• Transfer application of divorce in High Court

I came to know through high court site that my wife has filed for transfer of divorce case in her home town. the case was registered on 09/7/18 and it was listed on 11/7/18. I came to know this on 11/7/18 only. I rushed to my lawyer and filed vakalatnama to get certified copies of her petition and asked him to defend the case.

I doubt that my lawyer is not much interested in fighting transfer case because he just keep pressing me to file for sec 21 B of HMA for speedy judgement within 6 months in which he demanding more money. I am less interested in sec 21 B right now and because 498A is pending on me and i dont want to disclose my proofs in divorce petition presently.

My lawyer saying that certified copy of transfer application is not available as notice still to be served to you. BUT my querry is that how can a case be listed for hearing without any notice recieved by me? 

my lawyer saying that he will apply for caveat now. he get signed vakalatnama from me and said that now u dont need to appear in court i will see this. 
my querry is " is transfer petition heard without presence of respondant?"
Asked 1 year ago in Civil Law from JAIPUR, Rajasthan

hello

sir if you had filed a caveat then if an application for had been listed you would have known. as you didn't file the caveat before, you could not argue before the court when the transfer petition was listed on 11th July.now how can you file a caveat and what use would it be?

the arguments in the transfer application must have been heard by the judge and notices must have been issued. you will get notice ie copy of the petition and the date when the case is next listed. you will be heard.

regards

Rahul Mishra
Advocate, Lucknow
6197 Answers
14 Consultations

5.0 on 5.0

Dear concerned

Fistly transfer of one case from another one district to another can b done by High Court and if it is change of state then only Supreme court can do that.

Secondly summons are issu d only after first listing, no need to o file cavet , your lawyer seems to be misguiding you

You may choose to appear in person on the next date in the court and ask for time to reply the case of your wife. Court will not transfer unless hears you.

Best of luck.

Atulay Nehra
Advocate, Noida
1214 Answers
48 Consultations

4.7 on 5.0

1. Well, you are panicking for no reason.

2. The case is sited for admission hearing in which stage the notice is served.

3. once it is admitted and court fixes a date for hearing both parties then only you get the notice.

4. Before receiving the notice you are not expected to appear in the case.

5. Do not worry as disclosure of evidence in your divorce suit is not going to harm your 498A suit as in the criminal case the onus of proof lies in prosecution unlike in the divorce suit where you are liable to prove the allegations to get divorce.

Good luck.

Devajyoti Barman
Advocate, Kolkata
18599 Answers
266 Consultations

5.0 on 5.0

Court woukd insist on wife filing affidavit of service that summons have been served uponyou

2) court would not hear the transfer petition unless you are served with summons

Ajay Sethi
Advocate, Mumbai
72060 Answers
4334 Consultations

5.0 on 5.0

The cases listed on admission and court if satisfied may I love it and summon the opposite party If you have not received the notice from the court but you have the information and if you have the case number you can get the copy from high court after payment of requisite fees through your advocate

Vimlesh Prasad Mishra
Advocate, Lucknow
6203 Answers
19 Consultations

4.9 on 5.0

No, a decision will be taken in this transfer application only once notice is issued to you and enter appearance in the Court.

Maybe, the Court s yet to issue notices to you in the present matter.

If the matter has been filed already and allotted a case number, a caveat in this matter cannot be filed at this stage.

You mat either appear on your own or wait for the notice of the Court.

Vibhanshu Srivastava
Advocate, New Delhi
8753 Answers
152 Consultations

5.0 on 5.0

No transfer petition is not heard without presence of other side you shall be served notice. Further the petition is listed for notice before admission the high court preliminary sees the petition and order the notice to other party.

So don't worry you shall receive the notice. Further since the petition is already filed no use of cavet your advocate can appear and wave off notice on your behalf and take copy of documents from other side.

Shubham Jhajharia
Advocate, Ahmedabad
22882 Answers
93 Consultations

5.0 on 5.0

Dear Client,

Her transfer petition is at admission stage, so notice will serve after it will get admitted or for admission argument.

