Ex parte for not appearing personally for mediation/framing of issues.
Rahul Bhatia Advocate
(Querist) 10 May 2017
This query is : Resolved
Good evening experts:
I am a lawyer defending one of the respondents (husband) in a proceeding for divorce filed against him before the Family Court by his wife. The application of my client to seek the leave of the court to engage me as his lawyer was allowed by the family court. Thereafter, the respondent appeared personally with me and we filed the written statement and also the reply to the interim application for child custody under Section 26 HMA. The court then posted the matter to the next date for mediation and framing of issues. The respondent then did not appear on the next date which was fixed for mediation/framing of issues, but I appeared for the respondent in the court, which is reflected in the order. The order specifically mentions that the counsel for the respondent is present before it. However, the court has proceeded ex parte against my client, stating that due to his non-appearance the mediation could not be conducted and thus there is delay in the disposal of the case. According to me such an order is palpably erroneous, which should be assailed under Article 227 of COI. Can the respondent be proceeded against ex parte if he does not appear for mediation/framing of issues, but his lawyer is present before the court? I would like to know the views of my ld.colleagues on this forum.
Thanks in anticipation
Rahul Bhatia Advocate
(Querist) 10 May 2017
Below is the order of the court
''
Present:
Petitioner with her counsel.
Mr.Rahul Bhatia, Advocate for the respondent
Vide previous order the respondent was directed to remain personally present before this court for mediation and framing of issues. However, the respondent has not appeared. Due to the absence of the respondent the mediation cannot be conducted today, which is causing delay to the disposal of the case. Hence, I proceed ex parte against the respondent. Now to come up for ex parte evidence of the petitioner on ......."
Kiran Kumar
(Expert) 11 May 2017
the order is worth to be challenged...apparently passed in haste...
Rajendra K Goyal
(Expert) 11 May 2017
Generally court give a chance before proceeding ex-party when lawyer is present. This has not happened.
Challenge the orders.
Kumar Doab
(Expert) 11 May 2017
You can benefit from the advice of experts.
Guest
(Expert) 13 May 2017
What exactly do you intend to convey by COI?
Guest
(Expert) 13 May 2017
Agree with Experts
Rahul Bhatia Advocate
(Querist) 13 May 2017
Thank you ld.colleagues for sharing your opinion. I am of the opinion that mediation is not performance of a judicial function, so for non-appearance at mediation the court cannot take away the right to contest the petition. Would like the experts to share their views on this as the illegal practices of judges have to be curbed.
I know it is basic law that neither plaintiff nor defendant's presence is required for framing of issues, but is there any judgment that anybody is aware of on this. It will be of great help. Thanks again.
Guest
(Expert) 13 May 2017
The Supreme Court of India had Directed all Family Courts in view of Section 9 of Family Court Act to make all possible efforts to settle all matrimonial disputes thro the Process of Mediation Please.
Guest
(Expert) 13 May 2017
The Decisions you reach in Mediation aren't Legally binding on their Own and only with the Consent of both the Parties.
Guest
(Expert) 13 May 2017
If the Parties are not ready for any Compromise it would be better for them to attend the Mediation and confirm their Decision there.It would avoid the delay in legal Proceedings
Guest
(Expert) 13 May 2017
Family Courts in India treats the family disputes with Humanity and their only intention is to seek the Possibilities of getting them United.
Guest
(Expert) 13 May 2017
Better you correct your 4 th line in the First Last Post of yours and it is defamatory Please.
Guest
(Expert) 13 May 2017
Mr. Rahul Bhatia,
Thanks for clarification. The shortcut/ abbreviation you applied is popularly known for the term "Court of Inquiry" (COI) under the Military Act and Rules, not for the Constitution of India.
By the way, are you really a practicing lawyer, as you claimed, or a student of some law college? In fact, your problem reveals artificiality much more, rather than a problem!
