Miharika (n/a) 09 October 2007

Appeal from Order or Civil Writ Petition?

Please help me. I am a Plaintiff in a Suit pending at City Civil Court. The Defendants in their Written Statement had relied upon some documents which I denied as being fabricated. In fact I became aware of said docs for the first time only through the Defdts. WS. The Court framed the Issues. I have filed Application to frame the Additional Issue whether the docs relied upon by the Defendants are genuine and valid. If a finding is made on such Issue, the Suit can be immediately decreed one way or the other. The Court has rejected my Application. Which is my better option in the High Court - to file AO against said Order or to file WP? I am not a lawyer and appear in person since the last 2 years, as I had very bad experiences with several lawyers in the past. I am confident of winning as I have relied upon SC judgment which the trial court judge ignored. Which would get disposed faster in Bombay HC - AO or WP? Thanks and regards. Miharika.

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13 Replies

Prakash Yedhula (Lawyer) 09 October 2007

You can file a revision under article 227 of the Constitution of India challenging the order. Normally a writ petition under Article 226 of the Constitution cannot be filing challenging the orders of the civil court.

Regards

Prakash

Miharika (n/a) 10 October 2007

Thank you Prakash.
However, I understand that the Bombay High Court usually does not entertain Revision against interlocutory orders.
In terms of Art. 226, I would have to satisfy the court in terms of guidelines laid down in [size=""-1""]Surya Dev Rai. Vs. Ram Chander Rai & Ors (2003) 6 SCC 675. That is why I have asked whether Appeal from Order should be filed or WP. I have not yet got the certified copy of the order which was passed yesterday, even though the board was discharged. The shirestedar informed me about it and told me to apply for the copy. After reading the order, I would get a better picture.
Thanks and regards. Miharika

mmn (n/a) 11 October 2007

[font=""times new roman""]The power of revision under Section 115 of the Civil Procedure Code is discretionary. Therefore, the High Court, ordinarily, does not interfere with the orders of the trial Courts allowing or refusing amendments or addition of issues on applications by one or other of the parties. But that does not mean that the Court has no power to correct an error where the order of the trial Court is perverse in the sense that where there is a conscious violation of a rule of law or procedure on the part of the subordinate Court. Please see AIR 1975 KARNATAKA 15 ""Chanabasawwa v. B. Ramappa"". [/font]

[font=""times new roman""]Adv. Murtaza Najmi, Mumbai.

[/font]

Miharika (n/a) 13 October 2007

Thanks. A.O. is definitely not maintainable. Revision also would be extremely restricted in scope, if at all maintainable. Usually there is no revision against interlocutory order unless it can be clearly shown that the order is illegal. I am still waiting for a copy of the reasoned order. The problem was that the present judge has just come to this courtroom after many years on the Sessions side, hence he probably did not appreciate the scope of O.14 R.5., even though I provided a good SC judgment on this.
I feel I may have a much better chance u/Art.226. Although in cross and in arguments, I can easily disprove the disputed documents, but I would prefer to have a finding based on a specific issue as to the validity of the documents, as this finding can be used by me in other proceedings between the same parties. I will be looking up the judgment referred by you. If you can refer any other judgments about applicability of Art.226 against interlocutory orders, I would appreciate it. Thanks. Miharika

mmn (n/a) 15 October 2007

[font=""times new roman""]AIR 2003 SUPREME COURT 3044 ""Surya Dev Rai v. Ram Chander Rai""
= 2003AIR SCW 3872. [/font]

[font=""times new roman""]I think this case will definitely help you as it is directly on the point that interlocutory orders passed by the subordinate courts are subject to the writ jurisdiction of the High Court under article 226 of the constitution.[/font]

[font=""times new roman""][/font]

[font=""times new roman""]Adv. Murtaza Najmi, Mumbai. [/font]

Miharika (n/a) 15 October 2007

Thanks MMN. I had already got and read a copy of this judgment. I am still waiting for the certified copy of the BCC Court reasoned order - so far I am going by unofficial verbal communication from the sheristedar that my application is dismissed. After I get it I will see what exactly is stated and then proceed accordingly. May seek further advice thereafter. Thanks and kind regards. Appreciate your assistance. Miharika

Miharika (n/a) 22 October 2007

Dear Friends

I have now got the Order copy - guess what - it is a Non Speaking Order - precisely 2 lines incorporated in the Roznama: ""Plff. in person present, Adv. for Defdt. present, Application to frame additional issue is dismissed. In the circumstances no order to costs.""

Can you believe it? This kind of Order after Reply and Rejoinder are filed and 45 minutes of arguments took place !!

Will I have a very strong case u/Art.226 & 227? Isnt a non speaking order a violation of the principles of Natural Justice?

Please advise. Thanks. Miharika

Prakash Yedhula (Lawyer) 22 October 2007

Certainly. If the court has not given any findings or reasonsing for the decision, the order is liable to be set aside. But one problem in India is that the High Court in most of such cases, remand hte matter to the trial court for fresh disposal. And this process further lengthens the litigation. You can press the High Court instead to decide the issue there itself.

Miharika (n/a) 23 October 2007

Thanks. I will incorporate such a prayer and verbally also press for it. Hope to complete filing before the vacation and circulate immediately after.
Thanks for all your advice. Really appreciate this site. Regards. Miharika

TSBehera (n/a) 05 January 2008

I am happy that you have stopped relying those pseudo advocates and fighting your case of your own.I appreciate your strength.I see you have written those documents relied by defendants to be forged.Are you sure?If so on what grounds?Why not move an application before the City Civil court u/s 340 of cr.PC to try them criminally for producing forged documents in a judicial proceedings u/s 368 of IPC.

I too am not a lawyer,but have read IPC,CPC,Cr.pC and related materials and just began to fight my case of my own.In my case too there is case of forgery of documents like you,but in my case I am100% sure and can prove in Court.I need to be in touch with you to see my case side by side.

Thanks if you solike you can keep in touch at [url=mailto:TSBehera@Yahoo.co.in]TSBehera@Yahoo.co.in[/url]

Thanks

TSBehera

Minkie (Service) 05 December 2008

Thank you for your help Mr Yedulaprakash. You had kindly provided me a copy of judgment which I had sought in this forum, with which my WP regarding refusal to frame addl. issues was allowed by the Bom HC this week. It took one year for the matter to be heard due to repeated adjournment taken by OP but in two hearings it was disposed in my favour. Thanks again for your help.

girishankar (manager) 11 January 2010

Please help me. I am a Plaintiff in a Suit pending at High Court. The same was converteted as TOS and it was draged up to supreme Court and even on grounds of appeal at supreme court did not take it account and my pray denied . Please guide me whether to for a Appeal or Revision or Reopen my case .Which one is Possible and what to be Done...

Yuktesh (na) 11 September 2011

Hi Miharika,

I hope your WP for successful and was in your favor. Could you please provide me your wp case no. It would be helpful for me to fight a similar case involving my property. Your quick response would be much appreciated.