Which court is the competent
Amit
(Querist) 21 December 2015
This query is : Resolved
Hi,
Brief facts of my case:
(1) My wife filed DVC on me and claimed residential rights in house owned by me
(2) Trial court rejected her demand and ordered me to pay rent instead as we never stayed in that house
(3) Sessions court reversed the trial court order and asked her to take possession of the house. She occupied whole house
(4) High court ordered to maintain status quo till disposal of the DVC case
(5) Upon our request, HC modified its order and asked her to vacate one portion of the house and give it to me while she stays in the other portion and also gave an option to her to stay outside and receive rental amount from me
(6) Now I am unemployed (pursuing further education) and without any source of income and I wish to sell the house as my expenses are coming to be huge from medical, education, livelihood and litigation.
My questions are:
(1) Should I file for application now in the trial court or in the HC?
If I file in the trial court, it may say that since HC has given her an option and she chose to stay in one portion, trial court has no power to reverse that order
If I file in HC for modifying the order again, it may say since circumstances have changed by my losing job, I should apply freshly to trial court.
Which is correct?
(2) Can the court ask me to take loans instead of selling the house? I have no income so how can I pay for the loan?
(3) Can the court ask me to sell the portion of the house occupied by me? It's an independent house and hard to partition based on portions.
(4) Any other suggestions welcome
This is not academic query but real life situation faced by me so please do not comment in that respect. If you can, please try to answer to the specific queries.
Thanks
Guest
(Expert) 21 December 2015
Dear friend in modern times it is cheaper to be joroo ka gulaam.
You have to provide for her maintenance and residence is integral part of maintenance.
If you want to sell house do it with a negotiation with your wife to give her a part of receipts. Or you can provide her with rent to enable her to hire residence of her status and lifestyle. Choice is yours.
These are finer details that vary from case to case and your local lawyer would help you best
Amit
(Querist) 22 December 2015
Thanks Guptaji but that stage is long gone.
It's do or die now and been fighting for a long time. Your advice is best suited to my wife.
Anyways, I was expecting a practical and technical answer. Will appreciate the same.
Guest
(Expert) 22 December 2015
Amitji I have given practical and complete answer but in short. Sometimes truth appears bitter.
You cannot bypass the rights of your wife.
In your case it is better to consult some sharp lawyer in your town who can help you cross the bridge . Unless we know finer details and background of matter and past proceedings difficult to advise online
R.K Nanda
(Expert) 22 December 2015
query very long.
Rajendra K Goyal
(Expert) 22 December 2015
Your question are based on hypothetical situation till decided exactly by the competent court.
Entrust senior lawyer and prey High Court to permit to sell portion of the house you are occupying.
Guest
(Expert) 22 December 2015
The querist says house cant be divided for purpose of selling. So both of them can jointly strike a deal and sell it off with a written agreement to be presented in court. They can ask separate payments from buyer in their respective names as per ratio decided.That would be after approach than keep fighting in court.
Guest
(Expert) 22 December 2015
remember High court has already allowed you to pay rent if she stays elsewhere as alternative. So by proceeds of house jointly you guys can settle either lump sum amount or monthly rental to your wife.
Amit
(Querist) 22 December 2015
Thanks Gupta Ji for reading out the question properly.
Goyal ji has misunderstood my query.
The house can't be partitioned the way it's occupied right now, owing to the building structure.
My wife is not cooperative that's where the problem lies. Even when I am willing to pay rent she does not want to leave the house.
My primary question was where should the application for sale be petitioned, in the lower court or HC?
Thanks again.
Guest
(Expert) 22 December 2015
I doubt Lower court will be in position to adjudicate on this issue. Since High court had given last orders, it is better to take issue back to same court and request for asking your spouse to move to rented accommodation. You have to give some kind of undertaking to high court to make sue you dont run away with proceeds and you will keep giving rent to her. The problem is you say you have no income so you want to sell house. Then how will you pay her rent. It is bit complicated. Only High court judge can use his wisdom and give proper judicial directions. My mind has stopped functioning on this matter.The situation becomes bad as many males and families try to bypass laws by cheap tricks to oust lady from home and then go to any extent indulging disowning son.Son moving out of house so they can say she has no right on present house as it is no more shared accommodation of husband. But luckily apex court has given judgment to plug these tricks.
