Order on Board

1. Heard.

2. Present is a writ petition filed by the petitioner against the order dated 26.09.2024 passed by learned Principal Judge, Family Court, Bilaspur (C.G.) in Case No. 11/2024 whereby the application filed by the respondents under Order 9 Rule 13 read with Section 151 of CPC and application under Section 5 of the Limitation Act have been allowed and the ex-parte judgment and decree dated 05.08.2023 has been set aside and parties are directed to remain present before the Family Court.

3. Learned counsel appearing for the petitioner would submit that the petitioner had prosecuted an application under Section 7, 8, 9 and 12 of the Guardians and Wards Act, 1890 for declaring himself to be guardian of respondents No. 2 and 3 and despite service of notice upon the respondent No.1, she had not participated in the proceeding and an ex-parte judgment and decree has been passed by the learned Principal Judge, Family Court, Bilaspur vide judgment and decree dated 05.08.2023 passed in Civil M.J.C. No. 14A/2023. After a long lapse of time, the respondents have filed an application under Order 9 Rule 13 read with Section 151 of CPC on 06.03.2024 alongwith the application under Section 5 of the Limitation Act, which have been allowed by the learned Family Court and after condoning the delay, the ex-parte judgment and decree has been set aside on the ground that the summons issued to the respondents have been served upon the father of the respondent No.1, and therefore, in view of the welfare of the minor child, the matter needs to be adjudicated on merits after hearing the respondents, and therefore, set aside the impugned ex- parte judgment and decree. He would also submit that the respondents are trying to delay the proceeding as they repeatedly not appeared in various other proceedings also. Without considering the entire facts and circumstances of the case, learned Family Court has passed the order on 26.09.2024 and set aside the impugned ex-parte judgment and decree. He would also submit that against the order dated 26.09.2024, the petitioner had filed a review application before the learned Family Court which has also been dismissed vide order dated 14.07.2025. The respondents were well aware about the proceeding of the learned Family Court despite that they have not appeared in the proceeding and the learned Family Court proceeded ex-parte and passed ex-parte judgment and decree which can not be set aside without any sufficient reason for their non-appearance, therefore, the impugned order suffers from perversity and illegality and the same is liable to be set aside.

4. I have heard learned counsel for the petitioner and perused the material annexed with the writ petition.

5. From perusal of the document annexed with the writ petition, it transpires that the learned Family Court, Bilaspur has passed an ex- parte judgment and decree on 05.08.2023 by which the petitioner was declared to be guardian of the respondents No. 2 and 3. When the respondents came to know about the ex-parte judgment and decree, they filed their application under Order 9 Rule 13 of CPC on 06.03.2024 in which they averred that they have not received any summons of the proceeding. It is also averred that the name of the father of the respondent No.1 was shown as Arjun Khunte in the application filed by the petitioner but from the order sheets of the learned Family Court, it transpires that there was no notice served upon Arjun Khunte and it was stated in the order sheet dated 23.06.2023 that the summons was served upon one Arjun Lal. Without considering that the summons has not been served upon the respondents, they have been proceeded ex-parte and therefore, the same may be set aside.

6. The learned Family Court while allowing the application under Order 9 Rule 13 of CPC filed by the respondents considered that present is a case for declaration of guardian of minor children who are the respondents No. 2 a