Kept for order u/s 38 specific relief act
Mohammed Rizwan Shaikh
(Querist) 12 September 2019
This query is : Open
Hi,
A suit was filed to restrain the Defendants u/s 38 Specific Relief Act in a district court in June 2018 in respect to a land in Maharashtra. The Plaintiff's claim was based on a Muslim Gift-Deed from a husband (now deceased) to his wife. The Defendants (legal heirs) filed Counter Claim, all the contentions were false. The Plaintiff filed reply/ Written Statement. Further, the matter was kept for Arguments on Exhibits. The Plaintiff submitted the Exhibits. The Defendants did not submit their Exhibits.After a span of 15 months, the matter was heard on 11.09.2019. The Advocate of the Plaintiff argued but not upto the mark.in other words some points were skipped/ignored/incomplete/haywire although all the exhibits on which the Plaintiff relies are on the Courts record alongwith WS. The Plaintiff fails to understand what went wrong with the Advocate..The Magistrate has asked for ORIG. Gift-Deed and kept the matter for order on 30.09.2019.
Is there any way to fill the lacuna/gap created by the Advocate at the time of Arguments, before the Order?
As the argument was not upto the mark, will the Magistrate consider/refer to the WS?
As the Magistrate has asked to submit ORIG. Gift-Deed, should the Plaintiff submit it with a precipe before the Magistrate?
Will the ORIG. Gift-Deed be returned, as this is the only document on which the Plaintiff relies upon? How to safe-guard the same, plaintiff is skeptical?
What if the judgement goes in favor of the Defendants although the Plaintiff's case has all the merits? Can it be challenged in Aurangabad High Court?
Does Aurangabad High Court requires English Translation?
Your advice will definitely be very highly appreciated.
Mohammed R. Shaikh
Hemant Agarwal
(Expert) 12 September 2019
1. Oral Argument hardly has any merits and can be skipped totally, SUBJECT to "Written Arguments" submitted before close for order, by court. Further once matter is closed for order, an application can still be moved for additional documents /statement /argument, which MAY be entertained by the judge at his discretion.
2. ALL High Courts, require Revision /Appeal applications and documents ONLY in English, which must be done thru a certified and approved Translator.
Keep Smiling .... Hemant Agarwal
VISIT: www.chshelpforum.com
Dr J C Vashista
(Expert) 13 September 2019
What is your locus standi as the response shall change with party you are representing/ litigating?
What do you mean from the term used "argument on exhibits"?
It is advisable to show the case file to a local prudent lawyer for better appreciation of facts/ documents, guidance and proceeding.
R.K Nanda
(Expert) 13 September 2019
1. file original gift deed in court ,as directed by court.
2. yes, it can be returned afterwards by filing application in court.
3.order can be challenged in HC.
4.yes, HC need english translation of all pleadings and documents.
Mohammed Rizwan Shaikh
(Querist) 22 September 2019
Many thanks experts Hemant Sir, Vashista Sir and Nanda Sir,
@ Hemant Sir, In the Written Arguments filed, we have almost covered all the crucial points. I am just worried, will the Magistrate consider the Written Arguments or the Oral Arguments, as my lawyer missed several points and some went haywire, in spite of giving the list of points to be argued.
@ Vashista Sir, I am representing the Plaintiff in a Regular Civil Suit filed at Chalisgaon Civil cum Criminal Court. Arguments on EXHIBITS_Unready is a stage of Civil Suit Proceeding.As per your advice, I definitely seek a better local lawyers advice.
@ Nanda Sir, Can I submit the True Copy or get it certified by the Registrar or Magistrate and take back the Original Deed, I am worried the Orig.Document may be misplaced.
Sirs,
I have the video recording of the execution of the GIFT DEED, how can I prove it that its not tempered or edited. However, I have extracted the photographs from the video and submitted in the proceeding alongwith the certified copy of the Form 15 Notorial Register wherein the Donor, Donee and Witnesses signed on it.The essential conditions of the Muslim Gift Deed have been fulfilled i.e. Declaration of the DONOR, Acceptance by the DONEE and Delivery of Possession. I am in the Physical and Construction Possession. I have the ORIGINAL DEED thus I am in the Constructive Possession.
Secondly, the reason for filing the RCS u/s 38 was that the defendants were trying to encroach and show their illicit possession. Since June 2018, inspite of matter being in the court, there were several attempts made to encroach. I informed my Adv to keep it on the Magistrates record but he refrained and ignored for the best reasons known to him. My farmer was threatened by the defendants and they did some ploughing on the land. My advocate informed me that we should also do the ploughing. I raised a question if any riot/ fight takes place who should be held responsible. I informed my advocate that we have filed the case in the Court, what if the Magistrate questions us that why did we approach the illegal way inspite of matter being in the Court, he said nothing. I hope you understand.
May Almighty Lord bless you all experts.
Regards,
Mohammed R. Shaikh
Mohammed Rizwan Shaikh
(Querist) 29 September 2019
Experts, God-Forbid if the order goes against me, then where will I have to challenge it. Do I need to file revision appeal or Please advice.
Sankaranarayanan
(Expert) 05 December 2019
Well advised by learned friend Mr.R.K.Nada i do stand with him
Mohammed Rizwan Shaikh
(Querist) 28 October 2020
Many thanks for your reply all EXPERTS
@R. K. Nanda Sir, as per your guidance I had submitted the Original Gift Deed and was duly returned. Many many thanks.
Respected Sir's,
The Hon'ble Trial Court issued interim orders in my favor, restrained the Defendants from entering upon the land until final decision. The Defendants filed appeal under Order 43 rule 1 before the District Court, Jalgaon. Please note that the Trial Court has specifically recorded that no evidence was produced by the Defendants and Plaintiff's evidence are very strong. The Plaintiff is in Actual and Constructive possession since the execution of the Gift Deed. The case is still pending before the trial court, Is this APPEAL maintainable? I would certainly appreciate if you Experts help me with the citations of the higher courts with regards to the maintainability of the Appeal when the application/case is still pending in the trial Court. Please HELP
Mohammed Rizwan
