAIK, J.

( 1 ) THIS appeal is directed against the order of the learned District Judge, Ganjam who by the impugned order has held that he has jurisdiction to deal with the case.

( 2 ) THE appellants are in custody of the minor child of respondent No. 1 after the death of the wife of respondent No. 1. Respondent No. 1 is a permanent resident of Berhampur town in the district of Ganjam. He had married the daughter of appellant No. 2 on 8-4-1979 and both of them came to Phulbani on 27-2-80 where they were serving, a child had been born out of their wedlock and was also with them at Phulbani. On 21-5-86, the wife of respondent No. 1 fell ill and, therefore, the said respondent No. 1 took his wife and child to his father-in-law's house at Visakhapatnam and left them there for better treatment. But as respondent No. 1 was not pulling on well with his in laws, he himself came away. The wife of respondent No. 1 died on 31-5-86 and the minor child who had accompanied his mother remained there at Visakhaphtnam. Respondent No. 1 approached his in-laws to get back his son, but they refused to hand over the child to him. While the minor boy thus continued to remain at Visakhapatnam and respondent No. 1 could not get back his son he filed an application for the custody of his on son under S. 25 of the Guardians and Wards Act before the learned District Judge, Ganjam. The appellants appeared before the learned District Judge pursuant to notice served on them and filed an application that the District Judge, Ganjam had no jurisdiction to entertain the application since the minor child ordinarily resides at Visakhapatnam and under S. 9 of the Guardians and Wards Act, it is the District Judge having jurisdiction in the place where the minor ordinarily resides can entertain an application. The said application of the appellants having been rejected by the impugned order, the present appeal has been filed : -

( 3 ) THERE is no dispute with regard to the facts stated earlier. The only dispute centres round is an interpretation of S. 9 of the Guardians and Wards Act (hereinafter referred to as the 'act'), more particularly the true import and meaning of the expression "ordinarily resides under S. 9 (1) of the Act. For better appreciation of the point in issue, S. 9 (1) of the Act is extracted hereunder : - "if the application is with respect to the guardianship of the person of the minor, it shall be made to the District Court having jurisdiction in the place where the minor ordinarily resides. " the bone of contention between the parties is, according to the appellants, the minor ordinarily resides at Visakhapatnam whereas according to the respondents, the minor ordinarily resides either at Berhampur, the permanent place of residence or at Phulbani, the place where he was staying with his father, but for his accompaniment with his mother to Visakhapatnam where his mother died.

( 4 ) MR. B. L. N. Swamy, the learned counsel for the appellants contends that ever since the death of the mother of the minor child in the year 1986, the minor having continued to reside at Visakhapatnam with his grandmother and uncle, it must be held that he ordinarily resides there at Visakhapatnam for the purpose, of S. 9 of the Act and, therefore, any application has to be filed within the jurisdiction of the District Judge, Visakhapatnam. Mr. Ratho, the learned counsel for the father-respondent No. 1 on the other hand, contends that Berhampur being the permanent residence of the father as well as of the minor child and the minor had gone to Visakhapatnam only with his mother and continued to remain there because of his mother's death, for the purpose of S. 9 of the Act it must be held that the minor ordinarily resides within the jurisdiction of the District Judge, Berhampur and, therefore, the District Judge, Berhampur has the jurisdiction to entertain the application.

( 5 ) MR. Swamy in support of his contention relied upon a decision of the Rajasthan Hi