- (1.) R. K. Mahajan, J. This first appeal from order has been preferred by the plaintiff appellant against the order dated 17-9- 1991 passed by S. B. Balveer, IInd Additional District Judge, Bulandshahr dismissing the application of the appellant whereby he has applied for setting side the order dated 19-8-1991 passed in Misc. Civil Appeal No. 7 of 1991 Dr. Girish Nidhi Sharma v. Dr. Neeraj Sharma whereby the court has dismissed the appeal in default of the appellant with costs to respondent.
(2.) IT appears that a divorce petition numbered as O. S. No. 733 of 1988, is pending between husband and wife in the court of Civil Judge, Bulandshahr. An application under Section 26 of the Hindu Marriage Act was moved on behalf of the mother-respondent for the custody of her minor child, namely Tosh Nidhi, aged about 7 years at that time. The learned Civil Judge, Bulandshahr has passed an order on 17-1-1991 to the effect that the custody of the child be given to the mother. Feeling aggrieved against the aforesaid order, the plaintiff has filed an appeal before the District Judge, Bulandshahr which was numbered as Civil Misc. Appeal No. 7, 1991. The IInd Additional District Judge, Bulandshahr has dismissed the appeal in default on 11. 2. 1991 whereafter an restoration application was filed which too was dismissed.
(3.) I have heard Sri Ajit Kumar appearing for the appellant and Smt. Ramo Devi Gupta, Senior Advocate, appearing for the respondent. It is not disputed that the District Judge is enjoying the delegated powers for the appellate court purpose and both the counsel have not disputed this legal argument. This first appeal from order was filed against the order of the IInd Addl. District Judge. Sri Ajit Kumar, learned counsel for the appellant, has argued that the appellant was suffering from dysentery and, therefore, he could not appear before the court. Smt. Ramo Devi Gupta, learned counsel for the respondent, has opposed the same.;