25% OFF on all LCI Courses. Offer valid till 5th Oct. Use Code: DUS25
LCI Learning

Share on Facebook

Share on Twitter

Share on LinkedIn

Share on Email

Share More

Adv Aneesh Trivedi 9424449500 (Advocate)     05 February 2016

Order 17 cpc

wfie filed sec13 in her place, at present stage she has to produce evidences  to produce evidence first date is 1st nov 15 she gave application of her illness, second date is on 14 dec 15 she or her advocate not appeared third chance is on 2nd feb 16but again she not appeared judge called her advocate he told she have some problem but instead of closing the case or dismissing the case jugdge gave agian one chance of next date in march 16,

this is not the paritallity from judge ?

order 17 cpc tells without any cause judge cant adjurn dates , if either or both parties are absent then case should be dismissed ,

note: husband appearedin first both dates, why judge is doing favor to her?

it is injustice, he said " MAMLA PATI PATNI KA HAI EK CHANCE TO DENA HI CHAHIYE"

WIFE put cruelty allegation on husband but not coming for evidence as she puts false allegations and seek divorce, also judge not heared preliminary objections from husband,,

now what to do from husband side? if he take any action then judge me goes against him........ so what to do keep calm or compalint to high court.....or on next date give closing application with cost on other  wife side.........................................



Learning

 15 Replies

fighter (Software professional)     05 February 2016

Maximum three adjournment in one case:

Adjournments Order XVII of the Code relates to grant of adjournments. Two amendments have been made therein. One that adjournment shall not be granted to a party more than three times during hearing of the suit. The other relates to cost of adjournment. The awarding of cost has been made mandatory. Costs that can be awarded are of two types. First, cost occasioned by the adjournment and second such higher cost as the court deems fit. While examining the scope of proviso to Order XVII Rule 1 that more than three adjournments shall not be granted, it is to be kept in view that proviso to Order XVII Rule 2 incorporating clauses (a) to (e) by Act 104 of 1976 has been retained. 

use this judgement of Apex court..

CASE NO.: Writ Petition (civil) 496 of 2002 PETITIONER: Salem Advocate Bar Association,Tamil Nadu RESPONDENT: Union of India DATE OF JUDGMENT: 02/08/2005 BENCH: Y.K.Sabharwal, D.M.Dharmadikhari & Tarun Chatterjee JUDGMENT: J U D G M E N T [With Writ Petition (Civil) No.570 of 2002] Y.K. Sabharwal, J. 

Adv Aneesh Trivedi 9424449500 (Advocate)     05 February 2016

ok sir i agreed but how in i tell this to judge? he will tell me you was also not present on that day.

wife advocate is not coming to the court though he is coming into the court room for another case but not for this one.

can i put application with the ruling or citation before next date?

or on the next given date?

will judge will mind this and affect the judgement//////

do guide here as advocate is liberal and saying judge may give more chances to her.... my advocate is relible he thinks wife will not come as she is not appearing if she appears then he is ready to cross.....

he also says it is better to cross her instead of getting dismiss in default.. please expert guide here what to do and how?

fighter (Software professional)     05 February 2016

498a fighter......I am not an advocate..I am victim like you.I observe that court doesn't follow it's own procedure.You can pray for dismiss the case with this citation if she will not come ....

fighter (Software professional)     05 February 2016

498a fighter......I am not an advocate..I am victim like you.I observe that court doesn't follow it's own procedure.You can pray for dismiss the case with this citation if she will not come ....if nothing will happen but she will be cautious for future..

Augustine Chatterjee,New Delhi (Advocate & Solicitor at Law)     06 February 2016

Family courts usually provide a liberal opportunity for both spouses to present their cases . However there should be a limit for the same .

Adv Aneesh Trivedi 9424449500 (Advocate)     06 February 2016

@fighter

yes next date we did the same.

@ augustine chatterjee

yes there are limitation but what are they some one told me that judge will adjouned more that 5-7 dates

can we compell judge by filing the application for dismiss and providing the ruling and citation

my query over here is that will judge will mind it?

will this put any adverse effect over there?

will it is harmful for over favor?

vijay (M)     06 February 2016

Apparently that's how courts in India function... if it relates to a wife the court will never give any adverse judgement... whatever proof you may give.

vijay (M)     06 February 2016

Apparently that's how courts in India function... if it relates to a wife the court will never give any adverse judgement... whatever proof you may give.

