After 482 crpc dismiss
Sunil Mhatre
(Querist) 07 May 2013
This query is : Resolved
Hello Lawyer Friends,
I have a very tough question.
My wife filed a 498a and dowry harassment cases against me and my family. I filed a 482 crpc in high court upon the advice of a family friend lawyer. It is not good to take names but she during the course of arguments did not press for the main points which were the key points to show that it was a false case and that there was no evidance to what she had claimed nor there was any substance to it in the chargesheet. During my continued consulatation and discussion till even the day before the arguments told me that this is the start point we will argue but during the arguments she did not argue upon those star points she told so. Now the 482 crpc is dismissed. The order of the judge does not record those points which are actually present in the "Grounds" section of the petition.
Now my question is what is the next remedy I can avail. I want to approach the high court again and tell them that due to an inadvertent mistake the below points were not able to get argued by my counsel and i want to bring this point on record. Then let him take the decision. Whether to accept or dismiss.
For this in Mumbai High Court what to do
1. File Review
2. File LPA
3. Or Go to Supreme Court
because those star points which would have got me out have not been argued(not only in my opinion but other lawyers also)
Supreme Court lawyer says that those points are definately your grounds in the case but it is not mentioned in the order and it has not been argued out in your case so might not the Court consider this.
You will be asked to file review. The other High court lawyer i met said there is no provision to review its own order dismissing 482crpc because of bar of 362crpc. Another one said you have to file LPA. The other said go to supreme court.
I request somebody with the clear cut knowledge to guide me correctly in the above situation. I folded handedly ask to tell me the correct situation. I was also told that there are judgements which tell that clients should not suffer for the mistake of their lawyers.
Raj Kumar Makkad
(Expert) 08 May 2013
Non-submission of some points on the part of your lawyer shall neither be regarded as his fault bringing your under th epurviews of some judgments to which you indicated in your post nor is any provision of review on such grounds.
It shall be better to go to Supreme court, if you are adamant not to face the trial otherwise divert your energy over the proper defence of the case and let it be decided on merits within some days to come.
Sunil Mhatre
(Querist) 08 May 2013
Sir Raj Kumar,
1. Is review allowed in Mumbai High Court?
2. Can in review I raise the point which my counsel did not argue which according to the opinion of some and me were very very vital for the case?
3. Is it not going to damage my case in the trial court that the point was already in the petition which was dismissied and hence the trial court should not take that point in consideration during final arguments?
4. Finally, I want to in some way argue even as petitioner in person in High court that it should take the facts which I am stating not argued by my counsel for a consideration, whether dismiss it or accept it. Actually a lawyer from Supreme Court said that the Supreme Court will send you back to the High Court by saying that the points which you are raising in the Supreme Court were not argued in the High Court so we cannot take that point for consideration. Go and get review.
Are these advices correct?
Devajyoti Barman
(Expert) 08 May 2013
Yes, going to supreme court is the only option left to you.
DEFENSE ADVOCATE.-firmaction@g
(Expert) 08 May 2013
Laws in matrimonial cases are gender biased and so they have reverse provision such as guilt is presumed.
1) People have lot of misconception about crpc 482 and quash by higher courts.
2) Higher courts have less time and large no of pending cases. So the case has to be presented in few minutes long arguments are overlooked.
3) And most important of all is that on basis your arguments that allegations are false YOU can not get relief from higher courts , for this you have to face trial court.
IF AND IF SINCE IT IS A MILLION DOLLAR QUESTION THAT YOU BUT NOT YOU BUT YOUR ADVOCATE CAN PRESENT THE CASE THAT EVEN IF THE ALLEGATIONS ARE ACCEPTED IN TO TO STILL NO CASE CAN BE MADE OUT THAN ONLY SOME RELIEF FROM HIGHER COURTS OTHERWISE NOT.
R.K Nanda
(Expert) 08 May 2013
go to supreme court.
ajay sethi
(Expert) 08 May 2013
what are the grounds on which high court has dismissed 492 application .? if allegations made in complaint disclose commission of offence high court would be reluctant to appear .going to SC would be an expensive proposition
fight case on merits before trial court .
Sunil Mhatre
(Querist) 08 May 2013
Wife has alleged that I beated her on xx date. On xx date I threw her out of the house. However 2 days before and after that date I was not in country, my passport has the visa date and in and out of country. To that ground her reply has been that it has been a typographical mistake from her and this is the only charge against me. However my parents and my sister have lot of charges against them. At least let me come out of the case so that I can help the other 3.
The Supreme Court lawyers says that this point was not argued in the Mumbai High Court though it is present in the petition as one of the grounds but then still it will be difficult to come to SC for that argument because you have not argued it in the below court.
If some lawyers do not do honesty and compromise their clients for money or when approached by influential people...it is very very difficult to go and fight a long battle in the trial court...
DEFENSE ADVOCATE.-firmaction@g
(Expert) 09 May 2013
First of all the moment things started going wrong than client blame advocates.
You were beating your wife it is allegation which you can prove wrong only in trial court. HC and SC is no solution.
More over you can blame trial court advocates since they cost very very less while for HC and SC you have to shell out money even for consultation and no assurance for results.
Devajyoti Barman
(Expert) 09 May 2013
If you are aggrieved by the order of high court, then go to supreme court. Blaming someone is of no help.
Sunil Mhatre
(Querist) 09 May 2013
I do not know what to say..but this point which I have said above about me being out of India for 5 days during which it is said I beated her and then she replying that it is a typing mistake in her complaint...does it make any sense or proof that it is a false and bogus complaint to harass...
If this is the only allegation against me can I come out of this 498a case????
ajay sethi
(Expert) 09 May 2013
typing mistake has been discovered after you pointed ot that you were not in india during the said period . In HC judges have heavy daily board . you have to summarse your case in short . if judges dont find any merit then your case is dismissed . you have stated that although issue was raised in petition it was not argued by your lawyer . if you have funds then go to SC . otherwise fight case in trial court on merits
DEFENSE ADVOCATE.-firmaction@g
(Expert) 09 May 2013
First of all you must know whether you like or not this is similar story in most of the cases of 498 A.
Law is gender biased and so rightly or wrongly your petition is rejected at HC so THERE IS not much hope at SC level.
The money you are spending at higher courts if it is used properly at trial court level to engage best legal talent than you can come out of your agony, otherwise you go on complaining and complaining with no result but further troubles.
CHOICE IS YOURS.
