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Anis (Asst. Manager - Sales)     10 October 2013

Magistrate changed his own order

Dear All,

I am in desperate need of help and advice. I have a DV Act case going on in MM court. My wife applied for interim maintenance and rent for alternate accommodation. The MM passed an order to pay maintenance at Rs.4,000/- per month and to provide alternate accommodation or pay Rs.2,000/- as rent for alternate accommodation.

I challenged the said order in Sessions Court and in the meantime I arranged an alternate accommodation and started paying maintenance. The next date of Session Court is 22/10/13.

Then after 2 months my wife filed an application in the same MM court  that she does not want the alternate accommodation that I have arranged and that I should be directed to arrange alternate accommodation near her parental house.

The MM changed the earlier order and now passed an order directing me to provide alternate accommodation near her parental house.

My questions are as follows:-

1) Can the MM review and change his own order which he had passed earlier and pass a new order. There is no change of circumstances so how can he change his own order when I had complied with his earlier order.

2) If not then what should be my next step to get a stay on his order.

3) Can I file a transfer petition as I feel the MM is biased and has passed the order just to please the girl's side. I have challenged his earlier order also in Sessions Court as he did not take my actual salary and liabilities into consideration and had passed an order.

I cannot afford to arrange an alternate accommodation near her parental house as she stays in an area where even a One Room Kitchen flat will cost Rs.10,000/- per month rent.

Please advise and guide me as I am very tensed. 

Thanks & Regards,

Anis



Learning

 14 Replies


(Guest)

File a writ in the High court regarding the biased judgement of lower court. The high court will ask all document's from the lower court and justify your case if it has not been followed the real justice procedure.


But it's contrary here that once you have challenge his judgement in session court then without coming of any adjudication from session court how could the lower court will modify his judgement on rent accomodation?


Do your lawyer realy submitted the set aside petition in the session court with actual court fee?

T. Kalaiselvan, Advocate (Advocate)     10 October 2013

Anis,

the MM cannot revise or change the alleged order given by him over the same issue.  If such a thing has happened, you can seek transfer of your case to some other court mentioning that the MM is acting in a pre-determined manner and you are afraid that you may not get justice through him, you may even seek to stall all the proceedings until order on transfer is made, that way you do not have to look for an alternative accommodation as ordered by the MM for the second time. You can even withhold the payment of maintenance amount until you get an order on the revision petition filed by you.

Samir N (General Queries) (Business)     11 October 2013

Anis,   


The quality of any Order, or the lack thereof, no matter how egregious, is no excuse to ignore it, to violate it or to fail to abide by it. Every losing party thinks that the Judge was biased and wants to find another Judge. That is called "bench hunting" and is thoroughly frowned upon by the upper courts. Your sole and only recourse at this time is to file a revision/appeal or whatever you want to call it for a review of that Order by a higher Court with competent jurisdiction (i.e. appropriate jurisdiction). Until the Order is reversed and/or a stay granted, you need to abide by that Order. You can file an application with the trial court seeking time to pay or whatever... that application will give you time but do not think of violating that Order. That will be contempt of Court.


The "transfer" that you are referring to is effectively an application asking the judge to "recuse." That is not granted easily. Bad Order is NO ground for seeking a new judge.  

stanley (Freedom)     11 October 2013

I agree with the view of Mr Kalaselvan.  Once an order is passed It is binding on both the parties and a MM cannot change or revise his own order :(. In case the applicant/Respondent  is unhappy with the order of the lower court she/he can file an appeal U/s 29 of the DV act in the session court and get a stay on the proceedings of the lower court.  

Anis (Asst. Manager - Sales)     11 October 2013

Yes but the Sessions Court proceedings have not gone further as the judge was transferred. Now the next date is on 22/10/13.

Also this order has been passed on a fresh application. It is not a revision application. But indirectly it is a modification of his first order since I had complied with that order. and now he is telling me to do something else.

Also the rent for accommodation was Rs.2000/-. So i found a flat for Rs.2000/- It is impossible to find a flat for Rs.2000/- in her parental home area as there the rent is nothing less than Rs.10000/-

Anis (Asst. Manager - Sales)     11 October 2013

This order has been passed on a fresh application which was a general application and not filed under any section of DV Act.

My Salary is Rs.22000/- I am paying home loan of Rs.15300/- and after deducting Professional Tax I am left with Rs.6300/- Initially MM had passed an order of Rs.4000/- interim maintenance and also gave me an option of arranging alternate accommodation or paying Rs.2000/- as rent. So I challenged the order in Sessions court as I am left with only Rs.300/- then and I have my parents and younger brother also to support.

