Appeal in high court

Querist : Anonymous (Querist) 27 February 2019 This query is : Resolved
We were having GWA order in Jan 2017 based on compromise pursis. Due to change of circumstances like change in school timing affecting visitation hours of child and many more thing we filed GWA 2nd time in Mar 2018 with Interim Application to modify visitation hours.

Our interim Application of GWA was dismissed by Family Court with heavy cost. We are planning to file Special Civil Application in High Court under Article 227:

Now my query is :

(1) Whether State will become party to this or not ?

[We approached several local lawyers but there is a difference of opinion on this. Some say in civil matter State will not become party. Some say since you have been charged with cost, State will become party to this.]

(2) Whether we can/should use Article 226 & 227 both ?

[What are pros and cons of using both ?]

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Suhail suhail (Expert) 27 February 2019
You can make the State as party only if you seek any relief from the state,or if you are aggrieved of any order or direction or else of state.If your case has nothing to do with the state how can you make the state as party.How come penalty of costs makes sate accountable? What kind of costs and why ? can you detail.

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Querist : Anonymous (Querist) 27 February 2019
Order states that as already there is one final decree passed by the Family court in year 2017 they can not act as appellate court. Though we argued tht since custody related order is always interlocutory and not final and also change of school timing was not known to us he took inference tht application is just to harass the wife. So 8k penalty out of 3k to wife.

Suhail suhail (Expert) 27 February 2019
But how you feel aggrieved of state ? there is no role of state in this case ,why you want to make state a party ? That will be misjoinder of proper and necessary party.
The court seems annoyed and slapped heavy costs.
If you feel that the order of cots is not justified,you can file appeal against that as the order under Section 35 A (costs for false or vexatious litigation) is appeal able

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Dr J C Vashista (Expert) 05 March 2019
State shall not be a party to the appeal against the order passed by Family Court.

Dr J C Vashista (Expert) 05 March 2019
No appeal shall lie under the provision of Article(s) 226 and/or Article 227 of the Constitution of India, 1950.

Dr J C Vashista (Expert) 05 March 2019
Pros and cons of an action is a subjective question to be solved/ advised by your tutor.

Dr J C Vashista (Expert) 05 March 2019
What is the purpose of remaining as an "anonymous" author, as the experts do not entertain such person, as per rule of this platform ?

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