SBCWP No.357/2009 Smt. Mayadevi & Ors Vs. Smt. Santosh. -1- SBCWP No.357/2009 Smt. Mayadevi & Ors Vs. Smt. Santosh. DATE OF ORDER : - 28.1.2009 HON'BLE MR. PRAKASH TATIA, J. Mr. Vishal Sharma, for the petitioners. <><><> Heard learned counsel for the petitioners. The petitioners are aggrieved against the order dated 9th Sept., 2008. The grievance of the petitioner is that the defendants nos. 2 to 5 are minors and no notice was issued to the natural guardian of the defendants nos. 2 to 5 by the trial court and straightway summon for the suit has been issued to the defendants nos. 2 to 5. The defendants nos. 2 to 5 did not appear through their guardian or otherwise. The trial court without application of the plaintiff appointed one advocate as court guardian for the defendants no.2 to 5. It is also submitted that summon of the suit was not served upon the defendant no.1-petitioner no.1 and said summon was offered to one of the defendant, who is minor SBCWP No.357/2009 Smt. Mayadevi & Ors Vs. Smt. Santosh. -2- admittedly on the basis of such service, ex-parte order has been passed against the defendant no.1-petitioner. In view of the above reason, the order of the trial court dated 9th Sept., 2008 is illegal. It is admitted case that the defendant no.1-petitioner no.1 did not submit any application for setting aside the order of ex-parte passed against her on 9th Sept., 2008 before the trial court inspite of the specific procedure in CPC for obtaining the order of setting aside of the ex-parte order passed against the defendant and straightway approached this Court by filing the writ petition. This Court is not inclined to entertain the jurisdiction under Article 227 of the Constitution of India in such fact situation when the defendant did not choose to challenge the order of the trial court to proceed ex-parte against her by availing remedy under the CPC. If the trial court has appointed advocate as court guardian without there being any application of the plaintiff and without following procedure of giving notice to the natural guardian to represent the minors then also, the SBCWP No.357/2009 Smt. Mayadevi & Ors Vs. Smt. Santosh. -3- proper remedy is to approach the court concerned and show the willingness of the minor's guardian that she is willing to represent the minors in the suit. In view of the above reasons, this Court is not inclined to interfere in the second part of the order dated 9th Sept. 2008. In the civil cases, the parties are required to appear before the trial court itself for appropriate relief and if they cannot get the relief from the same court, then they can challenge the order of the trial court in regular manner. Straightway approaching this Court by filing the writ petition under Article 227 of the Constitution of India cannot be appreciated. Hence, the writ petition of the petitioner is dismissed with liberty to the petitioner to avail any other alternative remedy under the provisions of CPC. (PRAKASH TATIA), J. c.p.goyal/-