Suhas (Not Working) 24 February 2012

'prayer not tenable and hence rejected' what it means?

Good morning...

Can any expert kndly explain the meaning and significance of the following judgment by addl dist / family court (or whatever the designnations there. its confusing)?

Applicant-husband/father submitted the application (1 page)

It contained complaints as 'There are mistakes in roznama. Kindly either correct or reject roznama. Applicant is shown absent on two hearings wrongly. He was present.'

It also contained complaint as 'Court is just sitting IDLE on the applicant's application as 'filed' by avoiding to take any futher stages like 'other side to say' and hearing and judgment etc. Application is for 'take kids (2 boys, school going) to vacation trip after exams, as visitation proceedings also pending'.

Court gave following judgment on above 1 paged application within 40 seconds!!!!

Judgment:-- "Prayer not tenable and hence application is liable to be rejected'

Thats all (copy wasn't given to opponent lawyer. there is mention of 'other side to say'.)

I have read that 'Court judgement is supposed to mention the reasons for decision.'

Also above judgment is written on the left margin of the Application

Xerox copy which meant for the opponent was returned back to the applicant.

Confusion is that:

Question:- Does rejection also mean that 'it is dismissed for lack of merits?'.

Question:- Is above judgment appealable?

Question:- Why a new application may not be valid if applicant files the same above in HC now? Does that mean now it is res judicat (issue already decided)? Does that mean that now only appeal is valid?

Question:- Does that mean that now the applicant is legally not allowed to file a fresh application (in very soft words offcourse) in HC?

Please advise.

Even boys want to enjoy the vacation trip. But if court doesn't move and just sits on pile of Apps how is it possible?

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12 Replies

Suhas (Not Working) 24 February 2012

Correction: there is NO mention of 'other side to say' on applicationand and it is rejected within a minute.

Suhas (Not Working) 25 February 2012

Experts .... Please advise ....

How and where to challenge above rejection order?

Can Applicant-husband/father refile application? or only writ/appeal would be correct?

V R SHROFF (Sr. ADVOCATE Bombay High Court Mob: 9892432152) 25 February 2012

"Prayer not tenable and hence application is liable to be rejected'

Unless you give details, a copy of Application , how can it be explained??

Was it drafted by Advocate??

Which Court, When?

Under what provision/ Act was it applied??

Suhas (Not Working) 25 February 2012

Details:

It is a matrimonial suit in Family Court - addl dist Court.

Husband asking for RCR and Wife asking for Divorce. Kids in custody of wife.

Child Visitation rights proceddings also pending.

Husband filed above application on his own (He has no lawyer). Application is vide sec. 151, 152,153 of CPC

1. Husband is shown absent in roznama although on that date he personally filed reply/objection to wife's application that is recorded but husband is shown absent. (This mistakes is happened twice.)

2. Husband made an application, vide sec 151 of coc, for 'notice to produce document - wife's form-16 and tax return'. court is not making any action on it. Wife is saying unless 'court passes an order it is not binding on her to produce document' and court is sitting IDLE on the same application then there is no way to get it adjudicated.

Hence husband filed application (1 paged) to do above two as sec 151, 152,153 of CPC as 'non conformance as above' is abuse of process. and mistakes has to be corrected vide 152 if it is evident from records that there is clear inconsistency.

But court made order immediately within 40 seconds on this 1 paged application as mentioned above.

I hope I have given sufficient details.

Kindly advise wrt my questions. Thanks

Suhas (Not Working) 25 February 2012

Please treat this as a genuine query

There is no moot shoot here.

This is a query from husband who has got pissed off from this rotten system of law.

He wants his with him during vacation (within a month or two) and wife is deliberately spoiling it.

Kid told father on email that 'mom said that judge would get angry on me (kid) if I insist to go for vacation to dad'

Husband has already made plans of kids vacations camps and tours and kids are waiting for all that like scuba diving etc in India.

Wife is just harrasing just for the sake of it.

DEFENSE ADVOCATE.-firmaction@g (POWER OF DEFENSE IS IMMENSE ) 25 February 2012

certain court procdures are best known to advocates and everything is not mentioned in law.

