Delhi High Court
Ashwani Verma vs Anjali Verma on 29 February, 2012
Author: Veena Birbal
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ FAO 429/2010
% Date of Decision: 29.02.2012
ASHWANI VERMA ..... Appellant
Through : Mr. Sajan K. Singh, Adv.
versus
ANJALI VERMA ..... Respondent
Through : None
CORAM:
HON'BLE MS. JUSTICE VEENA BIRBAL
VEENA BIRBAL, J.(ORAL)
*
CM No. 21269/2010 (condonation of delay in filing the appeal)
This is an application for condonation of delay of 15 days in filing the
appeal. Respondent has not appeared despite being served.
In view of the reasoning given in the application which is supported
with affidavit of the appellant, delay in filing the appeal is condoned.
Application stands disposed of.
FAO No. 429/2010
1. Present is an appeal wherein challenge has been made to
order/judgment dated 06.05.2010 passed by the learned Guardian Judge, Tis
Hazari Court, Delhi in Guardianship Petition No. 106/2008 wherein the
petition of the appellant/father for the grant of custody of minor child,
namely, Master Hirdyansh Verma, is dismissed.
2. Perusal of impugned order shows that the petition has been dismissed
on the ground that appellant/husband did not lead any evidence and his
evidence was closed and respondent has also not led any evidence and
accordingly vide impugned order dated 06.05.2010 it has been held as
under:-
"Issue no. 1:-
Onus to prove this issue was upon the
petitioner. As already discussed above, the
petitioner has failed to lead any evidence
whatsoever for proving the aforesaid issue. That
being so, the Court has no other option but to hold
that the petitioner has failed to prove this issue.
Accordingly, the issue is decided against the
petitioner."
3. Learned counsel for appellant has submitted that the appellant has not
been given reasonable opportunity to lead evidence to substantiate his case.
It is submitted that Ld Guardian Judge ought not have closed the evidence of
petitioner/appellant . It is contended that great injustice has been caused to
appellant by the impugned judgment in as much as important rights of the
appellant are prejudiced.
4. As noted above, respondent has not appeared despite being served.
5. Perusal of trial court record shows that following issues were framed
on 14.07.2008:-
"1. Whether it would be in the interest and welfare
of the child Master Hirdyansh in case his
permanent custody is granted to his appellant
father Sh. Ashwani Verma as prayed.
2. Relief."
6. Thereafter, the matter was listed on 24.10.2008 for leading evidence
by the appellant. However, the said date was cancelled on 17.10.2008 and
case was adjourned to 26.11.2008. On the said date, the Presiding Officer
was on leave and the matter was adjourned to 26.02.2009. On that day, i.e.,
on 26.2.2009 the court adjourned the matter to 20.08.2009 by noting that the
case is listed for admission/denial and framing of issues. However, record
shows that issues had already been framed. Accordingly, adjourned the
matter to 20.08.2009. Again, on the said date, the Presiding Officer was on
leave and the matter was adjourned to 09.10.2009. On the said date, case
was adjourned at the request of appellant and appellant was also burdened
with cost of Rs. 2,000/- and final opportunity was granted to him and matter
was adjourned to 12.02.2010. However, 12.02.2010 was declared a holiday
on account of „Maha Shivratri‟ and the matter was taken up on 15.02.2010
and on the said date it was adjourned to 06.05.2010. On 06.05.2010, the
evidence of appellant was closed.
7. Keeping in view the above background and for effective disposal of
petition on merits, and also considering that impugned judgment has serious
consequences on the appellant, inasmuch as he is deprived custody of the
child without substantiating his stand by leading evidence, the impugned
order dated 06.05.2010 is set aside. Appellant is given another opportunity
to lead evidence before the trial court, subject to cost of Rs. 5,000/-. The
cost shall be deposited with the Delhi Legal Services Authority within four
weeks from today. Appellant shall also comply with the previous order of
the trial court dated 09.10.2009 wherein cost was imposed within the
aforesaid period.
8. Learned trial court shall be free to decide the case on merits without
being influenced by any observation made hereinabove.
9. Parties to appear before the concerned court/guardianship court on
16.04.2012. Before proceeding further in the matter, the trial court shall give
notice to the respondent.
The appeal stands allowed.
A copy of this order be also sent to respondent by the Registry.
VEENA BIRBAL, J
FEBRUARY 29, 2012
kks
