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Smt. Radhika W/O Rajesh @ Abhay … vs Shri Rajesh @ Abhay S/O Shyamrao … on 27 August, 2018

1 ao17.18.odt


Smt. Radhika w/o Rajesh @ Abhay Undal ..vs.. Rajesh @ Abhay Shyamrao
s/o Kundlikrao Undal and anr.
Office Notes, Office Memoramda of Coram,
appearances, Court’s orders of directions Court’s or Judge’s orders.
and Registrar’s Orders.
Mr. K. B. Zinzarde, Advocate for appellant.
Mr. A. P. Tathod, Advocate for respondent no.2.


DATED : AUGUST 27, 2018

1. Heard Mr. Zinzarde, learned counsel for the
appellant and Mr. Tathod, learned counsel for respondent no.2.
This Court had on 19.03.2018 issued notice on this appeal to
the respondents. In pursuance to the service of notice,
respondent no.2-Shyamrao Undal put in his appearance
through his advocate. The record shows that the appellant was
required to move the application under Order 5 Rule 20 of the
Code of Civil Procedure to serve respondent no.1-Rajesh alias
Abhay by paper publication. The said was allowed by this
Court on 26.07.2018. In pursuance to that, notice of this
appeal was published in widely circulated newspaper in the
area Deshonnati, dated 07.08.2018. In spite of the said,
nobody put his appearance for and on behalf of respondent
no.1-Rajesh before this Court.

2. The appellant is before this Court against the order
passed by learned District Judge-I, Washim dated 15.11.2017

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below Exh.-5 in Misc. Civil Application No.60/2017, whereby
the Court below has rejected the said application.

3. Without observing anything on merits or demerits of
the matter, it is found by this Court that an application under
Section 25 of Guardian and Wards Act, 1890 was filed by the
appellant-Radhika before District Judge, Washim, which was
registered as Misc. Civil Application No.60/2017. In the said
application, an application under Section 25(2) of the
Guardian and Wards Act, 1890 was filed. The said application
was rejected on 15.11.2017. Perusal of the order shows that
the Court below has not considered the scope of Section 25 (2)
of the Guardian and Wards Act. Instead, he has decided the
same as if it is an application under Section 97 of the Code of
Criminal Procedure. Mr. Tathod, learned counsel for
respondent no.2, submitted that the learned District Judge
could exercise powers under Section 25 (2), only after passing
of the final order.

4. Be that as it may. On the said ground, application is
not rejected. Therefore, in my view, the order impugned
cannot stand to the scrutiny of law. Application Exh.-5 in Misc.
Civil Application No.60/2017 is required to be remanded for
fresh consideration by District Judge for considering scope of
Section 25 (2) of the Guardian and Wards Act. It would be
always open for the respondents in the said application to
make a submission regarding maintainability of the application
under Section 25 (2) and it shall be open for the District Judge

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to decide the said application on its own merits by giving
appropriate notice to the respondents.

5. With this, the impugned order dated 15.11.2017 is
hereby set aside. Application Exh.-5 in Misc. Civil Application
No.60/2017 is restored to file.

Learned District Judge-1, Washim is directed to
decide the application afresh, in accordance with law, as
indicated in this order. Parties shall appear before the learned
District Judge, on next date, which is already fixed by the
Court. With this, the appeal is disposed of.



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