V R SHROFF (Sr. ADVOCATE Bombay High Court Mob: 9892432152) 25 February 2012

Suhas, you did not send me COPY of Application

Other appli for cpc 152/153 are not going to affect merit. Those are inor lapse. , can be taken care ofm, at arguement stage, or in Evidence.

It proves, your wife is influential in Cort, and you are helpless, as no Advocate.

You must Engage Advocate , it very important.

Suhas (Not Working) 25 February 2012

This is Suhas again....

This is not a moot case but a real life scenario.

Let me first furnish to the counter questions queries asked by Experts Deepak Nair, and V R shroff as follows, as follows:-

First about contents of 1 page application (vide Sec 151, 152, 153 of CPC)::--

1. Husband is shown absent in roznama although on that date he personally filed reply/objection to wife's application that is recorded but husband is shown absent. (This mistakes is happened twice.)

2. "Husband had made an application", vide sec 151 and Order 11, 12 etc of CPC, for 'notice to produce document - wife's form-16 and tax return'. "But court is not taking any action on it". Wife is saying unless 'court passes an order it is not binding on her to produce document' and court is sitting IDLE on the same application then there is no way to get it adjudicated.

About Drafting:-

Husband on his own drafted it. It is drafted nicely and politely worded.

Issue is trivial but affecting dearly to case.

Case status:-

Pending.-------Everything is pending!!!

1.visitation plea-pending (1.5 years)

2.Rescind/modify interim maintenance-pending (change of circumstances)----(Wife became Sr. mgr in a Co. and got promotion & salary rise just 1 day before maintenance order... and within 4.5 months after that Husband had 'incurred losses to business and injury to body' due to accident while fabrication and erection of cooling twoer and collapse of roof) hence further applications.

3.Execution of maintenance (S. 24 as well as 26 of HMA)-pending

4.plea of 'stay of execution interim maintenance'-pending

5.plea to struck out pleading of husband- NOW pending since 1 month (most recent app)

Whole above pending since 14-15 months or so roughtly

So husband stopped paying since last 4 months.

Answer to Deepak Nair's expectations of respect:

Respect is to be earned and can't be demanded.

Other's have to say that 'XYZ is very noble and respectable. One can't self procalim to be noble'

Let other's candidly express their respect and gratitude. Let at least a single litigant express candidly that 'judiciary is respectable institution'.

Do doctors themselves call a noble profession? No...it more or less non-doctors and common man says so!!!! (This trend is also going to change and probably doctors are taking inspirations from lawyers!!!)

Let's come back to question:-

Aren't the above error correctable by the court itself?

Is it not 'injustice' to make someone go to HC JUST TO GET the errors in roznama corrected? (Then what respect are we talking about?)

Well , if HC does not make it accountable for its subordinates then .... yes HC is meant for every minor error in case!!!!

V R SHROFF (Sr. ADVOCATE Bombay High Court Mob: 9892432152) 26 February 2012

Suhas, you did not send me COPY of Application

Damayanti (Unemployed) 26 February 2012

I also want to know what is the difference between rejection and dismissal.

Is it related to rejection of plaint O7 of CPC?

I am not sure but It is a non speakiing order.

Ms or Mr suhas, whether you are the application maker or not?, better check why it got rejected.

You/applicant have right to refile it by doing corrections and better mind the language in it.

MOST IMPORTANT.

Even a stranger like me found it funny.

Also DO check whether correct jurisdiction or not.

By now at least applicant should have known the correct designation of judge before whom one is appearing. This is a sheer common sense!!!

Get complete info from applicant at least before posting queries.

As per my knowledge, and specifically to state of MH, If there is Family court in metro then is is a designation equivant to district judge but not a district as FC Act. And appeal lies in High court

In other districts, the original suit is filed at civil judge, senior division. And appeal lies in district court/Addl district Court. (I am quite sure about dist of satara in MH state) Which state are you from?

You mentioned addl district court, are you or applicant(whoever concerned) in appellate court or trial court?

First clarify all these above things clear to us!!!!!

And finally the scenario sounds that applicant has made up a case and using only delay tricks to avoid paying maintenance.