thanks for information but now a days the forums'are facing court stop problems
it is a welcome step, but to maintain impartiality a mechanism to fix liabilty on the menbers may be brought in even after their tenure is over.
Will this amendment see the light of the day. The consumer disputes redressal forums were formed for giving justice to the consumers being cheated in the hands of those selling goods and /or services. But today the things are in the opposite, the consumer forums are more in the favour of the sellers of good and/or services. Take the numerous cases filed in all the forums, DF's, SCDRC, NCDRC against all most all the builders in India, they are able to manage there cases in connivance with the Members/Presidents of almost all the forums and commissions.In the simple sentence "in the interest of justice" they giver numerous opportunities Builders/Realtor making them play with the peoples money. The very limitation clause of deciding the case in 90 days is never adhered to. Have myself seen cases of the year 1998 getting decided in the year 2010, basically there is no control on the heads of the forums/commissions and they try to take the best advantage. Rather consumers in India today are shy in filing cases with the Consumer Forums/commissions and prefer outside settlement, thus loosing a big amount of there hard earned money. Its time for our Govt. to wake up and change the laws to make it mandatory for the Builders/real estate developers to come up with projects with their own money and should only be allowed to offer for sale Flats/Villas/Pent houses/Apartments/Independent floors/Plots and after completing all the development work and after obtaining NOC from the concerned state/central govt, so that the burden on the forums gets reduced and the innocent people are not cheated / befooled by all these greedy builders
When will this amendment come into force..
There may some lacuna in the functioning of the forums, but still most of the people are being benefitted by the forums functioning.The functions of the forums are to be monitored by the authorities so that it will be more effective and be useful to the common man.
What is the use of amending the act ?Consumer foras are working like civil courts. You cannot file a complaint against telecom service providers.In Tamilnadu, the state commission's functioning is anti-consumerism.
A eagerly welcomed change!!!!!
Now this act has not been amended since 2002 and already been enacted 25 years ago we really need an amendment to deal with many trickling situation while conducting the proceedings and implementing the act.But unfortunately the feedback from educationists, people who are related closely with the implementation of the act like lawyers and forum members and the office, and more over from general public is needed so suggestions are to be taken from different sources so we get a better act and do not feel another amendment soon.There happens to be trickling situations where we need express provisions to be made like when there are two members in a forum for example : president and one member and for some reasons the third members place is vacant and in between this time when these two members differentiate on a occasion the provision in the act is to place the orders of both the members to third member to access and than whom he/she agrees becomes the order of the forum getting the majority view,but if it is not possible to have the third member and the place is vacant and for some reasons can not be filled for some years and at the same time when the present president and member differentiate what will happen to the proceedings..whether they should keep the order in abeyance for years and wait till the third member comes as per the provisions of the act totally frustrating the summary nature of the cases under this act and purpose of the act,if they should not what should be the course of action so it has to be expressly provided rightly amending the related provisions in the old act.And believe me there are many many more things needed to be corrected which can only be said by those who have got direct first hand experience with the conduct of proceedings under this act and their feed back should be taken seriously...
Judiciary also managed by humans and not that has fallen from the sky, to err is human. View this case.
07:58 (11 minutes ago)
to indiaagainstin., renukumar, ssmlaw, bcc: Capt.ArunChand., bcc: ASHOK, bcc: Dr
Lack of updates in the profession ADVOCATES NOT KEEPING ABREAST or by colluding secretly * Common man suffers, for no fault of theirs.
Dr. Chandran Peechulli,
With reference to your request that I should take up your case to the Supreme court, I perused the documents sent by you for my consideration. After perusal of your case papers, I am constrained to express my opinion that you have no chance of winning the case even before the supreme Court of India for the following reasons.
You have filed a suit for bare injunction before the Civil court of Junior division of Bangalore ( O.S.No.365/2004) on 30/03/2004 on the following brief facts.
That the suit property was purchased by you on 30/05/1983 and registered on 04/12/2000.
That Trespass of defendants in suit property was on 17/03/2004 and that they had removed stone pillars, barbed wires and built up katcha shed therein. That you had lodged a criminal complaint against the offenders/defendants with the jurisdictional ploice station on 18/03/2004.
Suit for bare injunction filed by you on 30/03/2004 was dismissed by the trial court on 28/08/2008 on inter alia, the following ground.
That you have failed to prove your lawful possession over the suit property as on the date of the suit nor did you prove the alleged interference by the defendants.
You have challenged the judgment of the trial court dismissing O.S. No.365/2004 by filing an appeal (R.A. No.117/2008) before the civil court Senior division and the same was dismissed on 21/10/2010 on inter alia, the following ground. That the Trial Court didn’t go wrong in holding that plaintiff failed to prove her lawful possession and enjoyment over the suit schedule property and, therefore, the judgment and decree didn’t call for interference.
