Legal Question in Family Law in
Your value advice:
�yes, this is an error on record. You may file a review. The only precaution one would take and one should take is as to how minor studying at Noida and living at Noida is going to help and how the court observation that minor studying at Noida and living at New Delhi has caused prejudice to you. Ofcourse under order 47 Rule 1 CPC you may ask for a review if there is an error of fact.�
Sir,
I am really obliged with your valuable advise which has given me some hope to get justice at High Court itself rather than going to Supreme Court which would unnecessarily create financial burden on me.
The civil & Distt. Courts have decided the case against me merely on the statements of the respondents & have totally ignored the evidences submitted by me.
Against the impugned order, an appeal was filed by me in P&H High court but again my advocate did not argue even a single point including for the visiting rights & ultimately the case was dismissed stating �learned counsel for the plaintiff has failed to raise any argument�
Since an error has been observed in the said order, in which Hon�ble court has wrongly mentioned that
�It was held that the minor is studying at Noida and is living with her mother in New Delhi, therefore, the Court at Faridabad had no jurisdiction and the petition/suit was not maintainable�
Though The lower courts have held that �minor is studying at Noida and is living with her mother in Noida� where as High court in its order has held that �minor child is living with her mother in New Delhi�
I humbly request for your value advise, since my advocate did not argued any point, if I file for review before the High court:
� Whether court would only rectify the above mistake or
� Would I be given another opportunity to re-argue the entire case & put the things in right prospective before the court?
� Since court has not given any order on my appeal to grant me the visiting rights, would now be able to get visiting rights.
� Sir, if you feel we would be given an opportunity by the court to re-argue the case, please advise whether I should get the services of another advocate
� In case, now I change my advocate, whether court may object to it.
Sir, I would also request for your valuable advise that I filed the petition in 2002 where as respondents have produced all the evidences after the date of filing the petition & courts have also decided the case against me considering the circumstances / evidence after the date of filing petition. The evidences so produced by respondents are also contradictory / false.
Whether court should consider the circumstances / evidence produced for the relevant period i.e. upto 2002 or can decide merely on the basis of circumstances / evidence after the date of filing petition. (in 2004)
The text of the order of Hon�ble high court is reproduced here below for your ready reference
The plaintiff is in second appeal. Both the Courts below have dismissed the petition/suit of the plaintiff in which he had sought custody of minor namely, Jishnu under the provisions of Hindu Minority and Guardianship Act 1956 (for short �the Act�).
De hors the findings recorded by the Courts below on issues No.1, issue No.2 has been decided against the plaintiff concurrently to the effect that the petition/suit filed by the plaintiff was not maintainable. It was held that the minor is studying at Noida and is living with her mother in New Delhi, therefore, the Court at Faridabad had no jurisdiction and the petition/suit was not maintainable. The plaintiff has only challenged finding on issue No.1 and has not touched finding on issue No.2, which is apparent even from the substantial question of law framed in the memo of appeal in which question pertaining to finding on issue No.2 is conspicuous by its absence. In fact learned counsel for the plaintiff has failed to raise any argument much less meaningful against the finding recorded by both the Courts below on issue No.2. Hence, no substantial question of law as envisaged under Section 100 of the Code of Civil Procedure, 1908 is involved in this appeal to reverse the finding recorded by the Courts below on issue No.2 by which the petition/suit of the plaintiff has been dismissed as not maintainable. In view of the above, I do not find any merit in the present appeal and the same is hereby dismissed.
No costs.
Regards.
1 Answer from Attorneys
Whether court would only rectify the above mistake or
� Would I be given another opportunity to re-argue the entire case & put the things in right prospective before the court?
As stated earlier, in the review you will have to first argue as to how the error would affect the framing of question of law or what question of law could be framed keeping the correction in mind.
� Since court has not given any order on my appeal to grant me the visiting rights, would now be able to get visiting rights.
If you convence the court of the question of law, the court certainly can grant the visitation right. However, in my opinion, if the court still is not in agreement on the question of jurisdiction, please ask the court to send the original case to the court of appropriate jurisdiction with notice to the other party
� Sir, if you feel we would be given an opportunity by the court to re-argue the case, please advise whether I should get the services of another advocate
You can always change the advocate or add another advocate
� In case, now I change my advocate, whether court may object to it.
It is your prerogative as to whom you want to represent you
Yes it is very important to point our that what court had considered the facts which came into existence after filing of the petition and not before. It is the earlier fact which led to cause of action and which are relevant alone.
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