You have raised several important questions. So, let us try to understand one by one. This forum has a very bad members who will decide the merits of the response on the basis of gender bias. So, while answering, I will not consider that whether you are husband or wife, as the questions required to be answered are purely legal.
1. Before she moved the S.C. for transfer, if she appeared in the trial court and availed all the opportunities available to her, like filing written statement etc. till the cross examination of husband, then she cannot agitate about starting the case afresh. If she was inconvenienced due to the first filing court (transferror trial court) in attending or effectively representing herself, and for this reason only she went all the way to S.C., then she has a reason to start the case afresh, as she failed to effectively represent herself due to the place of transferred trial court.
2. Framing of issues is purely judicial action, in which parties/their counsel assist the court to frame the correct issues on the basis of the pleadings. If the court failed to frame very important issue which required to be adjudicated to arrive at the truth and final determination, the court at the request of the contesting party, can frame additional issue even at later stage. You can object such an act on the sole ground that detrmination of such issue is not relevant and not required while giving the relief to the petitioner. If the court does not accept your argument, then you have to seek to file additional affidavit to bring the facts on record relating that particular issue.
3. Seeking to frame additional issue is different to ask the permission to amend the pleadings. As per your querry, she has not asked for latter.
4. Raising the jurisdictional question does not arise if she is challenging the jurisdiction of the transferree court, as she sought the same from S.C. If she is questioning the transferor court jurisdiction, two things arise. As this question is purely legal question, without pleadings, she can straight away argue on this issue at the final argument. For that neither pleadings nor framed issue is required. If she is raising the question about the transferor court jurisdiction, then you should ask the court to decide the question at the first instance, as it is for your benefit also. If the court confers such jurisdiction, the proceedings held before that court till the transfer, become valid. If transferor court does not have jurisdiction, then the proceedings will fail and it is better and expeditious also, in that case to start the matter afresh. If after evidence will be taken and after final argument in the case, the court comes to the decision that transferee court does not have jurisdiction, then the edifice of the case vanishes and entire case has to be started afresh.
5. O.23(3) Shall be disposed off at the first instance as per the procedure.
LAST REPLY.
