Esteemed Lawyers and Respected Members of the Club,
First of all i want to thank you with all my heart for giving me a sound advice earlier .The result of which is that i won a permanent injunction on my part of the ancestral property.I have some more queries if any kind gentleman/lady would answer i would be very thankful.
I am an NRI and My father holds property in Ludhiana which he inherited from my grandfather.My grandfather held this property jointly with his six brothers and till today no partition has been done.i have one sibling a brother.My parents and my brother tried to sell this property and did not acknowledge my due share in it.i filed a case in the lower courts Ludhiana asking for a stay on this property as it was ancestral property and i supplied a fard as an evidence which showed my father inheriting it from my grandfather after his death.The opposing Party failed to prove that it was my fathers self made property and the case went on from march 2007 and the decision was given in my favour in dec 2007 as i was granted a stay. I was physically present in court from march 2007 to mar 2008.after that i left for Canada.My father went to sessions court with the case and the case was accepted and they met my lawyer after i left india giving him the proposal that they agree to give me ¼ of the share rather than 1/3 aswe r three coparcerners.My queries are:
1.My lawyer speaks a bit of their language cause at first when i was leaving my lawyer told me the patwari will come first as his appearance is needed and then i will be needed to be physically present before the judge and now he says i’ll be needed before the patwaris evidence and if i don’t come and show up myself at the lower court personally the lower court hon. Judge might dismiss the case .i told my lawyer to show the documents in court which give the proof that i cannot leave Canada for a certain period as i am a new immigrant and have to maintain my residency here but my lawyer says judge is not bothered about that.
2.what is the procedure in the lower court after the case is pending in sessions court?
3.My lawyer says that there r going to be arguments in sessions courts and i’m needed there too otherwise the session court judge might favour the opposing party
4.how long the case can go on in the session courts before reaching any decision?
5.will the opposing party will be able to file a court case in high court?
Your presence is not necessary at the time of argument, because it is advoctes duty to argue, but why the advocates instruct their clients to be present in the court that clients must know what the advocate argued and so in case of evidence while cross examination be present in the court so you can give some ideas to an advocate.
But it is not mandatory to be present in the court at the time of evidence of the wittnesses. and couit will not favour the other party because of your absency.
The judgememnt will be passed on the facts and evidence but not on the presence of the parties.
There is no need to appear before the civil court unless your presence is required by the court for any specific purpose i.e. filing of original documents, which you are relying upon, admission/denial of these documents and thereafter issues will be framed by the court. The court would need your presence for leading your evidence, and then only your physical presence is required by the court, because the other party would be granted an opportunity for your cross-examination. When your evidence is over/closed, the other party would lead its evidence and thereafter matter would fix for final arguments and judgment thereupon.
But in your case you have done all these things in the subordinate court and now the opposite party has filed the appeal against the judgment passed in your favour. Therefore you are not required to physically present before the appellate court, as the appellate court has to appreciate all the documents, material on record and evidence given by both the parties and nothing else.
Frankly speaking your Lawyer is making you fool. Better you change your Lawyer.
This in reference to your second quarry, once the lower Court has passed a judgment/decree in your favour; it has nothing to do thereafter. Now the case is pending in the Appellate Court, therefore the appellate Court can upheld the judgment of lower Court in your favour or reverse the same, as per the document, material and evidence on record.
For your third quarry, I would say no judge is influenced by the presence of a party, it is only by the arguments and caliber of a Lawyer.
For your forth quarry, there is no specific time to decide an appeal, it depends Court to Court and on the work load of a Court. But appeal are not too much prolonged, if the Lawyer is quite active and come over the tactics, played by the other parties to delay the disposal the matter.
For your fifth quarry, if the appellate Court upheld the judgment of the lower Court in your favour, then the opposite party has right to file second appeal before the High Court. But the second appeal can be filed, if any question of law is involved therein, and not on the facts of the case.
I am very grateful to you for taking out time to answer all my queries and putting me on the right track.We need more people like you and Mr Rajeev in the Justice system to uphold its values.once again i thank all the members who r doing this wonderful work thru this website.