Allowed

Balwant Singh v. Manpreet Kaur

Punjab & Haryana HC7 Aug 2014FAO/2321/2010

Case brief

AI extract

What is this about?

The High Court allowed an appeal against an ex-parte guardianship order, finding service of summons defective. The matter was remanded for a fresh trial after giving both parties an opportunity to lead evidence, with costs imposed on the appellant.

What did the court decide?

The appeal was allowed with costs of ₹5,000. The matter was remanded to the trial Court for a fresh disposal after the appellant files a written statement within 15 days and both parties get an opport

Balwant Singh Vs Manpreet Kaur — Child Custody and Guardianship | Punjab & Haryana HC (2014)

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FAO No. 2321 of 2010

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IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH

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FAO No. 2321 of 2010 DATE OF DECISION : August 07, 2014

Balwant Singh

...Appellant

Versus

Smt. Manpreet Kaur

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...Respondent

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CORAM: HON’BLE MR.JUSTICE M.JEYAPAUL

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HON'BLE MS. JUSTICE NAVITA SINGH

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Present :- Mr. Manish Prabhaker, Advocate for the appellant.

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Mr. Anil Chawla, Advocate for the respondents.

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M.JEYAPAUL, J.

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The appellant Balwant Singh aggrieved by the order passed under Section 25 of the Guardian and Wards Act and under Section 8/9 of the Hindu Minority and Guardianship Act by the trial Court has preferred the present appeal.

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Manpreet Kaur the wife of the appellant herein filed a petition under the aforesaid provision of law against the appellant herein praying for Guardianship of her son Avishdeep Singh who was born on 23.8.2002. The trial Court having set the appellant

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PARVINDER SINGH 2014.08.11 16:27 I attest to the accuracy and integrity of this document Chandigarh

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FAO No. 2321 of 2010

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herein ex-parte as he had not chosen to contest the petition for Guardianship filed by his wife chose to grant a decree as prayed for by the respondent herein.

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The learned counsel appearing for the appellant would submit that the appellant was in fact not served with any summons in the trial proceedings and, therefore, the order passed by the trial Court has to be set aside and the matter will have to be remanded for fresh trial.

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The learned counsel appearing for the respondent Manpreet Kaur would submit that in fact the appellant was found in the address shown in the petition but inasmuch as he had evaded to receive the summons, the Court official had to affix Court summons on the address shown in the petition. He would submit that the service was sufficient and, therefore, the appellant was rightly proceeded against ex-parte.

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We perused the endorsement made by the process server Ashok kumar as regards the service of summons effected by him on 25.6.2008. The endorsement made by the process server would disclose that a servant from the tea stall which was given as the address of the appellant herein came out of the tea stall, when the process server was making an enquiry about the appellant and informed the process server that the appellant was inside the tea stall and thereafter the said servant came out again and informed the process server that the appellant was not inside. The process server having noted that the appellant deliberately disappeared from the tea

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PARVINDER SINGH 2014.08.11 16:27 I attest to the accuracy and integrity of this document Chandigarh

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FAO No. 2321 of 2010

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stall reportedly pasted the summons on the door of the tea stall.

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From the above endorsement made by the process server, we find that the process server had no occasion to directly meet to the appellant in the tea stall. The process server was guided by the version of the servant of the tea stall. Secondly, we find that there was no personal service in this matter.

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Of course, the learned counsel appearing for the respondent Manpreet Kaur drew our attention to the direction given to SHO of the Police Station concerned to produce the child on the basis of the warrant issued to the SHO but no further proceedings based on such warrant issued to the SHO is found on record. In other words, it is not as if the appellant came to know of any warrant issued by the trial Court in the guardianship proceedings to the SHO directing the SHO to produce the child from the custody of the appellant.

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We have every reason to come to a conclusion that the appellant was not aware of the proceedings pending before the trial Court under Section under Section 25 of the Guardian and Wards Act and under Section 8/9 of the Hindu Minority and Guardianship Act at the instance of his wife Manpreet Kaur. In the above circumstances, the appellant has also to be given an opportunity to file written statement and lead evidence.

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We find that the respondent Manpreet Kaur has sufficiently suffered by contesting the present appeal preferred by the appellant. Therefore, some cost will have to be imposed on the

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PARVINDER SINGH 2014.08.11 16:27 I attest to the accuracy and integrity of this document Chandigarh

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FAO No. 2321 of 2010

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appellant while allowing the appeal.

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The appeal is allowed with a cost of `5000/- to be paid by the appellant to the respondent before filing the written statement by the appellant and the matter is remanded to the trial Court for fresh disposal after giving opportunity to both sides to lead evidence after the appellant herein files his written statement within 15 days from the date of first appearance before the trial Court. The trial Court is directed to dispose of the case within six months from the date of first appearance of the parties. Both the parties shall appear before the trial Court on 19.8.2014.

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(M. JEYAPAUL) JUDGE

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(NAVITA SINGH) JUDGE

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August 07, 2014 p.singh

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PARVINDER SINGH 2014.08.11 16:27 I attest to the accuracy and integrity of this document Chandigarh

Balwant Singh v. Manpreet Kaur

Case brief

What is this about?

What did the court decide?

Balwant Singh v. Manpreet Kaur

Case brief

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What did the court decide?

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