Technical issues pertaining to court procedures
Kuummaar AS
(Querist) 10 March 2013
This query is : Resolved
A suit was filed about a fortnight ago where the Hon. Judge has questioned maintainability of the case. Some clarifications were given but it appears that the Hon. judge is not satisfied and time was sought for providing more clarifications. Notice to opposite party has not been issued so far.
Now it is proposed to withdraw the case to re-file the same with proper legal advise.
Taking into circumstances under which case is proposed to be withdrawn, experts may advise:
i) what reasons should be given to the court to avoid any adverse comment from the court in the withdrawal order as on the last date of hearing an adjournment was sought on the plea of providing more clarifications to the court with respect to maintainability of the case, which is being questioned by the court.
ii) Is it advisable to file written application for withdrawal, when advocate is not able to appear on the day of withdrawal.
iii) As advocate, who sought adjournment is not available, will court accept new advocate for withdrawal in the circumstances that earlier advocate sought adjournment on the plea of providing more clarifications regarding maintability.
Specialists may help please.
V R SHROFF
(Expert) 10 March 2013
Why don't you amend your plaint??
If apply to withdraw, take leave of the court to file new suit, after necessary correction.
As no facts given, cannot assume more remedies.
Kuummaar AS
(Querist) 10 March 2013
Above are the actual facts. Please tell what more facts are required. The case is at a very preliminary stage where maintainability issue is being examined by the court. No notice to the opposite party has yet been issued. Amendment requires sound legal advise, which may take some time. As such it is proposed to take back the case for the time being without any adverse comment from the court. As such, suggestions are sought with respect to the following:
i) what reasons should be given to the court to avoid any adverse comment from the court in the withdrawal order as on the last date of hearing an adjournment was sought on the plea of providing more clarifications to the court with respect to maintainability of the case, which is being questioned by the court.
ii) Is it advisable to file written application for withdrawal, when advocate is not able to appear on the day of withdrawal.
iii) As advocate, who sought adjournment is not available, will court accept new advocate for withdrawal in the circumstances that earlier advocate sought adjournment on the plea of providing more clarifications regarding maintability.
Help is kindly sought in regard to above points.
Devajyoti Barman
(Expert) 10 March 2013
Yes , it is always better to amend the plaint to fill up the lacunae. If the court does not give liberty to file afresh on the same cause of action, you would be stranded in nowhere
Kuummaar AS
(Querist) 10 March 2013
Can't we withdraw with liberty to file afresh on the ground that some more legal points are to be examined.
V R SHROFF
(Expert) 10 March 2013
Why don't you amend your plaint??
Kuummaar AS
(Querist) 10 March 2013
In fact amendments can be suggested by an expert and we are on the look out. In the mean time our advocate due to some problem is unable to continue. Next date of hearing is on Monday. What do we do?
Devajyoti Barman
(Expert) 10 March 2013
engage a new advocate and get the thing done.
It is not so difficult.
Kuummaar AS
(Querist) 10 March 2013
Thanks and grateful to all.
Sudhir Kumar, Advocate
(Expert) 10 March 2013
It is the advocate who has seen all the papers, who could be ib best position to guide.
Kuummaar AS
(Querist) 10 March 2013
But advocate is not available and date of next hearing is on Monday. However, facts have been mentioned above. I am thankful for general replies.
I have not got replies to my specific queries so far.
Raj Kumar Makkad
(Expert) 10 March 2013
The plaintiff is master of his case. He need not to tell clear reasons for the withdrawal of the pending case and file afresh rather he may withdraw on technical reasons clearly stating it in his statement and should seek permission to file afresh in the same statement. New lawyer can very well do as desired even though earlier lawyer had sought adjournment for submitting on maintainability.
Why not to invoke the provision of amendment of the suit?
Kuummaar AS
(Querist) 10 March 2013
Thanks very much Respected Shri Makkad. Can technical reasons for withdrawal with liberty to file fresh be that some more legal points are to be examined.
Raj Kumar Makkad
(Expert) 10 March 2013
You may mention but it shall be good if you do not disclose those reasons for safer side because there may be many changes while drafting the suit.
