Appropriate forum for filing an appeal
Deval
(Querist) 12 August 2013
This query is : Resolved
Sir,
My confusion is regarding the appropriate forum for filing an appeal against the order of dismissal, passed by the Court of Hon'ble Civil Judge (J.D.). As I'm getting diverse opinions from the people around for the same. And also I went through Order 43 Rule 1 of CPC. So , that has got me confused more. The details of the case are attached herewith.
Thank you.
prabhakar singh
(Expert) 12 August 2013
Nothing appears here attached.Nor shall you be able to do so as server here is very notorious.
Just tell what has been dismissed by CJ(JD),SUIT or INTERIM APPLICATION(I.A.)
if I.A. then what was it's prayer.?
prabhakar singh
(Expert) 12 August 2013
So far appropriate Forum is concerned,all appeals from his order or judgement would lie to the DiSTRICT JUDGE.
Deval
(Querist) 12 August 2013
Thank You Prabhakar Singh Sir. I think I tried to upload the file containing case details, but it seems it didn't work. Anyway, The SUIT has been dismissed. And I've tried to prepare list of events. Which is as under:
“Swami Shriji”
The suit is related to 'violation of easement rights of the plaintiff' and was filed for the amount of Rs. 300/-. The suit was filed in the Court of Hon'ble Civil Judge (J.D.) at Umreth. (Umreth is a taluka in Anand Dist. , Gujarat).
29/12/2000 :
• The suit was filed; main prayer being the defendant should not be permitted to proceed with the construction work of his house and should he do that the same structure be removed at his own expenses.
• Application seeking stay order was rendered.
• Panchnama of the place in dispute, was drawn.
01/01/2001:
• The court passed an interim order to maintain status quo.
08/01/2001:
• An application of 'contempt of court' was rendered, as the defendant continued with the construction work, despite the court had passed stay order.
• An application seeking appointment of a court commissioner to draw panchnama.
03/01/2007:
• The Plaintiff passed away.
26/02/2010:
• Issues were framed by the court.
28/06/2010:
• The Plaintiff was served with summons to appear in the court.
• An application was made for joining the legal heirs of deceased plaintiff as parties to the suit alongwith an application for 'condonation of delay'.
• (Reason for the delay mentioned by the lawyer of the plaintiff: the suit was kept for framing of issues )
15/04/2011:
• An application was made for joining the legal heirs of defendant as parties to the suit.
21/06/2013:
• The court rejected Plaintiff's application for condonation of delay in joining the legal heirs of the plaintiff as parties to the suit, as it found the aforementioned cause for the delay insufficient and dismissed the suit for the want of necessary parties to the suit.
Note: The Plaintiff received the certified copy of the aforementioned order on 19/07/2013.
So, which is the appropriate forum for filing an appeal against this order of dismissal?
High Court or The District Court.
Thank you, again.
prabhakar singh
(Expert) 12 August 2013
On given facts it transpires to me that due
to substitution application to bring LRs of plaintiff on record was not moved with in time,suit stood abated and subsequently moved application to condone delay under section 5 of limitation Act was rejected,so also the application for setting aside abatement and bringing Lrs on record stood rejected.
Then if you carefully look into order 41 rule 1"1. Appeal from orders.- An appeal shall lie from the following orders under the provisions of section 104, namely:(k) an order under rule 9 of Order XXII refusing to set aside the abatement or dismissal of a suit;"
NOW YOU CAN SAFELY CONCLUDE WITHOUT ANY HELP THAT APPEAL IS THE REMEDY AND THE FORUM IS THE DISTRICT JUDGE.
prabhakar singh
(Expert) 12 August 2013
But as stated by you"Note: The Plaintiff received the certified copy of the aforementioned order on 19/07/2013."
As on date appeal is also time barred as the limitation to file any appeal before the District Judge is only 30 days from the date of order appealed against(21/06/2013)from which days taken by court's copy section shall stand excluded.
Then by all standard of counting this appeal would also require application of condonation u/s 5 of the Limitation Act.
Deval
(Querist) 12 August 2013
Thank you, Prabhakar Singh Sir. Your reply has helped me get rid of confusion and now no shadow of doubt is left. So, I can proceed with filing of appeal.
prabhakar singh
(Expert) 12 August 2013
03/01/2007:
• The Plaintiff passed away.
26/02/2010:
• Issues were framed by the court.
• (Reason for the delay mentioned by the lawyer of the plaintiff: the suit was kept for framing of issues )
A POORLY DRAFTED DELAY CONDONATION APPLICATION.
Devajyoti Barman
(Expert) 12 August 2013
Take help of local senior advocate. Appeal is important proceeding and one should not ake chance at least at early stage of his/her career.