Even if you are a lawyer and fighting the case in reality, I wonder, in what way you have linked a divorce case with Article 227 of the constitution of India providing for the power of High Court for superintendence over all courts and tribunals?
A question arises, how the HC comes in to picture at the very initial stage of a divorce case in the lower court?
More so, when the case is at the very preliminary stage of mediation and framing, which practice of judges you have treated as illegal and on what ground do you want to assail that practice?
Another question arises, can the instance of your single case be treated as a practice of judges being adopted in general for one and all such cases and on which specific ground?
Further, would you like to suggest, how do you propose to curb such practice.
If you speak about the ex-parte decision of the family court, where is the question of assailing the decision of the court, when you have failed in discharging your own duty to get exemption of the court for your client to appear in person?
From all the angles, your problem seems to a hypothetical one.
Guest
(Expert) 13 May 2017
Mr.Rahul Bhatia Commenting about Honorable Judges is Strictly Condemned and Strictly not to be encouraged here.Remember this is Lawyers Forum.
Rahul Bhatia Advocate
(Querist) 14 May 2017
@Mr.Rajkumar
There is nothing defamatory in it. I have simply called a spade a spade. I am not as ass licker of the judges. I won't delete it, albeit nothing stops the administrator from removing it.
Guest
(Expert) 14 May 2017
Mr.Rahul Bhatia Very Good.If you are So bold,Courageous , Strong and Confident Why dont you Post your Profile with Genuine address and contact details instead of being an Anonymous.If at all you are Genuine Post your Contact details Here Mr.Anonymous.Instead of mentioning to any one here it could be handled if you Post your genuine address Please
Rahul Bhatia Advocate
(Querist) 14 May 2017
@Mr.Dhingra:
If you did not know the facts then you could have asked me, but the assumptions made by you are unfortunate and rather laughable which do not behove a lawyer with your standing at the bar. Firstly, the case is not at an initial stage. The written statement has been filed and the reply to the application for interim custody has been filed. Be that as it may, as any law student will tell you, a perverse order even if passed by the civil court at an initial stage can be assailed under Art.227 before the jurisdictional High Court if there is no remedy of an appeal or revision.
In my state it is indeed a practice of Family Courts to proceed ex parte against the respondent if he does not appear for mediation despite the presence of his counsel, albeit it may not be happening in other parts of the country.
Your goodself also, despite the inherent disability of factual ignorance of my case suffered by you, declared me guilty of failure to perform my professional duty, by doing which you have added another feather in your cap of preposterous assumptions. Had you read the English translation of the order that I extracted you would have realised that the counsel was present before the court at the time of framing of issues. Where is then the question of moving an application for exemption? Do you move an exemption application for the defendant/plaintiff at the time of framing of issues? With all deference to you Sir, the manner in which you have made assumptions coupled with your views on the jurisdiction of the HC vis-a-vis my case, implores me to ask you a question, "Are you really a practising lawyer or just a student studying in some law college?"
I came here hoping that I would get to read a wide array of views of eminent experts (if there was anybody whose reply I was eagerly awaiting it was you Dhingra Sir) but the uncharitable personal comments made by you have taught me a lesson of lifetime.
Goodbye and thanks to ld.colleagues who took time to answer!
Rahul Bhatia Advocate
(Querist) 14 May 2017
@Rajkumar alias Narsimha:
What do you require my contact details for? I have mentioned my real name. How is my profile anonymous? You must grab a lexicon to re-read the meaning of ''ANONYMOUS". Anyways, I would not like to waste my further time replying to you. So wish you good luck in finding my contact details, and once you do find them, feel free to do what you may have conceived which you may feel handicapped to do without it.
Guest
(Expert) 14 May 2017
Anonymous means No Identity .You have No Identity and Posted your Profile as I will update Later.So you are an Anonymous.Avoidance of Mr while addressing exposes you are uncomfortable and Mentally Disturbed Please. Just go on.
Guest
(Expert) 14 May 2017
No Comments in this Forum should be encouraged about Honorable Judges Please.