You have again challenged the judgment of the First appellate Court dismissing your Appeal by filing Second Appeal before the High Court of Karnataka (R.S.A. No.160/2011) which was also dismissed on 07/12/2011 on inter alia, the following grounds. That there was no error in the judgment of the courts below dismissing the suit of the appellant-plaintiff and it did not suffer from any illegality or irregularity. That no question of law much less substantial question of law was involved in that second appeal.
ISSUES FRAMED BY THE TRIAL COURT IN O.S. No.365/2004 are as follows.
a.Whether plaintiff proves her lawful possession over the suit property as on the date of the suit? b. Whether the plaintiff further proves the alleged interference by the defendants? c. What order or decree?
FINDINGS OF TRIAL COURT
That the plaintiff has failed to prove her lawful possession over the suit property as on the date of the suit nor did she prove the alleged interference by the defendants. Therefore, suit was liable to be dismissed.
POINTS ARISEN FOR CONSIDERATION OF FIRST APPELLATE COURT.
Whether the Trial judge went wrong in holding that plaintiff failed to prove her lawful possession and enjoyment over the suit schedule property?
Whether the judgment and decree calls for interference?.
FINDINGS OF FIRST APPELLATE COURT
That the Trial Court din’t go wrong in holding that plaintiff failed to prove her lawful possession and enjoyment over the suit schedule property and, therefore, the judgment and decree din’t call for interference. Therefore, the Appeal was liable to be dismissed.
FINDINGS IN JUDGMENT OF SECOND APPELLATE COURT
It is clear that on 17/03/2004 itself even according to the plaintiff, the defendants trespassed into the property, removed the stone pillars, barbed wires and also built a small katcha shed. From this, it is clear that the act of the alleged dispossession of the plaintiff was complete and accomplished. Therefore, even as on the date of the suit, the plaintiff was shown to be not in possession of the suit schedule property. In the light of this, it cannot be said that the trial court has committed any error in recording a finding of fact that the plaintiff was not in possession as on the date of the suit, as such, she is not entitled for the relief of permanent injunction as sought in the plaint.
The plaintiff who claims to be the aliened from two of the co-owners cannot seek an order of injunction against the other co-owners who are deemed to be in joint possession of the property.
In view of this matter, there was no error in the judgment of the courts below dismissing the suit of the appellant-plaintiff and it did not suffer from any illegality or irregularity.
No question of law much less substantial question of law was involved in that second appeal. Therefore, the second appeal was liable to be dismissed.
When you have been dispossessed by the defendants, you should have filed either a suit for recovery of possession under Section 6 of the Specific Relief Act,1963 within six months from the date of your dispossession or a suit for declaration under Section 34 of the Specific Relief Act,1963 with a prayer for the reliefs such as prohibitory injunction and damages in lieu of, or in addition to injunction as provided under sections 37,38 and 40 the Specific Relief Act,1963. However, you have wrongly filed a suit for bare injunction for the best reasons known to you. You will never get the relief from any court of law by filing an inappropriate suit. You have to be vigilant enough to file an appropriate suit in an appropriate forum to enable yourself to secure an appropriate remedy. You can’t really achieve success through legal means merely by filing a suit or apeal after appeal unless your prayer therein is appropriate and before an appropriate forum.
In a suit for bare injunction, the Court of law would be concerned only with the possession of the suit property as on the date of filing of the suit and not the title of the suit property. That is what has been done by the trio court and even the Supreme court would do the same thing in the event of your taking up the matter thereto. The court will confine its decision to the issues framed by it while deciding the matters, and the issues will be framed based on the disputed pleadings of the parties in the appropriate cases filed by the litigants No evidence will be allowed to be led to prove a fact what has not been pleaded and no issues will be framed, no findings will be arrived at and consequently, no decision will be rendered by the Courts of law on those facts which are not pleaded by the litigants. Otherwise, the Superior Court will quash the order of the Subordinate Court.
EVIDENCE IN ABSENCE OF PLEADINGS AND ISSUE
No amount of evidence can be looked into in absence of necessary issue and pleadings thereon.
(STATE BANK OF INDIA Vs. S.N.GOYAL – 2008 ALL SCR 2139)SUIT FOR DECLARATION WITH INJUNCTION(ANATHULA SUDHAKAR Vs. P.BUCHI REDDY – 2008 ALL MR (SC) (5) 451).
(A) Specific Relief Act (1963), S.38 - Suit for prohibitory injunction relating to immovable property - Finding on title when can be examined.
To summarize, the position in regard to suits for prohibitory injunction relating to immovable property, is as under :
(a) Where a cloud is raised over plaintiff's title and he does not have possession, a suit for declaration and possession, with or without a consequential injunction, is the remedy. Where the plaintiff's title is not in dispute or under a cloud, but he is out of possession, he has to sue for possession with a consequential injunction. Where there is merely an interference with plaintiff's lawful possession or threat of dispossession, it is sufficient to sue for an injunction simpliciter.
