(PER : HONOURABLE MR.JUSTICE VIJAY MANOHAR SAHAI)

1. We have heard Mr. Nachiket A.Dave, learned advocate appearing for the appellant and Mr. Dipal R.Ravaiya, learned advocate appearing for the respondent No.2.

2. This Letters Patent Appeal has been filed by the appellant-original petitioner challenging the order dated 25.04.2014 passed in Special Civil Application No.6090 of 2014 whereby the notice has been issued in the writ petition but the request for interim relief has been refused by the learned Single Judge. The order dated 25.04.2014 passed by the learned Single Judge is extracted below:

“Notice returnable on 30.6.2014. In view of the facts of the case, there quest for interim relief is refused.”

3. The counsel for the respondent No.2 has urged that the Writ Petition and this Letters Patent Appeal are not maintainable as the appellant-original petitioner has filed an application under the Guardians and Wards Act, 1890 (for short the 'Act') and under Section 47 an Appeal from Order would lie to this Court.

4. According to the learned counsel for the appellant, the private respondent-wife of the appellant herein presented the application for seeking interim custody of child before the Learned Additional District Judge, Jamnagar vide Exhibit-22, came to be allowed after conclusion of hearing vide its order dated 7th April, 2014. As the aforesaid order was essentially under Section 12 of the Guardians and Wards Act, 1890, consequently therefore, no remedy of filing either appeal or revision is provided under the provisions of the Act and the order passed by the Additional District Judge in the aforesaid application Exhibit-22 attains finality under Section 48 of the Act. In that view of the matter, the learned counsel for the appellant has argued that there was no option except to file the writ petition under Article 226 of the Constitution otherwise he would have become remediless.

5. We have carefully considered the argument of the learned counsel for the respective parties and we are of the opinion that the interim order granted or refused under Section 12 of the Act is a final order and attains finality in view of the Section 48 also, and therefore, remedy of the aggrieved person would be in filing a writ petition before this Court and an appeal under Section 47 would not be maintainable.

6. Mr.Dipal Ravaiya, learned advocate for the respondent No.2 then urged that even if the writ petition was maintainable before the learned Single Judge and he has issued notice but has refused to grant interim relief, the Letters Patent Appeal would not be maintainable in view of the Five Judges' Full Bench of this Court in the case of Gujarat State Road Transport Corporation v. Firoze M. Mogaland another, 2014 GLH 1.

7. The question that arises for consideration is as to whether the High Court could entertain the writ in exercise of its original jurisdiction or in exercise of its supervisory jurisdiction. The Guardians and Wards Act is a special statute. It does not provide any remedy of revision. The Provisions of Civil Procedure Code is not applicable to the proceedings under the Guardians and Wards Act and the proceedings are governed by the provision of the Act itself. In such a situation, the High Court exercises powers against a final order passed under the Act in its original jurisdiction and does not exercise any power in supervisory jurisdiction. The Five Judges Full Bench's in the case of Five Judges' Full Bench of this Court in the case of Gujarat State Road Transport Corporation (supra) in paragraph-254 has held as under:

“iii) When a writ is issued under Article 226 of the Constitution, it is issued in exercise of its original jurisdiction whether against the Tribunal or inferior Court or administrative Authority.

vii) A writ of certiorari lies in appropriate cases against the order of Tribunal or Court subordinate to the High Court where such a Court, or Tribunal acts not only as an Authority of first instance