1 ao45.11 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD APPEAL FROM ORDER NO. 45 OF 2011 WITH CIVIL APPLICATION NO.2780 OF 2011 Shaikh Raju Shaikh s/o Shaikh Mannu, Age: 28 years, Occ: Agri., R/o. Hatgaon Kambt, Tal. Shevgaon, District Ahmednagar. ...APPELLANT VERSUS Naseeba w/o Sk. Lal, Age: 61 years, Occ: Household., R/o. Agarnandar, Tq. Paithan, District Aurangabad & Anr. ...RESPONDENTS ... Mr. Yuvraj V. Kakade, Advocate for appellant. Mr. V.R. Jain, Advocate for respondents. ... CORAM: S.S. SHINDE, J. DATE : 21ST JULY, 2011 PER COURT : Learned Counsel appearing for the appellant at the outset makes a statement that, in pursuant to the orders passed by this Court on 2 ao45.11 18-04-2011 and 20-06-2011, the appellant has deposited Rs. 14,000/- (Rs. Fourteen thousand only) in the Registry of this Court. The respondents are permitted to withdraw the said amount. However, it is made clear that they should utilize the said amount for the welfare of the minor. 2. This Appeal from Order takes exception to the order dated 17-01-2011 passed by the District Judge, Aurangabad in M.A.R.J.I. No. 73 of 2010. 3. It is the case of the appellant that the marriage of the appellant and deceased Hasina i.e. daughter of respondents herein was solemnized at Agarnandar Taluka Paithan District Aurangaba in 2005. After marriage, the appellant and Hasina cohabited happily at Hadgaon only for about 5 to 6 months. Hasina i.e. wife of the appellant thereafter deserted the appellant and started to reside with her parents i.e. present respondents. On 08-02-2006 Hasina gave birth to a male child namely Rashid. On 07-08-2007 the application 3 ao45.11 under Section 125 of the Code of Criminal Procedure was filed by deceased Hasina alongwith minor child against the appellant. In the year 2009 Hasina, wife of the appellant expired. On 12-02-2010 M.A.R.J.I No. 73 of 2010 is filed by the appellant under Section 25 of the Guardian and Wards Act, for custody of the minor child from the respondents. 4. On 08-07-2010 Criminal Application No. 110 of 2007 filed under Section 125 of the Code of Criminal Procedure was decided by the Judicial Magistrate, First Class, Paithan, thereby awarding maintenance of Rs.500/- per month to the minor child. 5. On 21-12-2010 the respondents filed affidavit of their witness in support of their case. The matter was adjourned to 17-01-2011 for cross examination of the witness of respondents i.e. respondent No.1. 6. On 17-01-2011 Advocate for the appellant 4 ao45.11 remained absent from the Court due to personal difficulty and therefore, "no cross examination order" came to be passed and on the same day, matter was heard finally and proceeding was closed for order. 7. Learned Counsel appearing for the appellant submits that, presence of appellant on the date on which the matter was fixed for cross examination of respondent No.1 on 17-01-2011 was not necessary. Advocate of the appellant was not present due to his personal difficulty and therefore, respondent No. 1 was not cross examined and consequently, no cross examination order came to be passed and ultimately, the District Court has finally rejected the application of the appellant. In respectful submission of the Counsel for the appellant, because of the fault of the Advocate who was engaged by him, the appellant should not suffer. It is further submitted that, ultimately, it is a question of custody of the minor child whose age was 4 to 5 years and being 5 ao45.11 father, he is entitled for the custody of the minor child. 8. Learned Counsel for the appellant has placed reliance on the judgment of this Court in the case of Annasaheb Virupaksha Bidre vs. Dada Tatoba Patil and others, reported in 2005(4) Bom.C.R. 319 and contended that because of the mistake of Advocate, the appellant should not suffer and therefore, this Court may take lenient view by allowing this Appeal from Order and give chance to the appellant to cross examine respondent No.1 and ultimately restore the application filed by the appellant. 9. On the other hand, learned Counsel for the respondents submits that without any intimation to the Court, the appellant and his Advocate remained absent and therefore, there was no option to the Court but to pass "no cross examination order" and ultimately the District Court taking reasonable view, has dismissed the application. Therefore, this Court may not allow 6 ao45.11 the Appeal from Order. 10. I have given due consideration to the submissions of the learned Counsel for the respective parties. In my opinion, to meet the ends of justice, it would be just and necessary to restore the application filed for the custody of minor child, to its original file and to set aside "no cross examination order" passed by the District Judge, Aurangabad dated 17-01-2011. It is not in dispute that the Advocate who was engaged by the appellant herein remained absent on the date on which the matter was fixed for cross examination of respondent No.1 due to some personal difficulty. It is true that, the Advocate should have file leave note or sick note, as the case may be, however, the fact remains that the appellant should not suffer for the fault of his Advocate. Application which is filed by the appellant herein is for the custody of his minor child and therefore, rejection of such application would result its bar to the appellant to pray for 7 ao45.11 custody of the minor child. 11. Therefore, taking overall view of the matter, the ends of justice would meet if the impugned order is quashed and set aside and application for custody of minor child is restored to its original file. The impugned order dated 17-01-2011 passed by the District Judge, Aurangabad is quashed and set aside and application bearing M.A.R.J.I. No.73 of 2010 is restored to its original file. However, it is made clear that the District Court will proceed in the matter from the stage of cross examination of respondent No.1. This order is passed subject to deposit of costs of Rs.6000/- (Rs. Six thousand only) by the appellant before the District Court, Aurangabad within three weeks from today, failing which, order dated 17-01-2011 passed by the District Judge, Aurangabad will remain as it is. Needless to mention that as soon as such amount of Rs.6000/- is deposited by the appellant herein, the respondents will be entitled to withdraw the 8 ao45.11 same. However, the said amount should be utilized for the welfare of the minor. 12. With these observations, Appeal from Order is allowed to above extent and same stands disposed of. Consequently, Civil Application also stands disposed of. [S.S. SHINDE, J.] sut/JUL11