How to settle addl.issue
s
(Querist) 11 December 2016
This query is : Resolved
Sir
I have defend case as party in person, and filed jurisdiction petition u/o 14 rule 5 of cpc. This petition filed after my partial cross done and time taken by plaintiffs advocate. cross of PW1, evidence of both side already filed.
Now my petition allowed and additional issue frame as - " whether court has jurisdiction to try this suit." and present matter kept for further cross continuation of defendant (myself), but i have filed memo for settle additional issue before proceed further.
So pls urgently guide me How to settle additional issue as i defend party in person and as per my written argument suit is not maintainable on various grounds...
Pls guide and help
Regards
Sonal...
dr g balakrishnan
(Expert) 12 December 2016
Before additional issues, let the petitioner prove his side;at that time you can raise additional issues; i hope you rightly filed written reply to the petition when served by necessary 'denials'.At the time of denials you can use additional issues and on that standing you could make denials too.Always one has to ensure right denials at the right time in all civil suits, as civil matters are obviously not like criminal issues that is per evidence doctrines.
Rajendra K Goyal
(Expert) 12 December 2016
Full case file need to be referred, discuss with some senior lawyer.
Dr J C Vashista
(Expert) 13 December 2016
I respectfully disagree with the expert advise of Dr. G Balakrishnan.
Since the author "s" have moved the application u/o XIV Rule 5 CPC challenging the jurisdiction of the adjudicating/Trial court (but did not disclose which type of jurisdiction has been challenged) the onus to prove his/her assertion lies with the applicant/defendant/author and not the plaintiff (can not be petitioner-as stated in instant query).
However, whether the issue of jurisdiction was taken in the written statement as "preliminary objection" or not, if yes, why did the adjudication proceed without deciding the jurisdictional issue? Why the issue was not made as "Preliminary issue"? If the defendant did not raise the issue, how the aforesaid application has been entertained/admitted by the Trial Court at the stage of plaintiff's evidence, wherein cross-examination of a witness is stated to be complete?? Strange and undigested statement has been made by the author, which require further clarification.
Instead of proceeding as "defendant-in-person" the author must consult and engage a local prudent lawyer for his/her own benefit, it is my personal sincere advise to the author, since such technical points cannot be advised on this platform.
s
(Querist) 13 December 2016
Thank you very much Dr. Vashista Sir
Sir
preliminary issue may be frame but my earlier adv. not informed it, and as per advice i have filed my 14(5) appl. on jurisdiction point which allowed by court, and addl. issue frame as " whether this court have jurisdiction to try this suit" now matter again posted for cross continuation....
Hence i have field appl. to decide addl issue before proceed further....
Due to other side is much influence person, and file false suit, so i defend party in person as already four adv. changed by me....
s
(Querist) 13 December 2016
i have covered all point in ws
Dr J C Vashista
(Expert) 13 December 2016
How come the court assumed the jurisdiction and proceeded, if you have taken it as "preliminary objection"? Something missing/being concealed.
s
(Querist) 14 December 2016
So what can i do, pls guide at earliest which help me definitely
s
(Querist) 15 December 2016
Sir I have filed memo appl. "that decide addl.issues. issue before proceed further " and it's also taken on record & copy served to other side advocate BUT court inform me to file petition instead of memo appl. while other side adv. revive copy subject to reply
pls guide and help whether I file petition to settle addl.issues or in which section? ?
dr g balakrishnan
(Expert) 15 December 2016
it is right to disagree with me by respectec adv. Vashist.
Fact what has to be done first is to be done first, that is called the rule (of law);
civil procedure has many 'ifs and buts', what to be done first what next; so always before replying by a written statement one needs to carefully examine the position that way written statements are allowed in a civil matter, as civil law wants to protect the respondents under right methods.
so it is obvious one needs to raise 'jurisdiction'
Now you have not is obvious. so once this issue is decided, you have an appeal procedure there you can rightly raise issues with the permission of the hon court is the only some kind of revisional jurisdiction you can request the court to apply, obviously it is at the will of the hon court; hon court would condescend provided you talk calmly before the judge, not rudely, as many young lawyers might, so ensure your lawyer cooly moves the court in all balance,
s
(Querist) 15 December 2016
Sir when my petition 14 (5) allowed my written arguments not a single point cover by HON COURT while pass order even I have argu the same in Oral. whereas all points taken on order from other side. whether I file petition as ask by court even memo on record
pls guide urgently as I'm defend party in person and plaintiff is too infulsive
Dr J C Vashista
(Expert) 16 December 2016
Contact and engage a local prudent lawyer to protect your interest since such technical issues arise instantly, which can not be tutored by experts on this platform.
s
(Querist) 20 December 2016
as per order in petition 14 (5) addl. issue frame as "whether this court have jurisdiction to try the suit" as issue of law and fact also arise as per order...
hence its better if court go first for issue of law ?
can i file petition 14 RULE 2(A) r/w 151 cpc, for settle addl. issue before proceed further.
s
(Querist) 20 December 2016
as per order in petition 14 (5) addl. issue frame as "whether this court have jurisdiction to try the suit" as issue of law and fact also arise as per order...
hence its better if court go first for issue of law ?
can i file petition 14 RULE 2(A) r/w 151 cpc, for settle addl. issue before proceed further.
Ms.Usha Kapoor
(Expert) 26 December 2016
Yes! you can raise w2hether court has jurisdiction as an additional issue and can file a petition 14 rule 2A r/w 151 CPC for settling additional issue before proceeding further.
