Sirs/Mam Wife filed DV case in Indore against Husband and his Parents where shared house is situated and on same day Petitioners opened Locks of Rental Flat at Bhopal and took belongings of Wife and vacated Rental Flat and ran away Before that Petitioners had changed locks of shared House, too Magistrate granted ex party Order and directed Petitioners to allow Wife to enter in shared House and return stridhan to Wife Wife went to shared House but Locks were changed and she also put locks on house so that petitioners cannot again ran away with her stridhan lying therein Husband and Perents filed application in Dec 2016 u/s. 482 of CR PC to quash exparty Order In January 2017 Wife filed Reply in HIGH COURT and gave declaration as under :- “she was ever ready to give keys of House with prayers that house must be opened in her presence so that Petitioners cannot run away with her stridhan as they did in past and she can also take out her stridhan lying thererin. The Reply was personally received by Advocate XYZ After 6 Months Petiitoners filed 2 more Applications u/s. 482 of Cr PC before H.Court Following Order was passed by H.Court in October 2017 This is third attempt of petitioners but this time they have backing of advocate XYZ Urgency of the petitioners is that respondent had put lock on shared house and did not allow them to enter in house. Medicines of petitioner No.3 Mr ABC who is suffering from various ailments are locked in the house and they are under serious threat of being arrested in compliance of the ex party order Though twice their prayer of granting stay is not acceded by this Court but this time it is backed by their counsel. Considering the aforesaid situation and nature of dispute, this time I allow prayer with restrictions that “No coercive action shall be taken against the petitioners till further order of this Court. And all appeals were disposed and sent to Session Court wherein appeal filed by Petitioners against same order is pending and directed session court to dispose matter in 4 Months sd/- Judge Then Petitioners went to Police Station in Dec 2017 and requested Police and Wife also handed over key to Police with request to open house in her presence But Police refused to take key from her and said that there is no Court direction as such Then Wife approached the Magistrate with an application when Petiitoner No. 3 was present in that Court and Wife made an written Application to hand over keys with above requests But Advocate of Petitioner refused to reply the application on technical ground that file of complaint is lying in session court Observations :- Petitioner took wrong stand (backed by Advocate XYZ) that since 18 months Medicines are locked in shared House and on that basis he got favourable Order Guide Plz What can be done best to restore original situation before the aforesaid Order of High Court HARIOM
Hello,
Against the order of the HC under section 482, the only remedy is to approach the HC.
the 482 is an extra ordinary remedy and no review lies for the same in the HC.
However, you can move an application for recall of the order on the ground that the order has been obtained by fraud,
Regards
If you are aggrieved by the order passed by the High Court and wish to restore the position which was prevalent before passing of the said order, challenge the said order before a larger Bench in the High Court, or apply for it's review.
Wait for sessions court to dispose of application within period of 4 months
You are not being denied right to stay in matrimonial Home
Locks of the house would not be changed by respondents
Police cannot assist wife in doing so unless the Magistrate directs the Officer in Charge to accompany the wife and get her stridhan back.
Unless and until in the line of hogh court apsses such dorecvtion there would be limbo on the whole situation.
Hence file a fresh application for compliance of the order of high court. State all the urgency as you are facing.
1. After the High Court order directing not to take any coercive action against the Petitioner which you have not done after the said order was passed by the by High Court.
2. You have already filed an application before the trial court expressing your willingness to handover the keys of the lock to the Petitioner which they have not yet taken.
3. File another application before the Magistrate praying for directing the Petitioner to arrive at the said house on a particular day at a particular time for opening his lock when the wife also will open her lock, for taking out the required medicine and also when the wife will take out her articles, in presence of local police.
