^ ^w^n" WHI^ -y5?f "t|N!<?|^, '^ft^T^, is|<'li-H^< ^...^.^.,@A.)..^Q...^.<k^200% ^n^T ICRR? (^fg^r) w l^te ^T^Ti^'^lN' f I^RW^ft^ ^ft^? APPELLANT: -^ RESPONDENT: Non appiicant ^1^(<^4M ^l^'^ fe^ T^f^R ^Ta?tm^3n^T Smt. Salma Begum, aged 27 years, Wife of Gudda BhaS alias Firoj Khan, Resident of Fui- Chauk, Near Deshi Sarab Bhatti, Raipur (CG) ersus- Asfak Ansari, aged 35 years, Resident of Harna Bandha Road, Durg, Tahsll and District Durg (CG) Division Bench: Hon. Shri Dhirendra Mishra & Hon. Shri R.N. Chandrakar. JJ. 8-5-2009:- Shri Somkant Verma, counsjel for the appellant. Shri Malay Kumar Bhaduri, <|;ounset for the respondent. This appeal is directed aga|ist the order dated 22-8-2008 passed In civil MJC case No.1/2008 wh^reby jearned Principal Judge, Family Court, Durg, has rejected the appjication of the appelSant under Order 9 Ruie 13 read with Section 151 o^ the CPC to set aside ex-parte order dated 20-11-2007 passed in dvil sjuit No.64/2007. Learned counse! for the a| gave birth to a female child name! spellant submitted that the appetlant ly, Karina on 19-9-2001. Dlvorce has taken piace between the parties oiji 11-2-2003. Karina ts presentiy in the custody of the appejlant. The r^spondent fljed an applteation for the ^u^^' \ ^Sf '^rFTRW, ^ftTFrS, [®i<rtl-Hy '8?TO^T^:RW""""""""""""""""""""""""""^^200 3n^r T^F (^ii^^) 3?i!^i ^Y'ft^PF '^11 ^??t^T'i^^ ^, '^^!W^^ 3??^T -^4 '^N9^ 'W^f ^ ft^ <Pn<^l< ^•^tRp^^i^r custody of Karina before the Fa|niiy Court under Sectlon 25 of the Guardlan and Wards act. In the s^id proceedings; ex-parte proceedtngs bn 15-10-2007 and thereafter learned ^n ofthe respondent and dlrected the of Ku. Karina to the respondent. He from the respondent, the appeilant jsince then she Ss residing with her i{;e of the proceedings initiated by the were drawn against the appellant Family Court allowed the appiicati^ appellant to hand over the custod^ further argued that after divorce contracted second marriage and husband at Raipur. However, notii respondent was sent in her Dur^ address and only on the basis of endorsement of refusal present o^er the registered notice envelope, it has been held that notice was di|ly served though in her repiy, in the eariier notices sent by the respor) Phoo! Chowk, Raipur, as she was [ after her second marriage. On the other hand, learned c| ident, she had given her address of residing at the relevant time in Raipur ounsel for the respondent argued that the appeiiant was proceeded ex-^arte on the basis of endorsement of refusal present in the notice sent tl{irough registered post. The appellant did not examine the concerned pcjstman, who had placed endorsement over the envelope. He further SL|bmitted that in her applteation under Order 9 Rute 13 of the C.P.CI maintenance on behalf of minor K^ glven her address of Durg and in t| appeilant that at the relevant timej as well as in her application for irina before the Family Court, she had lese circumstances, contentlon of the she was residing at Ralpur cannot be M l;<;fiwlS1^Bi-!Q,,,.X. ^.... -3-^ ^i^i<n^ '^ftWT^, [®scni^^< f^. *1t^CT8 WW<»1 •-^200 ^^ff^ (^3^?) ^i^r^T^Nr '^^T%^?i^i^ ^ ^rreR ^fet ^ii^i -3- accepted and the triaj Court has i|jght!y held that the appellant was duly served. We have heard learned cou custody of minor girl aged about 7| the custody of the appeilant, ex\ ^Plfe^l Tiiq^ff -^ 'f^st TN^R "^^RrH^i^ ^ise! for the parties. From the impugned order, v^e observe that in a proceeding for the years, which is admittedly presently in parte proceeding was drawn on the basis of endorsement of refusal pj'esent in the registered notice. Sn vlew of the fact that the appellant had| claims that at the relevant tim^ husband at Raipur,which is alscj contracted second marriage and she she was residing with her second reflected from her repiy to the iegal notice sent by the respondent, vfe are of the opinion that the Family Court ought to have allowed oppjortunjty to the parties to put up their case In the said proceeding wi1 whether the service effected upoi |hout entering into technjcatitjes that ^ the appeilant was proper or not, as the order impugned ought to ha\jre been passed after considering the evidence adduced by the respect|ve parties, as the same reiates to the welfare of minor chjld. who is 7 ye mother/her matemal grand motherj. In that view ofthe matter, w^ allowthis appeal,. set aside the oreler of the Famlly Court rejecting the the C.P.C. preferred by the appell ex-parte order dated 20-11-2007 PrincipaJ Judge, Family Court, D |rs' old and presently residlng with her [applteation under Order 9 Rule 13 of |ant. Consequently, we also set aside |3assed in civll suit Ho.64/2007 by the |jrg. We direct the parties to appear iO* ""^, "s^f '^^TPff^l^, ^Til^ij^^ [^<n!^^< "-w^mspff^i •^200 3TS^T '1ra^> ('^3^1) ^T^i^Fl?1W ^m^^yi^iN^ ^ -^. •-^' Ban/e I^i^'^13^ -/,. before the Fami!y Court on 15t 4J"e> Court to pass appropriate ord^ respondent under Section 25 ofth( affording opportunity of hearing matter is pending since Septemt expedited and the same be concljjded period of 4 months. Sd/- Dhirendra Mishra Judge '^F^ta^l 'W^f ^? t^Sl' XN^R ^'3?RlH3:?1^1 i, 2009. We further djrect the trial ar on the appljcation filed by the & Guardian and Wards Act afresh after |o the partjes. Considering that the |3er, 2007, hearing in the matter be expeditiousiy preferably w'rthln a Sd/- R.N. Chandrakar Judge