Magistrate changed his own order

Asst. Manager - Sales

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

 
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Social activist and ESIS Legal Consultant (everysufferer isasaviour@gmail.com)

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?

 
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Advocate

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.

 
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Business

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.  

 
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Freedom

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.  

 
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Asst. Manager - Sales

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/-

 
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Asst. Manager - Sales

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

 
Reply   
 
Asst. Manager - Sales

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

 
Reply   
 
advocate

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 

 
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