• DOB change case

We had filed the case in 2014 in civil court of Joint Civil Judge of Wani,dist. Yavatmal,Maharashtra regarding DOB change of my mother in WCL company's record.And now we have won the case. According to wrongly recorded DOB of my mother ,she was getting retired from this 31st ,month of March,2018....but now according to judgment, my mother has given retirement date of year 31st MARCH,2028,which is 10 year more than previous and DOB 16 TH MARCH,2018which is correct....but now company is preparing to get stay order on this Judgment from the same court...Is it right in this case?...And it is also mention here that we have filed Caveate and get issued from district court before company's filing application for stay order.Now point of question here is that:-
1) Is company doing right by filing application of stay order in the same court where judgment is given?
2)We have already get issued a Caveate against company from District court before company's filing...is it okay and disqualify the company's application for stay order?
3) And,by chance if company,get issued a Stay order in this Judgment,what can I do in this short span of time of 10 days before 31st march,2018,which is the date of retirement according to company's record.
please give your valuable advice as an earliest possible.
Asked 1 year ago in Civil Law from Wani, Maharashtra

Company is at liberty to file appeal against trial court order

2) if caveat is filed no stay would be granted without hearing your mother

3) request court not to grant stay as if stay is granted your mother would retire and suit rendered infructous

Ajay Sethi
Advocate, Mumbai
58473 Answers
3536 Consultations

5.0 on 5.0

1) You can apply in the High Court under order 43 rule 1 of CPC to stop the stay order.

Order XLIII : APPEALS FROM ORDERS

1. Appeal from orders

An appeal shall be from the following orders under the provisions of section 104, namely :-

(a) an order under rule 10 of Order VII returning a plaint to be presented to the proper Court 31[except where the procedure specified in rule 10 A of Order VII has been followed];

32[***]

(c) an order under rule 9 of Order IX rejecting an application (in a case open to appeal) for an order to set aside the dismissal of a suit;

(d) an order under rule 13 of Order IX rejecting an application (in a case open to appeal) for an order to set aside a decree passed ex parte;

32[***]

(f) an order under rule 21 of Order XI.;

32[***]

(i) an order under rule 34 of Order XXI on an objection to the draft of a document or of an endorsement;

(j) an order under rule 72 or rule 92 of Order XXI setting aside or refusing to set aside a sale;

31[(ja) an order rejecting an application made under sub-rule (1) of rule 106 of Order XXI, provided that an order on the original application, that is to say, the application referred to in sub-rule (1) of rule 105 of that Order is appealable.]

(k) an order under rule 9 of Order XXII refusing to set aside the abatement or dismissal of a suit;

(1) an order under rule 10 of Order XXII giving or refusing to give leave;

33[***]

(n) an order under rule 2 of Order XXV rejecting an application (in a case open to appeal) for an order to set aside the dismissal of a suit;

31[(na) an order under rule 5 or rule 7 of Order XXXIII rejecting an application for permission to sue as an indigent person;]

33[***]

(p) orders in interpleader-suits under rule 3, rule 4 or rule 6 of Order XXXV;

(q) an order under rule 2, rule 3 or rule 6 of Order XXXVIII;

(r) an order under rule 1, rule [rule 2A], rule 4 or rule 10 of Order XXXIX;

(s) an order under rule 1 or rule 4 of Order XL;

(t) an order of refusal under rule 19 of Order XLI to re-admit, or under rule 21 of Order XLI to re-hear, an appeal;

(u) an order under rule 23 31[or rule 23A] of Order XLI remanding a case, where an appeal would lie from the decree of the Appellate court;

33[***]

(w) an order under rule 4 of Order XLVII granting an application for review.

31[1A. Right to challenge non-appealable orders in appeal against decrees

(1) Where any order is made under this Code against a party and there upon any judgement is pronounced against such party and a decree is drawn up, such party may, in an appeal against the decree, contend that such order should not have been made and the judgement should not have been pronounced.

(2) In an appeal against a decree passed in a suit after recording a compromise or refusing to record a compromise, it shall be open to the appellant to contest the decree on the ground that the compromise should, or should not, have been recorded.]

Ganesh Kadam
Advocate, Pune
6054 Answers
43 Consultations

4.9 on 5.0

1) no the order of the court should be appealed and stay should be seeked.

2)No the cavet will just inform you when the case is filed. It shall not restrain them. If you filed a cavet on recipt of any application from the company the court shall issue you notice.

3) First of a the court won't grant stay in there favour as of the prejudice to your mother will be caused on stay. Even if stay is not granted company is not suffering any loss so the balance is in your mother's favour.

Also even if it is granted challange same before high court. For further advice kindly elaborate query what exactly you want .

Shubham Jhajharia
Advocate, Ahmedabad
13124 Answers
50 Consultations

5.0 on 5.0

Once a order is passed by court the same court cannot stay it's own order either it will review or its order or the company should go to appellant court.

