Any 'Pro-Review' citations? to oppose Apeal-in-disguise plea
Jamai Of Law
(Querist) 25 December 2010
This query is : Open
I am in urgent need of supporting citations (Bom HC, SCC) which are pro towards 'application for Review of Ad-Interim Maint Order' at Family COurt.
Kindly offer suggestions.
The Scenario as follows:
Petitioner-wife although awarded int. maint vide interim Order for the 'sake of kid' and not for her vide sec 24 of HMA, had concealed material facts (which are avaiable as new disclosure which is glaring and can't be ignored. Wife is found to be saving double the money in FDs, than what is asked in maint., and came to court with unclean hands that she hasn't got enough money to support her as well as kid) This disclosure was unknown to husband
In the Order passed, there are self-evident 'errors which are apparent on the face of records, such as'
Court concluded that no evidence is adduced by Respondent-husband about a fact, but evidence was very much there on record and it was submitted at the time of WS filing.
Wife herself conceded about the 'existance' of the facts for which court was asking proofs to respondent, which respondent he couldn't gather (but didn't ask for more time).
'Sudden U-turns, travelling beyond the pleading, amendment to pleading' by Petitioner-wife 'on-the-fly' during argument , although dis-agreed by respondent. Court presumed and allowed the amendment to pleading, whithout assigning and ascertaining the burden-of-proofs to petitioner (which is a glaring 'procedural error' in FC, on the face of records). also This is not inference but it is self evident by reading the text of the order.
This caused 'erroneous' inferences subsequently by the court....but 'erroneous judgement is the outcome of the 'errors on the face of recorsd'
and counter plea 'appeal in disguise' can not leave the respondent remedyless
as respondent is 'NOT allowed for appeal' as this is interim order,
as respondent is allowed NOT allowed for Civil Revision at HC (videCPC 115, in the present context, only wife may go for Civ. Rev. Pet. at HC if the interim order results in finality of suit, but that is also not the case here.)
and Respondent is left with only remedy of EITHER Review at FC
OR Writ under 226 and 227 at HC
'errors on the face of records' has caused to occurance of judgement which the respondent finds it 'erroneous'.
And hence Respondent prefers to apply for review, not purely from the view that 'judgement is erroneours' but mainly from the perspectives of 'error on the face of record' as a primary reason, but feels entitled to get the 'judgement corrected' in the due process.
'Court of equity' prevails all the time along with 'court of law'. Respondent (at FC people not expected to be proficient in law) can't be made to run pillars to post, for conflicts of 'province of appelate court and original jurisdiction'.
If anyways if the review is to be ordered, then he be allowed to adduce the evidence which wasn't produced earlier, that doesn't mean amendment to pleading but supplication of incomplete evidence.
Error are liable to made by everyone, error and offence are different.
If judiciary has provisions to correct its own mistakes in records, then litigants in FC who are illiterate of law, are shown the rulebook about timely submission fo record?
litigants in FC, who are illiterate of law, also be benevolently condoned about their 'failure to adduce evidence in timely manner'
Respondent was expected the wife to come clean before court in financial matters which are trasparent due computerisation of banks etc, and on top of it she was expected not to take U-turns and sudden outbursts which in fact resulted in conceding to
Actually 'the correction of erroneous judgements occured due error on the face of records' is within the review jurisdiction .
How to counter/demolish a very likely and very anticipatory counterplea of 'appeal in disguise' from the opposite party?
Please advise and please refes of useful citations if any
If the FC rejects the 'Application for review'...does the respondent still have remedy available under Writ under 226 and 227 at HC afterwards?
If the FC allows the 'Application for review', ...........
but in review and rehearing of the same if the court retains or comes to the same conclusion as previous one (which is unlikey....raher it shud reject app for review........... process of allowing the review underlines summarily.............about the possibility of settig-aside the previous order, ..............unless opposite party also comes with statling new evidence to defend the order)...
does the respondent still have remedy available under Writ under 226 and 227 at HC afterwards?
Thanks for your expert suggestion, in advance
