C/SCA/11103/2024 ORDER DATED: 18/07/2025 IN THE HIGH COURT OF GUJARAT AT AHMEDABAD R/SPECIAL CIVIL APPLICATION NO. 11103 of 2024 ================================================================ PRITIBEN D/O KANTIBHAI PATEL Versus STATE OF GUJARAT & ANR. ================================================================ Appearance: MR DHRUV R THAKKAR(11280) for the Petitioner(s) No. 1 NOTICE SERVED for the Respondent(s) No. 1 SERVED BY AFFIX(N) for the Respondent(s) No. 2 ================================================================ CORAM:HONOURABLE MR. JUSTICE DEVAN M. DESAI Date : 18/07/2025 ORAL ORDER 1. The present petition is filed under Article 226 of the Constitution of India for the following reliefs: “(A) Be pleased to admit and allow the petition. (B)Be pleased to issue appropriate writ of mandamus or any other appropriate writ, order or direction, to accept the restoration application of the petitioner annexed at Annexure-B, to Ld. Registrar (Family court at Anand). (C)****” 2. Heard learned advocate Mr. Dhruv R. Thakkar for the petitioner. Though served, none appeared for respondent Nos.1 and 2. 3. Upon request of learned advocate for the petitioner, this petition is taken up for final disposal. C/SCA/11103/2024 ORDER DATED: 18/07/2025 4. Learned advocate for the petitioner submitted that the present petitioner had filed an application under Sections 7 and 8 of the Guardian & Wards Act, 1890 (for short, hereinafter referred to as `the Act’) being Civil Misc. Application (Guardian & Wards) No.8 of 2023 before the learned Principal Judge, Family Court, Anand. The said application came to be dismissed for default by learned Judge on 19.12.2023 as the present petitioner could not provide address of respondent for service of summons. Thereafter, the present petitioner filed restoration application under Order 9 and Rule 9 of the Code of Civil Procedure, 1908 (for short, hereinafter referred to as `the Code’). The restoration application was not accepted by respondent No.1 and hence, the main application remained dismissed for default. It is submitted that the main application is for appointment of a guardian and the same is dismissed on a technical ground of non-compliance of the order of service of summons to opponent. It is submitted that the petitioner may not suffer because of the non-compliance of the order of service of C/SCA/11103/2024 ORDER DATED: 18/07/2025 summons. It is therefore, prayed that the respondent No.1 herein be directed to accept fresh application for restoration of CMA (Guardian and Wards) Application No.8 of 2023. 5. Considering the averments made in the petition as well as submissions canvassed by learned advocate for the petitioner, it appears that the petitioner has filed an application under Section 7 and 8 of the Act for a relief of appointment of a guardian of minor children. The order dated 19.12.2023 indicates that the petitioner was given ample opportunity to provide fresh address of respondent. However, on the date of order, the petitioner did not remain present and no application for re-issue of summons was made. Resultantly, the application came to be dismissed for default. The grievance voiced out by the present petitioner is that the respondent No.1 did not accept the restoration application which was requested to be registered by the petitioner. Be that as it may, the right of a litigant should not be non-suited on ground of non-service of summons. Considering C/SCA/11103/2024 ORDER DATED: 18/07/2025 the averments made in the main application being No.8 of 2023, petitioner is required to be given a chance to prove her case on merits. In the overall view of the order, the petitioner is permitted to file fresh application for restoration of CMA (Guardian and Wards) Application No.8 of 2023. Once the application for restoration is restored, learned Family Court shall decide the application on merits and as per the law. Learned Family Court may not be influenced by the order passed by this Court in the present petition. 6. Considering the said fact the petitioner is allowed subject to cost of Rs.5,000/- to be deposited before District Legal Service Authority, District Court, Anand before the date of filing of restoration application is filed. Direct Service is permitted. (D. M. DESAI,J) RINKU MALI Original copy of this order has been signed by the Hon'ble Judge. Digitally signed by: RINKU MALI(HC01574), PRIVATE SECRETARY, at High Court of Gujarat on 29/07/2025 17:33:31