Filing in same court is not maintainable also if you have filed caveat without hearing your side and without giving you notice court cannot give stay order..

Filing caveat will help you get application of opposite party for stay dismissed. In case if they get stay order file application for status quo that is to allow your mother to continue in same position till disposal of case.

Swarnarka Chowdhury
Advocate, Mysore
1697 Answers
3 Consultations

5.0 on 5.0

Yes, the co. can go for appeal and seek a stay upon the judgement given in your favour.

1. Appeal is always preferred before a higher court/authority.

2. Caveat will not disqualify them from filing an appeal; but the only advantage that it gives to you is that you will be given an advance notice of their appeal, so that a stay is not granted to them ex-parte.

3. You will have the right to challenge the stay order further ahead.

Vibhanshu Srivastava
Advocate, New Delhi
7865 Answers
108 Consultations

5.0 on 5.0

Hi, since the court has given a decesion in your favour, there are minimal chances that company will get a stay order .. If , any how they court grants stay , we can file a appeal in high court against the order of court

Hemant Chaudhary
Advocate, Gurgaon
3982 Answers
21 Consultations

4.9 on 5.0

1. Law has give equal opportunity to all for approaching and availing the legal aid. And its in fundamental rights

2. Caveat mean when ever the opponent tries to file a suit it will have to intimate you before filling the suit a week in advance. But caveat is valid for 90 days only you have to renew it by filing again in the same court.

3. First you have to defend the Decree and judgement given to you by the honorable court. And if in case the stay is awarded you can approach the higher court for cancellation of stay

Anwar Zaidi
Advocate, Mira Bhayandar
214 Answers

4.0 on 5.0

Dear Sir,

My answers are as follows”

1) Is company doing right by filing application of stay order in the same court where judgment is given?

Ans: Yes, till appeal time is over the Trial Court can stay its own order. Under order 41 R5(2) CPC powers are given to the Court to stay its own judgment on some conditions.

Order XLI Rule 5. Stay by Appellate Court.- (1) An appeal shall not operate as a stay of proceedings under a decree or order appealed from except so far as the Appellate Court may order, nor shall execution of a decree be stayed by reason only of an appeal having been preferred from the decree; but the Appellate Court may for sufficient cause order stay of execution of such decree.

Explanation An order by the Appellate Court for the stay of execution of the decree shall be effective from the date of the communication of such order to the court to first instance, but an affidavit sworn by the appellant, based on his personal knowledge, stating that an order for the stay of execution of the decree has been made by the Appellate Court shall, pending the receipt from the Appellate Court of the order for the stay of execution or any order to the country, be acted upon by the court of first instance.

(2) Stay by court which passed the decree :—Where an application is made for stay of execution of an appealable decree before the expiration of the time allowed for appealing there from, the court which passed the decree may on sufficient cause being shown order the execution to be stayed.

(3) No order for stay of execution shall be made under sub-rule (1) or sub-rule (2) unless the court making it is satisfied—

(a) that substantial loss may result to the party applying for stay of execution unless the order is made;

(b) that the application has been made without unreasonable delay; and

(C) that security has been given by the applicant for the due performance of such decree of or as may ultimately be binding upon him.

(4) Subject to the provisions of sub-rule (3), the court may make an ex parte order for stay of execution pending the hearing of the application.

(5) Notwithstanding anything contained in the foregoing sub-rules, where the appellant fails to make the deposit or furnish the security specified in sub-rule (3) of rule 1, the court shall not make an order staying the execution of the decree.

2)We have already get issued a Caveate against company from District court before company's filing...is it okay and disqualify the company's application for stay order?

\

Ans: Caveat only entitles you to get an opportunity of hearing before stay is granted by District Court. After hearing it may or may not pass stay the operation of lower court judgment. Since in your case there is 10 years difference so the District Court may allow your mother to continue service on some conditions.

=========================================

3) And,by chance if company,get issued a Stay order in this Judgment,what can I do in this short span of time of 10 days before 31st march,2018,which is the date of retirement according to company's record.

Ans: Nothing to worry, the speaking order of District Court may be taken to High Court and HC Court has ample powers to reverse the orders of District and reinstate your mother in the same post even if she is made to retire. Good Luck. Good Case.

Kishan Dutt Kalaskar
Advocate, Bengaluru
3730 Answers
82 Consultations

5.0 on 5.0

Dear Client,

Appeal is normal course and no harm. Granting stay depends on merit of defense but i don`t think, court will stay the lower court order, Show order.

1) Is company doing right by filing application of stay order in the same court where judgment is given? -- Once order is pronounced, Court becomes officio functus, No stay possible from same court.

2)We have already get issued a Caveate against company from District court before company's filing...is it okay and disqualify the company's application for stay order? --- No, only stay will not grant without serving you notice and hear your side.

3) And,by chance if company,get issued a Stay order in this Judgment,what can I do in this short span of time of 10 days before 31st march,2018,which is the date of retirement according to company's record. -- Appeal In High Court.

please give your valuable advice as an earliest possible.