Sirs / Mams (1) Please Tell me exactly the Provisions of CRPC under which either Wife can move an application for recall of the order on the ground that the order has been obtained by playoing fraud, Or Wife can Apply for review of High Court 's Order Plz. Guide HARIOM
Orders are recalled under sec 151 of the CPC and there happens to be no specific section in relation to the same
The judiciary in India also possesses inherent power, specially under Section 151 C.P.C., to recall its judgment or order if it is obtained by Fraud on Court. In the case of fraud on a party to the suit or proceedings, the Court may direct the affected party to file a separate suit for setting aside the Decree obtained by fraud. Inherent powers are powers which are resident in all courts, especially of superior jurisdiction. These powers spring not from legislation but from the nature and the Constitution of the Tribunals or Courts themselves so as to enable them to maintain their dignity, secure obedience to its process and rules, protect its officers from indignity and wrong and to punish unseemly behaviour. This power is necessary for the orderly administration of the Court's business".
1.Wife can file a Review Petition within the limitation period of 30 days.
2. If the limitation period is over, then a condonation of delay petition shall have to be filed separately giving appropriate ground for late filing the review petition.
3. Engage an experienced and reliable lawyer practicing at High court having expertise in this field to file the said review petition.
1. The manner in which you have attacked the lawyer repeatedly in your query cannot be approved by any lawyer. It will be profitable for you to know that a lawyer is engaged only when the client signs the vakalatnama in his favour which contains a specific provision " AND I/We hereby agree to ratify and confirm all acts done by the advocate or his associate(s) or his substitute(s) in the above case and/or in the above court/premises as my/our own acts, as if done by me/us to intents and purposes". There is no liability on the lawyer, it is the litigant who performs the acts.
2. If the wife has evidence to prove that the order was obtained by playing fraud then she can file a miscellaneous application in the High Court in the already decided 482 CrPC petition.
Sir / Mam (1) Whether CPC 151 is applicable to recall order u/s. 482 of CR PC (2) Whether the above stated acts /statements of the Husband and his Parents do not come in the purview of sec 191 and 193 of I.P.C. for stating false during Judicial Proceedings (3) Further under which provisions / sections of CRPC Miscelleneous Application can be filed in the already decided 482 Cr PC Petition as advised by Shri Aashish ji plz Guide HARIOM
Ans to Q.1 :Yes
part II of Q.1>Yes
Ans to Q.2(1) :No
-do- (2) Yes ,if it can proved
-do (3)u/s 482 but only in high courts not the trial courts.Application in trial court can be move without quoting any section.
Under section 482 of cr pc high Court has inherent powers to prevent abuse of powers of court or to secure ends of justice
2) Under section 191 of IPC, an affidavit is evidence and a person swearing to a false affidavit is guilty of perjury punishable under Section 193 IPC which prescribes the period of punishment as seven years imprisonment. However, action against making a false statement should be initiated during the trial itself, and not at the end of it which may take a long time
2) (2004)7 SCC 166 para 13
“As a general rule, suppression of a material fact by a litigant disqualifies such litigant from obtaining any relief. This rule has been evolved out of the need of the Courts to deter a litigant from abusing the process of Court by deceiving it. But the suppressed fact must be a material one in the sense that had it not been suppressed it would have had an effect on the merits of the case…”
1. CPC does not apply to a proceeding u/s 482 Cr.P,C,
2. There is no application of 192 and 193 IPC to the facts.
3. Miscellaneous Application can be filed under 482 CRPC itself.
1. For filing an application for review of the order passed by the High Court, you won't have to cite any section of Cr.P.C.
2. You can file the said Review Petition under Supreme Court Rules, 1966.
3. However, as it is understood that the said stay order was passed by the High Court being backed by your Counsel, it will be difficult for you to retract from your earlier position now since your lawyer's step taken in the Court is binding on you.
4. You are required to consult a fresh lawyer for deciding on the ground based on which you shall file the said Review Petition.
You can file a recall application u/s 482 alleging fraud. Virendar kumar V. UP 2016 may help for reference.
uide Plz
What can be done best to restore original situation before the aforesaid Order of High Court
There are lot of messes and wrong guidances on both the side who are not approaching properly the courts for proper reliefs.
Both the sides are not following the proper steps to be taken at each stage of the case.
Let the court decide about the next course of action.