Frankly speaking I dont trust you too.It is difficult to take risk with you unless some arrangement is made to hold your funds for benefit of your wife. You got me?
Amit
(Querist) 22 December 2015
I get it. Thanks Gupta Ji.
If I wanted to run away, I could have done that before I instituted my divorce proceedings which was earlier than her DVC case initiation.
But what's the alternative for me since I have no source of income?
So far I have been managing with my own savings but they won't last long.
And as I said, I have huge expenses of my own and currently I am pursuing my studies.
Anyway, I'll give it a try in HC and see what they say.
Thanks for your help.
If any one else has any other suggestion or comments, feel free.
Guest
(Expert) 22 December 2015
One should not loose hope. if you wish our forum can try rapprochement between you two. It is never too late and ego has no market value. Forget issues at the moment and try to get a good job and stabilize. Your house wont run away.
All those who rad LCI posts should keep in mind even best lawyers cant solve all types of problems in society through mechanism of courts and adjudication.
That is why lok adalats and mediation mechanism is now getting favor and even promoted by PM himself.
But problem is we dont have licensed quality counselors in India. Here again we depend on advocates only. In fact reconciliation should not be through those who are on bar and practice as they dont have time and inclination to that extent as a non practicing lawyer or counselor.
I have recommended mandatory reconciliation proceedings before a registered high quality agency or non practicing legal expert before filing suit in court in majority of issues including minor criminal offenses.
India n will have to create quasi judicial fora to help courts get rid of burden and clear huge backlog of cases besides expanding judiciary to 3 times its current capacity. Not difficult.
Any way good luck!
Dr J C Vashista
(Expert) 23 December 2015
1. Too long a story and not a query.
2. You cannot sell the house lis pendens.
3. Consult your lawyer for further guidance and proceeding.
Amit
(Querist) 24 December 2015
vashista ji, I think you are confusing the residential rights under DVC with suit against property. There's no suit regarding property but my wife has been given temporary residential rights to stay in my house.
Are you saying that HC can't ask her to vacate with the alternative remedy of receiving rental money? If so, can you back it up with any provision of law or citation?
Thanks
Guest
(Expert) 24 December 2015
There is provision in DVC itself to provide alternative accommodation. But only problem is that residence order or any relief is provided till the lady needs. So high court will give you quick relief. You are hardly likely to get quick order from a magistrate court.
I think experts have given you enough advise. You should follow it now. I gain advise tact and diplomacy can win many wars not inside the courts, always
T. Kalaiselvan, Advocate
(Expert) 31 December 2015
1)For an order by high court you have to approach high court alone to revise the order in view of the change in the circumstance. By the way whether the order was after final disposal or temporary?
If you intend to sell the property which belongs to you, you can very well sell it even without court's permission but by issuing a legal notice to her to vacate and shift to the alternative rented accommodation for which you are willing to pay the rent, facilitating you to sell/dispose the property owing to your financial crisis. Let she give a reply or file an injunction suit or even contempt of court case against you from which you can derive a solution to your problem instead of wondering which court to approach to seek permission to sell your property. You must understand one thing that no court has restricted you from selling the property and since you are the absolute owner of the property you have full rights to dispose the property as per your own will and wish and if there is no bar or restriction by any court of law to sell the property, you need not worry about this issue. However you may follow the legal procedure by issuing her a notice to vacate the property, this will bring your solutions to your problem.
2)The court has got many other works to do instead of asking you or suggesting you with some other ideas to mobilise funds for your financial crisis. Please remember that court will answer only to what you approach it and will not do any such thing on its own, it is for you to seek alternative remedies from court.
3) For this question too the above answer is applicable.
4) For any other suggestions, you should ask what relief you desire, accordingly you may get the suggestions.
Dr J C Vashista
(Expert) 01 January 2016
Dear Experts,
Wish you all a very happy, healthy and prosperous new year.