After two months of the initial order my wife filed a fresh application which was not under any Section of DV Act stating that she has filed a 498A case and does not want to stay in the accommodation provided by me as it is nearby my shared household and I may harm her. And she asked for accommodation at her parental home. Now this MM allowed that and passed the order.

She very well knows that I can't afford a house in her parental home area as there the minimum rent will be Rs.10000/-.

If you see this is indirectly a revision of his original order which he had passed.

So is this allowed in Law.

Please reply and help me in teaching them a lesson. I want to put up a strong fight and I am ready to take them upto the Supreme Court of India. They have ruined my career and my life.

Thanks & Regards,

Anis

Anis (Asst. Manager - Sales)     11 October 2013

This order has been passed on a fresh application which was a general application and not filed under any section of DV Act.

My Salary is Rs.22000/- I am paying home loan of Rs.15300/- and after deducting Professional Tax I am left with Rs.6300/- Initially MM had passed an order of Rs.4000/- interim maintenance and also gave me an option of arranging alternate accommodation or paying Rs.2000/- as rent. So I challenged the order in Sessions court as I am left with only Rs.300/- then and I have my parents and younger brother also to support.

After two months of the initial order my wife filed a fresh application which was not under any Section of DV Act stating that she has filed a 498A case and does not want to stay in the accommodation provided by me as it is nearby my shared household and I may harm her. And she asked for accommodation at her parental home. Now this MM allowed that and passed the order.

She very well knows that I can't afford a house in her parental home area as there the minimum rent will be Rs.10000/-.

If you see this is indirectly a revision of his original order which he had passed.

So is this allowed in Law.

Please reply and help me in teaching them a lesson. I want to put up a strong fight and I am ready to take them upto the Supreme Court of India. They have ruined my career and my life.

Thanks & Regards,

Anis

Adv k . mahesh (advocate)     11 October 2013

1.  first apply a appeal petition stating all the facts with documents like your latest salary slip, latest home loan receipt, if any medical bills of your family, etc., and what you are left with with a statement 

2. seek stay of the lower court order immediately without waiting for the next date to come 

3. if on the next hearing date if you have not filed and without showing her alternate residence this leads to contempt of court and she has a fair chance again to file a petition 

4. if you file a appeal then you can take time from the lower court that your appeal petition is pending and you can fight for the stay order of the lower court 

5. the magistrate can change the order accordingly if the petition is filed by the opposite party and with the relevance of the petition he will order and it is your duty to produce the relevant facts before the judge not to pass any order and you had complied the previous order 


(Guest)

@ Author,if you are aggrieved person left unsatisfied with the unnatural justice of lower court then you have very much right to file the following two option's:


1. The writ of certiorari is issued to a lower court directing that the record of a case be sent up for review, together with all supporting files, evidence and documents, usually with the intention of overruling the judgement of the lower court. It is one of the mechanisms by which the fundamental rights of the citizens are upheld.


2. The writ of mandamus is issued to a subordinate court, an officer of government, or a corporation or other institution commanding the performance of certain acts or duties.

 

 

Here, if the lower court had performed his duty and announced the judgement without looking into your evidences of income and liabilities and doesn't followed the natural justice then do file writ of certiorari U/A 226 before HC. There is no second option left for you if you want the fast relief then move forward and consult one good constitutional lawyer.

 

regards.

Anis (Asst. Manager - Sales)     11 October 2013

Dear All,

Thanks a lot for your advice.

Regards,

Anis

Jamai Of Law (propra)     11 October 2013

in the above facts, The MM Court CAN modify the earlier Order and remove ambiguity.

 

MM Court is not exhausted of it jurisdiction. Do not apply concept of 'functus officio' incorrectly.

 

Was that the Final judgment of the DV suit?

 

 

MM Court passed the interim Order (which is not the final one) and if your case goes on for decades wife is entitled to file enhancement to the interim maintenance.

 

 

Better comply to alternative part in the Order ... pay 2000/- as rent and .................... let wife find a villa in that amount if she can get it.

 

 

Anis (Asst. Manager - Sales)     12 October 2013

Thanks a lot for your advice


(Guest)

Functus officio, a branch of the doctrine of Res judicata prevents the re-opening of a matter before the same court, tribunal or other statutory actor which rendered the final decision in the absence of statutory authority. There are many exceptions. For instance, where a statute authorizes variations of the original decision, the decision maker may revisit his or her previous decision. Common examples include competency hearings, parole board hearings and family law proceedings.