1) Please Tell me exactly the Provisions of CRPC under which
either
Wife can move an application for recall of the order on the ground that the order has been obtained by playoing fraud,
Or
Wife can Apply for review of High Court 's Order
She can file a counter and if necessary additional counter to the petitions filed by him to strongly object his petitions accordingly.
No recall is maintainable.
1) Whether CPC 151 is applicable to recall order u/s. 482 of CR PC
No. This is civil and this criminal law.
(2) Whether the above stated acts /statements of the Husband and his Parents do not come in the purview of sec 191 and 193 of I.P.C. for stating false during Judicial Proceedings
First you establish that they are false and then you can plan to file a petition under the referred sections.
(3) Further under which provisions / sections of CRPC Miscelleneous Application can be filed in the already decided 482 Cr PC Petition as advised by Shri Aashish ji
If a petition under section 482 has been disposed and if you are aggrieved then you may have to prefer an appeal against the decision
You have to just follow the directions of the HC or challenge the same in supreme court. Pursue the matter in sessions court as HC directed to decide the said matters before sessions court within 4 months.
In continuation of Original Question :- Past Briefs :- (1) Ex-part-Order was awarded in favour of Wife and Reliefs u/s.18, 19, 19(8) and 20(1) were given to Wife with reference to Shared house, stridhan and mentainance a. u/s. 18 of PWDV Act Respondents are restrained from selling shared house and stridhan b. u/s. 19 of PWDV Act the Respondents are directed to allow Complainant Wife to enter and stay in the shared House c Respondents are restrained from committing DV on Wife d. u/s. 19(8) of PWDV Act Respondents are directed to return stridhan to Wife e. u/s. 20(1) of PWDV Act the Respondent is directed to pay Rs.3000/- as maintenance (2) Respondent filed application u/s. 25(1) and 25(2) of DV Act containing therein points relating to Merits of case or False allegations related to pre-order period like (a) shared house is not shared house ? (b) Wife has no right over shared house and (c) Wife had already taken her stridhan before the ex-party order was passed, etc. etc. (3) FACTS :- Though there is no material changes in circumstances Neither Stri-dhan has been given to Wife Nor Wife has been allowed to enter in Shared House though there was only one change that Wife had also put her Lock on the shared house to safegurd her stridhan lying therein as stated in Original Question But the Respondent claims that his necessary medicines are lying in shared house which had been locked by Wife since last one year BUT the fact is that as and when Wife called Respondents through Police then they did not come to open Shared House and so wife already made application before same Magistrate to give Key to Respondents to open shared House in her presence so that she can also take out her stridhan there from BUT Respondent avoided to take key and open shared house (Also see original Question regarding Wife's declaration in High Court about giving of keys of shared house ) (4) Presently Session Court disposed Appeal filed by Respondents with direction to Magistrate as under “that first Applications filed by the Respondents u/s. 25(1) and 25(2) must be decided before executing Ex-Party-Order” QUESTION (1) Whether such environment can be considered as “changes in circumstances” as contained in sec 25(2) of DV Act (2) Whether Magistrate can re-decide his ex-party Order already passed by him in view of merits and false allegations put by Respondents in their Applications filed u/s.25(1) and 25(2) of DV Act Kindly advise HARIOM
Magistrate can decide the application taken out by respondents in view of sessions court order
2) exparte order can be modified in view of changed circumstances
1. It can be inferred that the said provisions of law can be invoked under the said circumstances.
2. If the Magistrate, on receipt of an application from the aggrieved person or the respondent, is satisfied that there is a change in the circumstances requiring alteration, modification or revocation of any order made under this Act, he may, for reasons to be recorded in writing pass such order, as he may deem appropriate.
1. To my mind there is no material change of circumstances as contained in sec 25(2) of DV Act.
2. Magistrate can of course alter his order as per the provision of the Act if he is convinced that there is a change in the circumstances. It shall depend solely on how the Advocate of the Respondent can posh through his points while submitting his arguments and how the same is countered by your Advocate.
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