inmi—i—Nr .-jiiff^^ ^^ •\v\e ^ c HQN'BLE SHRI R,L. JKANWAR, JJ. Khaa, age 35 years, S/o Hattim KIian, R/o Subhash Nagar, Moudharapa, P.S. Moudhapara, Tahsit & District Raipur(CG) Khudeja Beguni D/.o Shri Haiaid @ LaUu Moulialla,Tarous, ViUage Khatiiariya, Post Khamariya, Tahsfl Moudhaha, District Hamirpur(UP) At preseiit Residing ou C/o Shri Malunood Khaii, Near the House of Habbib AU, R/o Subhash Nagar, Moudhapara, P.S. Moudharpara, Talisil & District RaipurfCG) Sllri J.A.Lohaoi, counsel for the appeUant. Ms. Farall Miahaj, counsel for fhe respondent. (Passed on 14.09.2009) followiag jud t. of fhe Court was passed by T. P. 1. Heard. 2. This appeal under Section 19 ofthe FamUy Court Act, 1984 is directed agaiiist Tlie order dated 31.8.2007, passed by ttie leamed 2nd Additioual Pruicipal, Judge, Fainily Court, .A.(^.f) 64/2007 Raipur ia Case No.02/2005, whereby the learaed Additional Principal Judge has disiaissed fhe appUcation filed luider Order 9, Rule 9 C.P.C. read wifh Section 151 of fhe C.P.C. for restoration of fhe Civil Suit No. 76-A/05 dismissed for non-appearaiice ofthe appellant on 29.7.2005. 3. The order is chaUenged on fhe ground fhat on 29.7.2005 the appeUant was not present, when ftie case was called for hearing befoi^ fhe Judge, Family Coitrt. The suit was disinissed for want of prosecution vide order dated 29.7.2005. Thereafter, on 30.7.2005, the appeUaitt filed aii application for restoration of fhe suit disiuissed for waat of prosecution. But, fhe Coiirt. below has com.iiutted an error of law by not acceptiug fhe explanation offered by appeUant aiid disniissed the application for restoration offhe suit. 4. We have heard leamed counsel for bofh the parties aiid have perused fhe unpugned order aiid record of fhe Court below. 5. Leamed counsel for tbe appeUaut argued fhat tiie other luatnm.onial dispute was also pending before fhe Coiu-t, situated at Hamidpur, State of U.P., where the appeUaut was required to present, but his father was also fll, he was unable to appeaT before the Fauuly Court. The suit was dismissed on 29.7.2005. Next day, .. he- iLas&Sed-.an appUcation. for restoration of the suit, but the sam.e was also disiuissed. The Court below has not accepted the explaiiation offered on behalf of fhe appeUaut. 6. On fhe ofb.er hand, Ms. Farah Minhaj, learaed counsel for fhe respondent argued ttiat tlie present appeUant neifher appeared before the Court at Hamidpur nor before fbe Family Court, Raipur aad has ofFered false explauation for .,-«»"!T F.A.(M) 64/2007 his appearance. The Court below has rightly rejected the explaiiation on tlie grouiid of false explanation. 7. On perusal of tlie order unpugned, it reveals that the appellaat was not present on 29.7.2005, but on the next day, he has filed aii appUcation for settuig aside fhe order on 30.7.2005. Both. the parties have laid evidence in fheir support. 8. TIie appellant has speci&cally deposed iu his evidence fhat he was present before the Court situated at Hamidpur, but fhe respondent has deposed that fhe appeUant was not present fh.ere. Bofh tlie parties have not filed the copy of order sheet to prove tlie fact as to whefher fhe appeUant was present before ttie Court situated at Hamidpur or aot. 9. The original suit was filed by the appeUant for custody of his children under Section 25 85 12 of the Giiardian & Wards Act. 10. On due consideration fhe explaaation offered ou behalf of fh.e appeUaat, we are of the view that an opportunity for coatestiiig tlie. case on inerits, would be just and proper. 1. Consequentiy, the appeal is aUowed. The order impugned is hereby set aside subject to the payiuent ofcost ofRs.1000/- by flie appeUant to fhe respondenf withiii .gECt-da^'s from. today. The case is remitted back t.o fhe Faxuily Court. Parties , are directed to appear before the 2nd Additional Priiicipal Judge, Family Court ..Raipur on 29.10.2009 iu furfher progress oftb.e case. .. Sd/- T.P. Sharma Judge Sd/- R.L. Jhanwar ge sunlta 1