 

The person who had spoken the word Functus officio on this particular thread he has presented an ambiguity of nothing. Here no where Functus officio is disussed. The quesrist is very much eligible to file a writ of certiorari as from starting the querist is announcing that he has been deprived of natural justice,as Judge has given the order without noticing his income and expenditures and liabilities. Again without listening to the respondent he changed his own previous order without following the process of natural justice.

 

The principal of natural justice and it's meaning and principle.

 

Principle of natural justice is based on the two legal maxims "Nemo debet essa judex in propria cause" which means no one can be judge of his own cause, Audi Alteram Partem" which means opportunity of fair hearing to the other side must be afforded.

This is a rule which generally applies in disciplinary proceedings against an employee charge of misconduct or any guilt. As per the rule of principle of natural justice, an enquiry into the allegation labeled against the employee must be initiated and a fair opportunity of bearing heard must be afforded to such employee. Thus this rule requires that.

(1) charged employee should be given notice of the charges he is called upon to explain and the allegations on which those are based;

(2) evidence should be taken in the presence of the charged employee;

(3) he should be given opportunity to cross-examine the prosecution witnesses;

(4) he should have the opportunity of adducing all relevant evidence on which he relies;

(5) no material should be relied on against him without giving him an opportunity of explaining such material.

 

 


It is very clear that he has not been given any chance to put forward his own counter and without considering his plea the judge has followed the one sided decision.

 


Petition for certiorari,

A party, the petitioner, files a petition for certiorari with the appellate court after a judgment has been rendered against him in the inferior court. The petition must specifically state why the relief sought is unavailable in any other court or through any other appellate process, along with information clearly identifying the case and the questions to be reviewed, the relevant provisions of law to be applied, a concise statement of facts relating to the issues, and any other materials required by statute. The rules of practice of the appellate court to which the petitioner has applied for relief govern the procedure to be observed. For example, a petition for statutory certiorari made to the HC or SC via U/A 226 & U/A 32 must be prefaced by a motion for leave, or permission, to file such a petition. If a common-law writ is sought, however, the petitioner need only file a petition for certiorari.

After evaluating the petition, the appellate court will decide whether to grant or deny certiorari. Certiorari is issued, designated as "cert. granted," when the case presents an issue that is appropriate for resolution by the court and it is in the public interest to do so, such as when the issue has been decided differently by a variety of lower courts, thereby creating confusion and necessitating a uniform interpretation of the law. Certiorari is denied when the appellate court decides that the case does not present an appropriate matter for its consideration. In the practice of the Supreme Court, if a petition has been granted certiorari as a result of a mistake, such as where the petitioner misrepresents the case or the case has become moot, the Court will dismiss the petition as "having been improvidently granted," which has the same effect as an initial denial of the petition.

 

 

1 Like

Samir N (General Queries) (Business)     12 October 2013

What we have seen here is a total display of buffoonery by  advocates in this forum giving contradictory opinions without any disclaimers whatsoever. The best advice in this forum comes from non-advocates. 


What is totally appalling is the quickness with which advocates respond to queries without performing any due diligence, without confirming if their findings are correct, without checking if there are new developments in the applicable law which may negate their earlier understanding.  


At the minimum, will those of you who are clearly affirming that you are qualified advocates, have the decency to put in a small disclaimer that "you are unsure of your findings" or that to the "best of your recollection" or that "there is a need for further study on the subject though my initial reaction is..." Otherwise, the reader who has come to this forum will take your opinion seriously and act accordingly.


GIVING WRONG OPINIONS WITHOUT DOING ANY DUE DILIGENCE IS A DIRECT VIOLATION OF THE BAR COUNCIL RULES ESPECIALLY AFTER KNOWING THAT THE READER IS GOING TO ACT ON THE OPINION. IN ONE CASE HERE, THERE IS AN INDIRECT OR IMPLIED SUGGESTION TO VIOLATE A COURT ORDER. 


Disclaimers actually preserve your respect and protect both parties. You IDIOTS shoot out responses without doing any study on the subject. It takes a fair amount of time to understand the latest development on recusal motions, limitations or exceptions of functus officio or however that is spelled, etc. authority of the Magistrate to review its own order, what types of orders can be reviewed, etc.   Even if you were super-intelligent, it would be humanly impossible to keep track of all the latest development or even all the areas of law to shoot a response right away! Therefore, before you open your BIG MOUTH, and then embarrass yourself, do some reading and then respond. Will you? In one instance, there is an implied or indirect suggestion given to violate an Order.  

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