IN THE HIGH COURT OF PUNJAB AND HARYANA
Date of Decision:01.06.2017
Paramjit Kaur …..Petitioner
Gurpal Singh and others …..Respondents
CORAM: HON’BLE MR.JUSTICE RAMESHWAR SINGH MALIK.
Present: Mr.H.S.Dhandi, Advocate,
for the petitioner.
Ms.Sukhpreet Kaur, Advocate,
for respondent Nos.1 and 2.
RAMESHWAR SINGH MALIK, J.(Oral)
Feeling aggrieved against the impugned order dated 25.04.2017
(Annexure P-5) passed by the learned Family Court, whereby application of
the petitioner for setting aside the ex parte order dated 26.04.2016 was
dismissed, she has approached this Court by way of present revision
petition, filed under Article 227 of the Constitution of India, for setting
aside the impugned order.
Notice of motion was issued.
Heard learned counsel for the parties.
It is a matter of record and not in dispute that the child is of
nine years and living with his mother-petitioner. Grand-parents have filed a
petition under Sections 7 and 25 of the Guardian and Wards Act, 1890 read
with Section 13 of the Hindu Minority and Guardianship Act, 1956 for
custody of the minor. The case was listed before the Family Court on
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26.04.2016, on which date the petitioner could not put appearance and she
was proceeded against ex parte, adjourning the case for 05.08.2016. It is
also not in dispute that on the very next date of hearing i.e. 05.08.2016,
petitioner put appearance and moved the application for setting aside the
above-said order dated 26.04.2016. It was this application which has been
dismissed by the learned Family Court by passing the impugned order.
A bare perusal of the impugned order would show that there
was hardly any delay on the part of the petitioner. Admittedly, she put
appearance on the very next date of hearing i.e. 05.08.2016. In such a
situation, no malafide intention can be attributed to the petitioner. Learned
Family Court proceeded on technical approach while passing the impugned
order. Having said that, this Court feels no hesitation to conclude that the
learned Family Court committed a serious error of law, while passing the
impugned order and the same cannot be sustained.
It is the settled proposition of law that rules of procedure are
meant for advancing the cause of justice. Every court of law must make an
endeavour to grant sufficient opportunity to both the parties to the litigation
to put-up their best case before the Court. Nobody should be forced to go
home with the grievance that reasonable opportunity was not granted by the
learned court. While following the above-said principle of law, the learned
Court shall achieve twin objects; namely, (i) it will avoid multiplicity of
litigation between the parties and (ii) the learned Court would be in a much
better position to do complete and substantial justice between the parties by
rendering an effective judgment. However, in the peculiar fact situation of
the case in hand noticed here-in-above, since the learned Family Court
failed to follow the above-said principle of law in correct perspective, while
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passing the impugned order, it cannot be sustained, for this reason also.
No other argument was raised.
Considering the peculiar facts and circumstances of the case
noted above, coupled with the reasons aforementioned, this Court is of the
considered opinion that since the impugned order has been found suffering
from patent illegality and perversity, the same cannot be sustained.
Accordingly, impugned order dated 25.04.2017 (Annexure P-5) passed by
the learned Family Court is hereby set aside. Application of the petitioner
for setting aside the ex parte order dated 26.04.2016 would stand allowed
and the petitioner shall be permitted to join the proceedings.
Resultantly, with the above-said observations made and
directions issued, instant revision petition stands allowed, however, with no
order as to costs.
June 01, 2017 (RAMESHWAR SINGH MALIK)
Whether speaking/reasoned: Yes/No
Whether Reportable: Yes/No
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