Adv Aneesh Trivedi 9424449500 (Advocate)     06 February 2016

IN THE HIGH COURT OF DELHI AT NEW DELHI
SUBJECT : CODE OF CIVIL PROCEDURE
Date of Reserve: September 08, 2008
Date of Order : October 16, 2008
CM(M) 1146/2007
Sujata Aggarwal ...Petitioner
Through: Mr. Manu Nayar with
Mr. Hameed S. Shaikh, Advs.
Versus
Ravi Shankar Agarwal ...Respondent
Through: Mr. Sunil Mittal and
Mr. V.S. Pandey, Adv.
SHIV NARAYAN DHINGRA J.
1. By this order, I shall dispose of this petition preferred by the wife against the
orders dated 3rd March, 2007 and 23rd March, 2007 passed by learned ADJ.
2. The case was at the stage of wife's evidence. Wife had to file an affidavit in her
examination-in-chief, as per directions of the Court, within 3 days of 21st November,
2006. She did not file the affidavit. Thereafter, again directions were given on 3.3.07 to
the wife to file her affidavit within one week. The affidavit was still not filed. On 23rd
March, 2007 when the case was fixed for evidence, a proxy counsel appeared and moved
an application for adjournment and Court noticed the conduct of petitioner in not filing
affidavit and not appearing in the Court. When objection was raised by the husband's
counsel, proxy counsel for the wife told the Court that affidavit shall be filed within half
an hour and after half an hour an affidavit was produced, but copy of the same was still
not given to the husband's side saying that the same was not ready. The wife was not
there for her cross examination. Looking at the entire conduct of the wife that she was not
appearing in the Court and even the previous cost imposed by the Court was not paid, the
husband's counsel opposed the application for adjournment. The adjournment was sought
by the proxy counsel on the ground that regular counsel could not come as his father was
ill. The Court observed that it was the respondent who was to appear in the Court for her
cross examination and she had been repeatedly avoiding to appear in the Court. Since
there were no grounds given for her non-appearance, her defence was struck off by the
Court.
3. The order dated 3rd March, 2007 is in respect of disposal of the application
moved on behalf of the wife under Order 16 Rule 1 CPC, Order 18 Rule 3(a) CPC and
Order 17 Rule 2 CPC whereby she wanted to summon the records of other Courts and to
summon the witnesses who had made statements in other Courts and she wanted that
parents of the husband, the Chartered Accountant of the husband should also be
summoned in the Court as defence witnesses.
4. The Trial Court found that the case was fixed for respondent's evidence on 29th
December, 2005. Thereafter, no respondent witness was ever present in the Court.
Respondent did not examine even herself in her defence and only moved different
applications. When the Court gave directions for wife to appear and examine her
witnesses on 14th November, 2006, instead of examining herself she moved 4
applications. Those applications were dismissed with costs vide order dated 21st
November, 2006. On next date when the matter was fixed for respondent's evidence and
directions were given to file affidavit within 3 days, instead of appearing, she got moved
2 more applications.
5. On next date of hearing, the costs was not paid and the respondent/wife also did
not appear. Another application under Section 151 CPC was moved for her exemption
from cross examination. The Court found that the respondent/wife was only indulging in
dilatory tactics. It was also observed that only 3 adjournments can be granted to a party
for evidence and respondent was not entitled to any further adjournment. But the Court
still gave one more opportunity.
6. The respondent/wife in her application had taken a plea that she was suffering
from tuberculosis of Urinal track and related gynecological problems due to which she
was unable to bear any kind of stress and was unable to stand and move out of the house
as her blood pressure shoots up and because of these health conditions she was not able to
come to the Court. She should therefore be allowed to examine her other witnesses and
she should be exempted from examining herself first. The husband denied that she was
suffering from any disease as stated by her and stated that she had been seen moving
around in shopping centres. The medical certificate filed by her only showed that she was
under treatment since 25th May, 2006. The Trial Court found that although the
respondent did not file her affidavit by way of evidence in the Court, but she filed several
affidavits supporting various applications moved by her. That showed that she had been
coming to the Court and executing other affidavits. Even her plea that she was not able to
hold urine for more than 10 minutes, was not supported by her medical certificate. The
medical certificate filed showed that she was undergoing treatment of Pyrexia of
unknown origin.
7. The Trial Court also observed that her claim that she was not able to visit the
Court stood belied from her repeated visits to the Court for filing affidavits supporting
applications. The number of applications moved and number of affidavits filed by her
showed that her plea of being not able to come to the Court was false. The Court also
found that if she was not in a position to stand or move, as claimed by her, she would not
have been able to come to Court even for moving various other applications. She made
several applications on various dates running into numerous pages and with each
application an affidavit was there. Thus, the Court dismissed the application of the wife
under Order 18 Rule 3(a) with costs of Rs.2,500/- However, the Trial Court still gave the
adjournment despite finding that the respondent was guilty of delaying the proceedings,
imposing further costs of Rs.5,000/-. It was also made clear to the respondent that she
would appear on next date of hearing and would also pay the entire costs including costs
imposed on 3rd March failing which her defence would be struck off.
8. In order to consider the challenge to these orders, the Court will have to look at
the conduct of the petitioner/wife and see whether her prayer had been sincere or she had
