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Exparte order set aside - Appeal and grieveance - help !!

(Querist) 20 September 2009 This query is : Resolved 
Respected Experts,

Mine is a divorce petition which I instituted 5 years back in Thane district court, Maharashtra. In the 5th year my case was transferred to the fast track court that is on 21st march 2009. My husband did not appear in fast track court for 4 months after the transfer, therefore I made an application for deciding the case Exparte. . (Iam appearing party in person)

Before passing an Exparte order the judge issued a notice to my husband’s lawyer informing about the transfer of the case to the fast track court as my husband’s current residence address is not known. The 2 lawyers on record are father and the son. The advocate father received and signed the notice but still they did not appear in the court for the next 4 hearings.

Surprisingly on the very same day after 4 months, when the final Exparte order was to be passed, my husbands advocate applied to the setting aside Exparte order on the grounds of non-receipt of the notice of transfer of case to fast track court. The judge Justice M.H. Belosay of thane district court, room no. 225, accepted the application to set aside Exparte and gave a date for argument on the application.

However the judge seemed biased and does not pay attention to my pleadings as:

1) Judge Belosay did not at all give me an adequate opportunity to present my side of argument, and listened properly only to my husbands lawyers argument.

2) Whenever I presents any application like recovery of interim maintenance due petition, say on setting aside Exparte application and other legal application the judge tries to put me down by saying: My god!!! How many applications are you presenting?

3) There is a discrepancy in the cause list – the online status of the case is stated as dismissed on April 21st 2009 (reason stated – contested or otherwise), but in reality the case I still going on in the court. On the date of the hearing the court clerk refuses to list my case on the cause list even after bringing that to her notice though the case is heard. And screams and shouts at me if I request her for having a look at the Roznama, when same is given to my husband’s lawyer, without any tantrums by the court clerk.

4) Also the court clerk did not put on record the bailiff report of my husband’s lawyer having signed and received the notice of transfer of case. When I found out that the report/receipt is missing, shockingly she replied that she has no time to see where it is and that it must be lying somewhere around the court files. When I said that I will complain if the report is not found, after 4 hours without any need for searching she gave it to me from the cupboard nearby, as she knew it was there.

5) Judge Belosay even though there was prima facie evidence on record in the court, that my husbands lawyer has received the transfer of case to fast tract court notice, set aside the order to proceed Exparte stating that they did not receive the notice as a family member of my husband’s lawyer had received the notice.

Iam totally depressed by this injustice I have to face, Iam feeling helpless. I want to appeal against the setting aside of Exparte order. Please guide as to where should I file the appeal, in the High Court of Mumbai or in the same court i.e. district court of Thane.

Also please advice as to how to proceed against court clerk and bring to the notice the discrepancies going on in fast track court.

Binod Kumar Mishra (Expert) 20 September 2009
Dear Ria,

In totality what i want to say that at any stage the aggrieved party may go for cancellation of ex-parte order.

If suppose you have been awarded the ex-parte order in your favour on the day opponent lawyer present his application, that order may be cancelled.

So in judicial matters, both the parties have the rights to place his defence before the court.

The Court is quite right in accepting the plea of the other party. if your case is strong then go for the speedy trial of the case. you know a phrase "JUSTICE DELAYED IS JUSTICE DENIED"

Ria (Querist) 20 September 2009
Respected expert,

Thankyou for the reply but iam not aggrevied by the acceptence of application for setting aside exparte order,
but aggrieved because Judge Belosay even though there was prima facie evidence on record in the court, that my husbands lawyer has received the transfer of case to fast tract court notice, set aside the order to proceed Exparte stating that they did not receive the notice as a family member of my husband’s lawyer had received the notice and no the lawyer himself, which is not true.

The lawyer on recorded has clearly accepted the notice regarding transfer of case to fast track, which judge has knowingly overlooked !!!!
Sachin Bhatia (Expert) 20 September 2009
Both the parties have the rights to place their defence before the court. It is the discretionary power of the court to pass the order. If you think that you are aggrevied by that order then you have the right to appeal against that order.riven
Ria (Querist) 20 September 2009
Respected experts,

In which court should I go for an appeal, in same fast track district court or the high court ?riven
Jithendra.H.J (Expert) 20 September 2009
You have to approach the High courtriven
Adinath@Avinash Patil (Expert) 20 September 2009
As natural justce court have to set aside ex-partey order.In my opionion there is need file appeal,you can proceed with your case at the earliest,you lead your oral and documentary evidence and late decide your pettion on merit.Thereafter you aggrived the judgment And decree you can file appeal in the high court.
Bhumik Dave (Expert) 21 September 2009
First u file an application in district court to transfer ur case in another court and also file a complaint against board clerk for her misbehavior and carelessness. File appeal IN High court.riven
Adinath@Avinash Patil (Expert) 21 September 2009
Filing of transfer application is correct but it takes time better to decide petition on merit.riven
Sachin Bhatia (Expert) 21 September 2009
You should approach the High court for appeal.riven
Sarvesh Kumar Sharma Advocate (Expert) 21 September 2009
yes i m also agree with mr. patil.riven
adv. rajeev ( rajoo ) (Expert) 28 September 2009
Ex-parte orders can be set aside at any time. Better say no objection to allow the application on payment of heavey cost, otherwise if you objects for the application and application is rejected, then they will move to the High court, again waste of time. So better proceed with the case.
Raj Kumar Makkad (Expert) 28 September 2009
Agreed with Mishra.

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