Case towards exparte- how to avoid? 4 days bt hearing

Dear, Yes better appoint someone who will represent you, your evidence at this stage not possible at all..... No court not consider this misleading rather if the could could understand your situation, they will come to know the lawyer ditched you last moment.... Kapil chandna adv, 9899011450

To allay your fears / apprehensions, I say that on 1st of December, the next date of hearing, your presence is not required.  But your advocate must present.  As you lost confidence in your earlier advocate, you should engage a good and dependable and hardworking advocate.  You should give him the entire file along with your fresh vakalatnama.  At the first instance, your new advocate will seek time to prepare for cross examination on the ground that he received the case only two days back and he could not prepare.  But, on the next date of hearing, if the judge feels something fishy and force your advocate to cross examine the PW 1, he must prepare for the cross examination.  Needless to say, that next date of case is for the purpose of cross examination of the wife, PW 1.  By the way, the cursory query you put above, it appears you are not averse about divorce, but your limited objection is that the ground she had taken in divorce case, i.e., mental cruelty.  If that is so, you properly instruct your advocate so that your advocate will obliquely put before the court that the husband has no objection about divorce, and a proposal for mutual can be put forth there and then, and the judge will ask the wife to think about it and gives some other date.  The monetary aspects about MCD can be discussed at a later stage.  I wonder, whether mediation was held in your case or not at the initial stage before the case moved further to this stage?

@Mr. Kapil Chandna,

Thanks for the input.

@ Adv. Chandrashekar,

Thanks a lot. You read my mind. I am not averse to divorce, only for the ground mentioned. We tried to reach the other party through phone, e-mails or some common friends but they are not responding. Only abuses. No mediation or any talks happened so far. They filed the petition and I filed the counter that is all happened and all of sudden I am in this stage. That too the hearing dates are too close. As mentioned earlier I was surprised when jan 2015 case got preponed to November.

Just a follow up question, If I find a new lawyer and if he mess up during the cross examination because of unpreparedness in the short duration, What could be the possible outcome?

1. Will the case be given judgement right there ?Will the case be given exparte?
2. Will I be given a chance later to provide my evidence?

Thanks,

Ramesh.

No. It is not like that.  You engage a fresh advocate by giving fresh advocate and also an application disengaging your earlier advocate.  Next, on the next date of hearing, your counsel will go with two specific prayers along with full preparation for cross examination.  first, he seeks adjournment on the ground he was fresh appointed and he had to go through the file.  If his request will be turned down, then he will  inform the court that you are ready for divorce on mutual consent but not on the ground of mental cruelty alleged by wife.  He seeks time for discussion for mutual consent.  The judge generally give time.  If the judge refuses that also, then your advocate shall point out that no mediation happened in this case and it is mandatory in matrimonial cases for mediation.  Send the case for mediation.  But in mediation your presence is very much required.  If that attempt also fails, your advocate shall start to cross examine her.  If he will botch up cross examintion, there will be repercussions on the outcomeof the case.  But why should you presume that your new advocate botch up the cross?  After that, court will ask her if she wants to bring any further evidence?  If she says no, then you will be asked to file affidavit and appear for cross examination to prove your point.  Lastly final arguments and judgment.  So, there is so much still to go.

@ Adv. Chandrasekhar,

Thanks a lot for the clarifications and valid suggestions. You mentioned that a application needs to filed disengaging the earlier advocate? is there a specific format or should I just state that in a notarized document and send it to court?  can my new advocate file that while he files his vaklatnama? Like I mentioned , I live in US and time and travel is a constraint. I am not sure if the earlier lawyer would provide the case files quickly if he was told his service is no longer needed. The main challenge is to find a new lawyer in a short notice.

Thanks again for your inputs.

Thanks.

You queries and subsequent doubts also were very properly addressed and correctly answered by learned Adv.Mr. Chandrasekar.  I fully endorse the same.  There is nothing that your case has to be handled by that particular advocate only, you can change your lawyer if you don't have faith in him/her. You may ask him/her to endorse NOC in the vakalat to be given to new lawyer, if he declines, you can move an application before the court stating the facts that you would like to engage a new lawyer in the place of the old one even without citing any reasons for your such move.  While you are in US, your signature in the vakalat is to be attested by a local Notary in that place or by an higher official of the Indian embassy.  Rest other procedures to be followed have been very elaborately narrated by my learned friend Mr. Chandrasekarji.  Nothing more to add to his views.

@ Mr. Kalaiselvan,

Thanks for the inputs. Is the NOC endorsement should be a document or a SMS or an e-mail would suffice? The reason I am asking this questions  is that, the lawyer and my parents live atleast 200 kms apart and its highly unlikely if this can be done in couple of days because of the short duration between hearing dates.

Thanks.

Generally a lawyer will endorse NOC on the backside of the vakalatnama form but owing to certain circumstances, he may give his NOC in his letter pad too, but certainly not through sms or email.