Yogendra Singh Rajawat
Advocate, Jaipur
8242 Answers
7 Consultations

4.7 on 5.0

1. An appeal has to be filed in this case.

2. Yes

3. You may challenge such interim order before the HC

Anilesh Tewari
Advocate, New Delhi
14517 Answers
205 Consultations

5.0 on 5.0

1. The company cannot obtain stay of the execution of the judgment by a court by filing a petition in the same court, it has to prefer an appeal before the appellate court only against the aggrieved judgment.

2. Caveat petition is filed to request the court to inform you or notify you before passing any exparte decision by any application that may be filed by a person who intends to file a suit agaisnt you, hence this is not a stay against the appeal being preferred.

3. You cannot do anything other than fight through court and get reinstated if being forcibly retired

T Kalaiselvan
Advocate, Vellore
48555 Answers
576 Consultations

5.0 on 5.0

Putting an application for stay in the district court is not right.

yes the lower court definitely has power to decided the DOB, they raised this objection at the time of hearing also?

There is no requirement of bail as such

if stay order is granted then an application for setting aside the stay order is to be moved.

Regards

Anilesh Tewari
Advocate, New Delhi
14517 Answers
205 Consultations

5.0 on 5.0

company can seek stay of order before lower court .

2) court would grant period of 8 weeks or so to enable company to file appeal

3) civil court has power to decide DOB case

4) if stay is granted seek expedited hearing of appeal

Ajay Sethi
Advocate, Mumbai
58473 Answers
3536 Consultations

5.0 on 5.0

Appeal is maintainable in Higher Court, IN same court it may be review application.

Second point can be advised on perusal of order, what court has deducted in reference to Jurisdiction.

Correction in DOB is rest with Civil Court, Industrial Tribunal deals with issue which is connected with the employment or non-employment or the terms of employment or with the conditions of labor, of any person;

And, if company is Public than Administrative Tribunal has jurisdiction and not Labour Court.

Bail ?

Appeal

Yogendra Singh Rajawat
Advocate, Jaipur
8242 Answers
7 Consultations

4.7 on 5.0

1. The petition filed by the company to stay the operation of the order in the same court which passed the judgment may not be maintainable or tenable in law.

The grievances agaisnt the judgment can be redressed only by the appellate court if an appeal is preferred before it.

2. If the suit was filed for declaring the correct date of birth then the civil court ha jurisdiction. If it is not an industrial dispute then the petition filed by the company invoking the said provisions of law shall be liable to be dismissed.

3. There is no reason for obtaining bail in civil case.

4. You wait for the outcome of the petition filed by the opposite party, after that you can look for solutions based on the outcome.

T Kalaiselvan
Advocate, Vellore
48555 Answers
576 Consultations

5.0 on 5.0

Please note they cannot seek stay in lower court which passed order it can be stayed by district court.

Secondly since DOB change is a suit of declaratory in nature the trial court has power to adjudicate the same and aby objection by PSU must have been raised at earlier instance not at later stage this must be your contention to get stay vacated.

If stay is granted immediately approach high court challenging same and get order if stay vacated.

Swarnarka Chowdhury
Advocate, Mysore
1697 Answers
3 Consultations

5.0 on 5.0

Generally the appeal is in higher court. Only when the order is exparte then it is stayed and set aside by same court.

Prashant Nayak
Advocate, Mumbai
6126 Answers
5 Consultations

4.8 on 5.0

1) complain to regional provident fund commissioner against company refusal to pay PF dues 

 

2) if company refuses to pay issue legal notice to company to pay Pf dues 

 

3) no need to withdraw case 

Ajay Sethi
Advocate, Mumbai
58473 Answers
3536 Consultations

5.0 on 5.0

In this case they need to clear the pf in any condition. Any rule if it says will be arbitrary as they have deleted her name form rolls. You can complaint to pf dept and initiate the same. You can also file writ petition in HC as it is clear voilation of article 21 of Indian Constitution

Prashant Nayak
Advocate, Mumbai
6126 Answers
5 Consultations

4.8 on 5.0

1. Did the company give a relieving letter after retirement given to her?

If that is the case she can very well claim the PF amount also, let them give in writing the reasons for which they are not able to disburse the PF amount, after which it can be legally dealt with.

 

 

2. Did you get the reply from the company in writing, if som, they would have mentioned the proper rules by which they were withholding the PF amount, you my see to it that if the same is correct and proper or else you may drag them to the PF commissioner for relief and remedy.

 

T Kalaiselvan
Advocate, Vellore
48555 Answers
576 Consultations

5.0 on 5.0

PF is the contribution of the employee and can not be withheld.

it is the property of your mother under article 300A of the constitution and not anny bounty to be given by them.

Approach the appropriate court to get the same released. 

 

Regards 

Anilesh Tewari
Advocate, New Delhi
14517 Answers
205 Consultations

5.0 on 5.0

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