been taking the Court for a ride because she had enough money power, on the basis of
which she has been assailing every order of the lower Court before High Court.
9. The wife herein is facing a Divorce petition filed by the husband. The Divorce
petition was filed in 1998 and appearance was put by her counsel on 15th January, 1999.
A perusal of record of Trial Court shows that thereafter the effort of the wife had been to
see to it that this case does not proceed further. One leg of the wife had been in the High
Court and almost every order passed by the leaned ADJ was challenged before this Court.
10. This Court in an earlier petition no. CM(M) 1742/2004 filed by the wife made
following observations:- In the meanwhile, it appears that the respondent/husband has
been under cross examination for the last three years and as many as 25 days of hearing
have taken place. There has to be a finality to the cross examination of the respondent
and it cannot be go on interminably. Consequently, other than the cross examination
relating to the documents mentioned in Item Nos. 1 to 9 on pages 21 and 22, the cross
examination of the respondent must be concluded positively on the next date of hearing,
that is, 23rd December, 2004
11. Above order of this Court and the orders passed by Trial Court right from the start
of case show the intentions of the respondent.
12. A perusal of the order sheets of the Trial Court would show that every kind of
excuse available on the earth had been put forward for seeking adjournments and all
tactics had been adopted to delay the proceedings. The issues in the case were framed on
1st June, 2000. The Court could record statement of the husband in examination-in-chief
only on 30th January, 2001. Thereafter, the cross examination of husband was concluded
on 22.11.2005 only, after this Court passed above stated order. In between respondent or
her counsel did not appear in the Court on 27th August, 2001 even to receive the alimony
paid by the husband. On 11th February, 2002, counsel for the respondent wanted the
proceedings to be stayed on the ground that he had preferred a revision before the High
Court, despite the fact that there was no stay granted. The Trial Court still adjourned the
case for cross examination of the petitioner. On next date, on 20th March, 2002, none
appeared for the respondent/wife neither his counsel appeared. The Court still did not
proceed ex parte and re-listed the matter.
13. On 4th April, 2002, an adjournment was sought on the ground of her ailment.
Several adjournments were sought on the ground that the matter may be settled.
However, whenever the matter was fixed for cross examination of husband, instead of
cross examining him the counsel for the wife had moved an application and sought
adjournment on one or the other ground. Even when he cross examined, the cross
examination was made in prolix manner to make it linger on. The counsel also sought
adjournments on his personal grounds, sometime his brother-in-law was ailing, sometime
he had to attend the school of his child, sometime on the ground that a relative had
expired. The respondent had all along been not appearing in Court on one or the other
ground.
14. The petitioner had filed number of petitions and appeals in this Court right from
the beginning. Every petition filed in this Court was accompanied by the affidavits of the
petitioner. Number of petitions along with affidavits filed by the petitioner as gathered
from the record of this case are CM(M)1742/2004, CM(M)14/2007, CM(A)5724/07,
CM(A)10747/07, RFA 230/07, CM(M)14428/07, CM(M)997/07 C.R.No.397/01 and
CM(M)969/06.
15. It is evidently clear from the entire proceedings that the effort of the petitioner had
been to see that divorce petition filed by husband does not proceed. The mandate of the
legislature is that proceeding under Hindu Marriage Act should come to an end within six
months.
16. The ground on which husband sought divorce is desertion. The petitioner/wife
had an option to lead her evidence to show that she had not deserted and the fault lied on
the side of the husband. Instead of leading evidence, appearing in the Court she had just
seen to it that the case does not proceed.
17. The Supreme Court in M.R. Tyagi vs. Sri Devi Sahai Gautam Civil Appeal No.
3241/2006 decided on 2.8.2006 made following observations in respect of grant of
repeated adjournments by Courts: ............ at the same time we must impress upon the
Courts that its approach, however liberal, must be in consonance with the interest of
justice and fair to both the parties. Misplaced sympathy in favour of any of the parties
results in injustice to the other party. The courts have the solemn duty to maintain a
judicial balance. We must deprecate such irresponsible approach of Courts granting
numerous and unnecessary adjournments in the strongest terms. The frequent grant of
unnecessary adjournments has come in for very serious public criticism. It is not
surprising that frequent adjournments are unnecessarily sought, but what is surprising is
that Courts generously grant such adjournments, regardless of the fact that it results in
delayed disposal of cases, involves loss of public time, increases the financial burden of
the litigants, and tarnishes the image of the judiciary. It is high time Courts stop granting
unnecessary adjournments. The High Courts must take serious note of adjournments
freely granted, even if unnecessary, and as a follow up action call upon the judicial
officers concerned, in appropriate cases, to justify the numerous and unnecessary
adjournments granted.
18. It is noteworthy that on her ground of illness while she sought adjournments, she
did not move an application that she be examined on commission. Her plea that she was
not in a position to come to the Court because she had urinary problem had been rightly
disbelieved by Trial Court. The Trial Court also rightly struck off her defence on the
ground that she was unwilling to appear in Court and unwilling to lead evidence.
19. I find that this petition is a frivolous petition and is liable to be dismissed with
exemplary costs. The petition is dismissed with costs of Rs.50,000/-.
Sd./-
October 16, 2008 SHIV NARAYAN DHINGRA J.