Regards
Dr. J C Vashista, Advocate
email: majjagdish@yahoo.com
+ 91 98911 52939
Guest
(Expert) 01 January 2016
Kalaiselvan sir, the only problem is no body will buy an occupied house specially when hostile spouse and a lady is in occupation.That is why it may be prudent for him to seek order from court. But he says he cant afford rent.Then how it will be done.He will have to make some arrangements to divide proceeds of house between him and his wife.What is your views on this problem?
Nadeem Qureshi
(Expert) 02 January 2016
Dear Querist
It will be better to file an application for modification in the order before High Court with an offer for rental accommodation, the court may modify the previous order and directed to your wife to vacate the house and shift in the same status rental accommodation and the rent will be beard by you.
remain you know very well about your case and circumstances.
Feel Free to call
Guest
(Expert) 02 January 2016
He says he cant pay rent
Dr J C Vashista
(Expert) 03 January 2016
@ Amit,
1. Approach High Court for modification of order qua the residential relief granted to aggrieved person (your wife)by the Sessions Court and partially upheld by High Court.
2. Please read my reply wherein I have mentioned "you cannnt sell lis pendens" do not mean just a suit, it is applicable in the instant case as well.
3. Since you (or through your lawyer) are well versed with legal prepostion on the issue/subject matter, there is no room left to add.
Amit
(Querist) 04 January 2016
Thanks all experts.
Kalaiselvan took effort to answer methodically and what he said is pretty much what my advocate has said.
I have already sent a notice to my wife saying that I am unable to meet my expenses or her maintenance owing to no source of income and that I intend to sell the house and I am willing to pay the rent to her as an alternative and asked her to reply in one week's time.
Let's see whether she responds or not.
Yes, my advocate also said HC is the competent court and lower court can't entertain my application owing to HC order.
There's an injunction against sale of my property. So my advocate was suggesting that we should get the injunction cancelled but he said that it should be done in lower court as that court had given injunction orders. I am not sure why it can't be done in HC.
Gupta ji, what you said is also helpful. As of now, I am running out of my savings but I can pay rent for a short while. I can even take hand loans if the HC gives order in my favor. Once I sell the house, there'd no issue of lack of funds.
Guest
(Expert) 04 January 2016
Amit I have given you same advise right in beginning that go to high court. But I am not sure it would listen. See there are several judgments of supreme court and high courts that family of husband including husband make artificial drama of deserting home and disowning son etc so that wife is expelled from home denying her right of shared accommodation.
I can for sake of argument say that you are doing same drama of no income simply to sell of your property and then you will just disappear form the scene and deny rent to your wife.
You got to convince high court on thee points. If I were the judge I wont allow you alone to sell it but make mandatory for both to sign sale deed or get it done in court supervision. The moment this route is taken your property will go in hands of disputed property mafia and you will get much less price than market.The moment buyer s get a feeling you are under pressure the price will plummet. These are practicality aspects outside court and not concerned with lawyers area as they can only handle your best legal interests.
I still feel you should sit down with your spouse and convince her about your problems and settle a mutually agreeable mode of selling house and you need not even approach high court.Just make a legal document in consultation with your existing lawyer to manage sell and divide property. By giving her a lump sum amount you will be rid of future engagements with her too.
Miyan biwi raaji to kya kerega kaazi
Any way
All the best
Amit
(Querist) 04 January 2016
Thanks Gupta ji.
Please give me any SC citation so that I can study and help in my case especially a case where court asked both wife and husband to sign on sale deed of house which was self-acquired by husband much prior to marriage.
As per running away, I will tell the court that I can hand over my passport to the court. Moreover I have a criminal case on me filed by my wife for which I got bail on surety, so the HC should consider running away as not an option for me. But what is the remedy in law if the husband disposed off all the assets and deserted wife or ran away? If I run away, same remedies would apply, won't they?
But conjectures set aside, I will abide by whatever HC says. I have no other option. Again, I request you to give me SC citation please.
My wife is pretty stubborn and rigid. She claimed many times that she will remain single and see my end till she lives. She will not back off, so the only option is to fight it out. So far I have been on the winning side, many judges in many courts including HC saw the merits on my side and rebuked her. It's a slow process but I am hopeful, no alternative.
Thanks
Guest
(Expert) 04 January 2016
Yes go ahead