(b) As a suit for injunction simpliciter is concerned only with possession, normally the issue of title will not be directly and substantially in issue. The prayer for injunction will be decided with reference to the finding on possession. But in cases where de jure possession has to be established on the basis of title to the property, as in the case of vacant sites, the issue of title may directly and substantially arise for consideration, as without a finding thereon, it will not be possible to decide the issue of possession.
(c) But a finding on title cannot be recorded in a suit for injunction, unless there are necessary pleadings and appropriate issue regarding title [either specific, or implied]. Where the averments regarding title are absent in a plaint and where there is no issue relating to title, the court will not investigate or examine or render a finding on a question of title, in a suit for injunction. Even where there are necessary pleadings and issue, if the matter involves complicated questions of fact and law relating to title, the court will relegate the parties to the remedy by way of comprehensive suit for declaration of title, instead of deciding the issue in a suit for mere injunction.
(d) Where there are necessary pleadings regarding title, and appropriate issue relating to title on which parties lead evidence, if the matter involved is simple and straight-forward, the court may decide upon the issue regarding title, even in a suit for injunction. But such cases, are the exception to the normal rule that question of title will not be decided in suits for injunction. But persons having clear title and possession suing for injunction, should not be driven to the costlier and more cumbersome remedy of a suit for declaration, merely because some meddler vexatiously or wrongfully makes a claim or tries to encroach upon his property. The court should use its discretion carefully to identify cases where it will enquire into title and cases where it will refer to plaintiff to a more comprehensive declaratory suit, depending upon the facts of the case. ( Para [ 17 ])
(B) Specific Relief Act (1963), Ss.34, 38 - Suit for injunction simpliciter - Title of plaintiff disputed and claim for possession purely based on title - - Held, complicated questions can be examined only in a title suit for declaration and consequential reliefs and not in a suit for injunction simpliciter. ( Para [ 21 ])
(C) Civil P.C. (1908), S.100 - Second appeal - Suit for injunction simpliciter - High Court formulating questions of law unrelated to pleadings and issues - Held, no amount of evidence or arguments could have been looked into by High Court in absence of pleadings and issues in second appeal. (Paras [ 25 , 26 , 27 ])
I don’t find any error committed by the courts of law while deciding your case in all the stages.
You can file a suit for declaration with injunction against the defendants and their elder brothers from whom you had purchased the suit property.
You can concentrate on the suit for partition reportedly filed by the defendants against their elder brothers to get back your property. You can urge for allotment of the suit site No.8 and 9 to your vendors in the same suit. You should prepare thoroughly to get back your hard earned property. If necessary, kindly obtain legal opinion from the experts.
Your challenge to the judgment of High Court of Karnataka in R.S.A. No.160/2011 dt.07/12/2011 either before the same Court or before the Supreme Court will not serve the purpose, i.e. you will not get back your property either in a suit for bare injunction or appeal after appeal in that matter. I, therefore, express my inability to handle this case on your behalf. I also advice you to keep my suggestions in your mind while you challenge the judgment of the High Court of Karnataka dt.07/12/2011 either through some other Advocates or as party in person.
THANK YOU. Forwarded by SAI Chandran Peechulli.
* RE-LAWYERS TAKE LIFE EASY AT THE COST OF THE CLIENTS. ADDING FUEL TO FIRE.
* Ombudsman to investigate lawyers' conduct. Posted: 15 Aug 2011 Ombudsman for Legal Sector 05:43 PM PDT
Government is working on a Bill that envisages an Ombudsman to look into the complaints against lawyers and a Legal Services Board that would regulate law practices in the country. Giving this information in written reply to a question in Rajya Sabha, Shri Salman Khurshid, Minister of Law & Justice informed the House that a draft Bill titled “Legal Practitioners (Regulation and Maintenance of Standards in Profession, Protecting the interest of Clients and Promoting the Rule of Law) Act, 2010” was drafted and uploaded in the website of the Ministry of Law & Justice inviting comments and suggestions of the stakeholders. Comments are being received. Shri Khurshid said the draft Bill will be reviewed based on these comments.
As per the proposed Bill, the complaints against the legal professionals will be examined by the Ombudsman and the report of the proposed Ombudsman will be forwarded to the Disciplinary Committee of the Bar Council of the State with a copy to the proposed Legal Services Board. The Disciplinary Committee of the Bar Council shall consider the report of the Ombudsman and if such report is not accepted by the Bar Council, the reasons for rejection of the recommendations of the Ombudsman shall be explained in detail and the same shall be published in the manner prescribed by rules. This will not in any way minimize the role of Bar Councils, Shri Salman Khurshid said.
However, Clauses 30-33 of the proposed draft Bill empower the Board to issue directions to the Bar Councils in certain specified circumstances and enables the Board to approach the High Court for enforcement of the directions if the Bar Councils fail to comply.
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The powers to recall the ex-parte orders and judgments should also be given to the District Forum, State Commission and National Commission. It would save time as in case of not recalling the ex-parte orders, the parties go for appeal and it takes time and also the workload of higher authorities go up.
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