Rahul Bhatia Advocate
(Querist) 14 May 2017
I just saw your profile. With your poor and laughable English it is an unjust expectation of you on my part that you will be able to understand the meaning of a word from dictionary. You are just a busybody who seems to be in the habit of finding out contact details of people to harass them with your seemingly nefarious design. Certain advocates like you have no work, so they file defamation cases and contempt petitions to extort money. Now go and find out my contact details that you want so desperately, kid.
Guest
(Expert) 14 May 2017
Your Irritation is Well Appreciated.Just Go On.
Guest
(Expert) 14 May 2017
Rajasthan's Phalodi Sizzles at 51 degree C highest ever temperature in the Country.
Rahul Bhatia Advocate
(Querist) 14 May 2017
Now I understand why Tamil Nadu lawyers get beaten black and blue by police inside High Court Campus. There is a saying in Hindi "Jaisa muh waisa thapad" i.e "You get the slap which your face deserves".
Guest
(Expert) 14 May 2017
Having Some Butter Milk would be helpful in Summer that too in Rajasthan where the today's temperature is 51 degree C.
Kumar Doab
(Expert) 14 May 2017
LCI is not Lawyer’s Forum.
This and Anonymous; is recently also discussed at:
http://www.lawyersclubindia.com/experts/Merging-of-two-flats-640076.asp
No more deliberations on it.
Kumar Doab
(Expert) 14 May 2017
Your comments:
"@Mr.Dhingra:
If you did not know the facts then you could have asked me, but the assumptions made by you are unfortunate and rather laughable which do not behove a lawyer with your standing at the bar. "
For some of this portion only:
From which source you have picked up 'standing at the bar'?
Kumar Doab
(Expert) 14 May 2017
@PSD: It is not a lawyer. It has no standing at bar, leave apart some assumed big standing.It’s claims of being some Chief Lawyer are not true. Nothing else.
Kumar Doab
(Expert) 14 May 2017
The firms that it: @PSD: advertises at LCI; are not Law Firms.
Kumar Doab
(Expert) 14 May 2017
The query was addressed in earlier posts.
It has unnecessary been stretched further.
Kumar Doab
(Expert) 14 May 2017
Prior to you, other young lawyers, querist/authors, even members and fellow experts that enjoy discussions and post illustrated responses, citations are attacked with sarcastic, stalking, abusive posts....................and on the forefront is; @PSD.
Another recent one happening is:
Mr. Adwait Bhonde
http://www.lawyersclubindia.com/profile.asp?member_id=191004
http://www.lawyersclubindia.com/experts/Father-died-interstate--640296.asp
http://www.lawyersclubindia.com/experts/Quashing-of-fir-640466.asp
http://www.lawyersclubindia.com/experts/Ni-Act--640416.asp
Kumar Doab
(Expert) 14 May 2017
Another recent one happening is:
and it is repeated with a very senior and aged and gentle member Mr. G.L.N.Prasad.
http://www.lawyersclubindia.com/forum/Axis-bank-wants-original-fd-receipts--149702.asp
Kumar Doab
(Expert) 14 May 2017
One of the trade mark abuses of @PSD is that by adding Shri, Shrimati, Mahodya, Zenab, Mohtarma one becomes TOUT ( Dalaal,Dalla Bhadwaa) of each other.
It: @PSD, does not post by which of its tribal customs, genes, ruling it happens and in which book it; @PSD has published It’s research?
And this book and research is accepted in Republic of India?
Kumar Doab
(Expert) 14 May 2017
It: @PSD has ridiculed, attacked, contempted, O/o Chief Justice of India, Chief Justice, Apex court of Republic of India.....................at the platform of LCI.
It: @PSD has also declared by adding Mr. to name of a Judge is contempt.
It: @PSD, does not post by which of its tribal customs, genes, ruling it happens and in which book it; @PSD has published It’s research?
And this book and research is accepted in Republic of India?