Adv Aneesh Trivedi 9424449500 (Advocate)     23 February 2016

again she had given one more chance after she had not appeared in three regular date what if again judge gave her chance?

may i gave application regarding dismissal of case?

in that application may i mention about order 17?

 how i produce the judgment related to order 17?

any more judgements related to it like above.....................

thanks for kind guidance and attention....

Adv Aneesh Trivedi 9424449500 (Advocate)     27 February 2016

now great news :-- kindly give  suggestions

she appeared on 17 in court but not in court room in front of judge after six seven calles her lawyer came and told to dismiss the case  in hindi " adam apirvi me case ko khareej kar dijiye"

judge order to dimiss the case no order sheet written. till evening...

query is:

why she decided not to give evidence,

if it was already decided why she came to court,

if came then not appear in front of judge

her advocates came but not participate any proceeding

quesiton: can she open again the same case as this was her fourt chance for evidence,

she appeared but not given her councel told to judge she is not willing to give any evidence ready to dismiss her case...

why she did this , can she reopen it?

 

Adv Aneesh Trivedi 9424449500 (Advocate)     27 February 2016

shall we consider that we won the case................?

or still we have to worry over it?

ADVOCATE TRILOK (CRIMINAL family PROPERTY topfreind@gmail.com )     27 February 2016

It seems now your problems are over at lest for this case.

 

However take certified copy of final order on order sheet.of the case.

 

It is easy to always win 498 A cases by expert cross examination. It is only the accused who are under tension and hence do not prepare for proper defense.

 

It seems that due to your work   for sudy of such matters have scared the other side and so dropped the attack. Your advocate also need appreciation since he or she was able to keep proper tempo of confidence.

 

Well good luck now move ahead in life with confidence not arrogance.

ANAMIKA VICHARE (LAWYER)     27 February 2016

You submitappliaction for dismissal of her petition

 


Leave a reply

Your are not logged in . Please login to post replies

Click here to Login / Register  



Post a Suggestion for LCI Team
Post a Legal Query