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Damayanti (Unemployed)     08 April 2011

Simultaneous remedies under Art 226, 227, CPC - Appeal/Rev?

Isn't it true that There can be joinder of cause of action, joinder of legal provisions/sections etc in the same petition.

 

E.g. Plaintiff asking for matrimonial relief under 'cruelty as well as desertion' as a ground,

OR asking for prohibitary injunction under O39 as well as sec 151 etc.

 

 

If a petition looks a fitting case to file at HC, in regards to trial court Order,  under ALL following provisions as :-

  1. Revision under 115 by HC
  2. Appeal lies at HC
  3. There is such an Instance which invite art 226 judicial review by HC
  4. There is such an Instance  which invite art 227 power of superintendance by HC

 

Is it allowed to file such a kind of application?, mentioning all the above provisions, if it fits into all above provisions with appropriate material on the case?

 

............. Why the above query? (Query may look weird, but Decree Holder is frustrated due to following)

 

Decree holder's writ petition is got dismissed as :-  "the writ petition is not maintainable and it is open to the petitioner to file an appeal or revision" against the assailed Order.

 

 

But in the above exercise, the decree holder has lost a lot of time (DH could file the revision as per 115, but was advised to go for writ instead 'civil revision under Art. 227')

 

Now, DH has already missed the 90 days deadline for revision 115 !!

 

Merely 'omission to include' all the above 4 cateries in the applcation is making DH to do all the things again!!  So, why not mention all provisions at the outset, so that application is heard at least under one or the other provision (if Application is not maintanable as 'writ' then please hear it as 'revision application' under Sec 115 !!! )

 

This is frustrating. DH holder could not do anything but to watch the proceedings and difficult to question the lawyer also!!!

 

Now, the contents of DH's new application will be the same!  Except it will say 'Revision Petition under 115' and not 'under Art 227' like before.

 

If above explanation given for dimissal was correct, then how the writs which mention both 226 and 227 are allowed? (It is said that Art 227 is appellate jurisdiction and art 226 is original juriisdiction) 

 



Learning

 4 Replies

Damayanti (Unemployed)     08 April 2011

Application wasn't dismissed, but application was rejected.

 

Tajobsindia (Senior Partner )     08 April 2011

@ Author,


That is what happens to party-in person litigants mostly. Not to be read as a comment though but knowledge of law is more required by a in-person pleader than any other party. However, I still suggest you to approach
Legal Aid Center
as earlier advised by me in one of the earlier post and I don’t see what is this ego of yours coming as hurdle. In Law practice we can’t make records but we try our level best to curtail damages means we may not win all our  case since joining Bar but our efforts is to bring least damage to our clients and simultaneous aspire to bring more andmore reliefs honestly to our expanding client base is basic premises we showcause our learnings and Law is one subject whose special knowledge no one can escape it keeps evolving forever as you also better know than me by now:-).


Well I admit this word ego is intentionally used here after reading this post as I have been reading all your post since you started seeking remedies to quite a interesting legal questions till date and is purely my personal observation which you have more rights to differ in public platforms but then it is besides the point, this Art. 227 rapsody is already dismissed na and limitation period for review is also lost but then there is always a remedy as no litigant can’t be remedy less is well respected maxim………and law favors litigants means person who love litigating is favourd in Law:-) 



BTW, it is not called ‘rejection’ as HC don’t use such words they use better word such as “dismissed” and even at the time of such usage standing at bar overhearing Lordships then oral dictation, politely you could have plead “My lord allow me to withdraw” in such case effect (later invoking cause of action under S. 5 LA) would have been different to rake in fresh cause of action!. Further there is noting called simultaneous remedies that also when you are invoking COI in family law maint. related scenarios I believe your cause of action rested on maint. case is it not ! Lady this is Law and not our FB farm villa……………..[so said with respect to your stature here and sincerely wish you all the very best in your battle and impressed with your standing as always believe you will filter out quite well in days to come].

Damayanti (Unemployed)     08 April 2011

Tajobsindia,

 

Does procedural law specify anywhere as a precondition  that every petitioner  should be thorough in law and procedures therein?

 

You know what !! ....

Only JDs aren't allowed to file revision under 115,  but at the max they can file it under 227,

But there is such precedent that DH has to utilise CPC115 option first and that DH can't directly invoke 'power of superintendance' of HC.

What if the DH also has merits to invoke the same?

 

My question is very valid to common conscience.

 

I won't get scared to ask questions because of your reply.

Damayanti (Unemployed)     08 April 2011

A correction!

But there is NO such precedent that DH has to first utilise CPC115 option, before invoking directly 'power of superintendance' of HC.


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