Deoki Nandan, J. - (1.) THIS is a first appeal from order on a petition under Section 7 of the Guardians and Wards Act. The order appealed from runs as follows: 7.1.1983 case called Shri Gaur for applicant present. The O.P. is not present despite personal service. As such, the application 4/A1 is allowed. Sd/ - A.P.A.7.1.1983District and Sessions Judge,Bulandshahr The objection to this order is that it is based on no evidence and it does not give any reasons for which the father could be removed from guardianship of his minor children and the mother appointed their guardian in his place.
(2.) THE petition bears no date. Even the verification clause does not contain the place or the date of its verification, but it appears to have been presented in the Court of the District Judge on 27th November, 1981. The learned District Judge admitted the petition, ordered it to be registered, and directed issue of notice to the opposite -party fixing 19th February, 1982. The learned District Judge did not apply his mind to the requirements of Section 11 of the Guardians and Wards Act, while directing issue of notice. Section 11 reads thus: 11(1). If the Court is satisfied that there is ground for proceeding on the application, it shall fix a day for the hearing thereof, and cause notice of the application and of the date fixed for the hearing - - (a) to be served in the manner directed in the Code of Civil Procedure on - - (i) the parents of the minor if they are residing in any State to which this Act extends, (ii) the person, if any, named in the petition or letter as having the custody or possession of the person or property of the minor. (iii) the person proposed in the application or letter to be appointed or declared guardian, unless that person is himself the applicant, and (iv) any other person to whom, in the opinion of the Court, special notice of the application should be given; and (b) to be posted on some conspicuous part of the Court -house, and of the residence of the minor, and otherwise published in such manner as the Court, subject to any rules made by the High Court under this Act, thinks fit. The point is that before issuing notice the learned District Judge did not notice that the petition was not signed and verified in the manner required by the Code of Civil Procedure inasmuch as neither the place nor the date of its verification was specified, and while issuing notice of the petition he did not order that a copy of the notice be posted on some conspicuous part of the Courthouse, and of the residence of the minor, and otherwise published in such manner as the Court thought fit. Be that as it may, notice fixing 19th February, 1982, was not duly served and fresh steps for service of notice upon the opposite -party and by affixation were ordered to be taken by 26th September, 1982. The order sheet records under the date 5th July, 1982, that steps for service of notice were taken and notice fixing 1st October 1982 was issued. That notice came back unserved after affixation because the opposite -party to the petition under Section 7, that is, the appellant in this Court, was not found at his residence by the process server. On 8th September, 1982 an application was made on behalf of the petitioner in the Court below, who is respondent in this Court, for service of the notice of the petition on the opposite -party appellant immediately as he was sitting in the Court of the Additional Civil Judge. Immediate notice was taken out, but it appears to have been tendered to the opposite -party appellant not that day but on 21st September, 1982, and the endorsement of refusal on the back of it reads as under: Mai summon lene se isliye inkar karta hun Kynoki iske sath koi kagaj, kis babat yeh summon hai nahi hai. Yeh summon mujhe aaj Atrikta Civil Judge' me pesh kiya gaya hai. Shailendra Kumar Govil 21.9.1982 This was deemed to be sufficient personal service by the learned District Judge and the order under appeal was passed on 17th January, 1983. It may be noticed here that the learned District Judge was on leave on 1st October, 1982 and that is why the case was not taken up on that day, and 7th January, 1983 was fixed for hearing.
(3.) SECTION 13 of the Guardians and Wards Act says that: "On the day fixed for the hearing of the application or as soon afterwards as may be, the Court shall hear such evidence as may be adduced in support of or in opposition to the application.";