Filing of fresh appliocaiton for domestic violence act
Guest
(Querist) 06 June 2016
This query is : Resolved
Dear sir,
My cousin who retired in august 2015 form active army servcie as a officer filed in delhi ahila court application to claim residence order u/s 19 along with interim order application u/s 23.
This is regarding her husbands flat who expired in 2005.
Due to servcie plaintiff was contiunuously posted out of town and could not stay there. Her hsband's brother family who moved temporarily there made it permaneent abode after husband death and does not allow her to enter.
They also later produced a will in their favor and got probate also ex party which was set aside. Now civil trial for probate is pending in a civil court in delhi filed by plaintiff to decalre will null and voide.
Menawhile she has retired and needs accomodaiton urgentlyand hence above DV act applicaiton u/s 19 with section23
Now what has ahppened is that application made by her state legal aid lawyer was criticised by magistrate not in order and hotchpotch and asked to make it proper and come back next date
The new lawyer appointed by plaintiff revised applicaiton making it concise and to the point while maintaining same grounds.and called it fresh petition.
But now magistrate is asking under which provision you have brought fresh application and has given last oppotunity to satisfy court.
In other words plaintiff is being trapped by court now
My question:
what arethe provisions under which an applicant can move fresh petition while old one is with court .In fact original applicaiton was complete in all respect and why magistrate at that time made oral remarks and threw the file no one knows.
Now after criticing orginal application she is questioning why fresh petition is submitted and if it is maintainable so last opportunity is given by magistrate.
Kindlty advise how this mess can be solved and under which provisions magistrate can allow it or should plainitff withdraw fresh one and ask to proceed on original only or withdraw original and request to proceed on fresh one. is this process allowed in law.
Can she quote some provision and ask to process fresh with old one in file and if yes under what provisos. of course in interest of justice higher courts can consider but these are magistrate level courts.
This is crucial point and i seek advise of senior advocates here for kind guidance as plaintiff has only one opportunity
RAVI K GOUD
(Expert) 08 June 2016
You did not mention the exact reason/latch on which the first application is returned or rejected.
Is the application returned on giving the time to resubmit the same?
What made you to file a fresh application when the first application is in existence in the court?
What are the exact comments of the Presiding Officer in the open court? AS far as my knowledge is concerned no P.O would comment in the open court when there is no mistake in the application or by the lawyer.
Without knowing the answers for the above it is not wise to advice or suggest.
Guest
(Querist) 08 June 2016
Thanks Goud sir. Now that is already happened. so we need solution.
When this application was filed under DV act for residence order along with section 23 interim relief, Form 1 Form 2 , PO report ( very good and favourbale) and affidaivts as per rule book were filed. The affidavit also mentioned groudns of petitioner.
But the lawyer provided by DLCdelhi govt made out a typicla civilcase plaint AND there is distorteft fact without udnerstanding facts given . so discrepancies arose. so judge said bring it back after setting your applciaiton right.
Meanhil my cousin hired private lawyer andhe also made out fresh applciaiton isntead of re arranging contents.
Now magistrate is using it to challenge him she wrote last order that
counsle for petitioner could not appraise the court about proviso under which fresh applciaiton is mobed. Solast opprtunity is given. That is very odd. It was her first hearign after resubmission. Buthas made last opportunity
My queryis can we press for continuing with origial appciaiton only as we dont see any material or filing defect. only some contents descrepaciesand improper arrangemnt of papers?
magistarte refused to even look at it and said court does not have time . it is not clear tome so rectify and bring. It was oral.Then she wrote order sheet that counsle for petitiner said he feels applciaiton is not made proper so theyare advsied to read law and file proper applciaiton . Now she says why you did it?Under what proviso.
I feel there is a proviso under order 6 rule 17 cpc for amending petitins till trial begins.
So what my cousin should do?
shoiulkd she withdraw new one? will court allowor simply dismiss case
cna she move applicaiton underorder 6/17 cpc to accpet revised appliocation.
or withdraw originak first and will court allow that?
I may also inform that there is neither anychange in memoof parties, nor facts, nor relief sought nor any documents.
It is merely petition draftin game goin on and 8 months wasted by court.
Kindly now advsie suitably.
regards
