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(Guest)

Remedy for not deciding HC directed issue first

Backdrop of the que: There is a pending divorce suit between parties.

1. From the pleadings ofparties 2 issues were framed concerning "mental cruelty" and desertion"
2.  Meanwhile HC gave direction to lower court to first decide "jurisdiction" issue than take up any other issues of parties.
3. As directed the trial court framed the third issue on "jurisdicion" and asked parties to lead evidences.
4. Meanwhile instead of deciding "jurisdiction" issue first trail court started favoring one party and forcing other party to "settlement"
5. The other party has refused ofr settlement yet trrail court is directing other party to come on next date with settlement etc. This has happened twice post HC direction.

Que now is:
1. Is trial court right in "settlement" approach on record (mention is by way of direction in daily order sheets) ?
2. Should not the "jurisdiction" issue should be decided before even "settlement" is even taken up?
3. Even if party agree for settlement" will the final decree not challengeable by either party as "jurisdiction" to try out any issues by trial court was never decided?
4. The "settlement" is not an issue I am aware of but it leads to "willfully compromising" on main issue of "jurisdiction" is the primary inference here.

Kindly advise what remedy the agrieved party has in the backdrop of above proceedings of trial court.
 



Learning

 4 Replies

Kiran Kumar (Lawyer)     11 April 2010

better file a transfer application, HC will itself come hard upon the trial court judge.


(Guest)

Sh. Prabhakar ji and Sh. Kiran ji,

Thank you to both of you. This is really interesting scenario;

First reply to Sh Prabhakar ji views-
It is purely a "settlement" mentioned wording wise in Order Sheet. I am fully aware of effects of S. 23 (2) HMA However this case is going on from 2006 and previously on record it is shown that "reconcilation" efforts failed. Further previously on record even the "mutual consent" divorce also failed between parties.

However, you are absolutely right on referring this to HC point wise and now kindly read reply being given to Sh. Kiran ji as coly. replies to both of your kind self on both of your last suggestion para.

Second reply to Sh. Kiran ji,
It will interest both of you now to know that I filed before Delhi HC using S. 24 CPC for transfer of court on "jurisdiction" grounds only and based on my avernments, Delhi HC directed trial court to "first decide jurisdiction issues" then decide any other issues of the parties thus the abov. que. was against that back drop itself which is replied by both of you which I understood. 

Now I think I can't approach Delhi HC again on S. 24 CPC grounds means can I file once again S. 24 CPC before Delhi HC when Delhi HC itself once gave direction to lower court to decide "jurisdiction issue first"

I think I need to file Contempt (Civil) of Court Order of Delhi HC in instance situation but I don't have format / draft of such contempt plaint for Delhi High Court level ! 

I know how to file contempt (civil) of court order in lower court and have filed them several times. Could readers of this reply mail help me with High Court level Contempt (Civil) of Court Order draft / format copy please? I am pleading in person till date thus this request.

Once gaain thank you both to throw expert views on my main questions.
Rgds

Kiran Kumar (Lawyer)     11 April 2010

i intended to say that the transfer of the case from one judge to another judge in the same court so that he can comply with the orders passed by the High Court.

 

contempt is also a good remedy.


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