So, wait till notice serve to you or you can approach in court too on date of listing, and receive copy in person (through advocate).

What the purpose of filling caveat, transfer petition is already filed and in your knowledge, purpose of caveat already failed.

NO, opposite party will serve society.

Yogendra Singh Rajawat
Advocate, Jaipur
16743 Answers
21 Consultations

4.6 on 5.0

yes the transfer application when listed for the first time before the court does not require the presence of the respondent. it is only when notice is issued by the court meaning thereby that cognizance has been taken by the court that you would be called to prsent your side of the case arguing why the case should not be transfered.

Shaveta Sanghi
Advocate, CHANDIGARH
899 Answers
98 Consultations

5.0 on 5.0

take noc from your lawyer and contact any best family lawyer .

Citations

In Kalpana Devi Prakash Thakar Vs Dev PrakashThakar, the Court disallowed the wife's plea for transfer of the matrimonial proceedings from Mumbai. to Palanpur, Gujarat taking into account the following considerations:

(i) The husband was a medical practitioner and his absence from Mumbai would cause inconvenience to his patients;

(ii) His old and ailing mother who. lived with him needed regular medical check-ups and constant care;

(iii) The witnesses were principally from Mumbai; .

{iv} The wife had relatives in Mumbai with whom she could stay .whenever she went there-for the case;

(v) The husband was ready to bear the expenses of travel and also the traveling expenses of the escort.

(vi) Palanpur was well connected to Mumbai by train

Mohammed Mujeeb
Advocate, Hyderabad
13837 Answers
6 Consultations

4.5 on 5.0

hello

Lawyers do insist on signing the vakalatnama so that they can proceed ahead with the case. Clients many a times tell the lawyer to prepare a draftr to appear in a case and then move away to some other lawyer.

Signing only on the vakalatnama does not mean anything. You also have to sign on the petition and on the affidavit before it is filed. I havent come across advocates in the jaipur hc where I practice....who misuse a clients vakalatnama and file multiple petitions without the knowledge of the client. You have to pay fee too and sign on the petition also.

If anybody is indulging in such kind of behaviour...It comes under professional misconduct and should be promptly reported to the bar association. You can hire a 2nd lawyer for a case...an noc is required if you don't want him in your case anymore.

Any advocate with dignity and self respect won't do a case I'm which he is not allowed to participate.

You can hire another lawyer and tell him that.

Regards

Rahul Mishra
Advocate, Lucknow
6197 Answers
14 Consultations

5.0 on 5.0

Vakakatnama can only be used fir appearing on your behalf in the cases

2) cannot be misused

3) you need his NOC to hire another lawyer

4) if he refuses to give NOC send him

Notice by regd post that you don’t want to engage his services any notecards

5) you would be permitted by court to engage another lawyer

6) you cannot have 2 Lawyer’s in same case

Ajay Sethi
Advocate, Mumbai
72060 Answers
4334 Consultations

5.0 on 5.0

Actually There is no such thing as need of NOC from old lawyer to client. The word NOC actually doesn’t even figure out in bar council rules, but somehow it has come into common usage which is unfortunate, because it’s only a consent from old lawyer to new lawyer that is needed. It may seem like technicality but it’s not since a NOC from advocate to client means as if the client is prisoner of advocate! A consent from old to new advocate is more like no-poaching-of-one-another-clients-agreement between ‘brother’ advocates.

You can read this recent jugdment by Karnataka HC which clearly says one can appoint new advocate even without ‘NOC’ from old advocate. Even if advocate has issue about fees with client still he/she can’t deny ‘NOC’.

Mohammed Mujeeb
Advocate, Hyderabad
13837 Answers
6 Consultations

4.5 on 5.0

1. No, not likely.

2.There is no procedure except to clear his fees and take NOC o the vakalatnama.

3.Yes but two separate sets of lawyers generally can not work in tandem with each other in the same case.

4. Lodge complaint with Bar Council.

Devajyoti Barman
Advocate, Kolkata
18599 Answers
266 Consultations

5.0 on 5.0

First of all you need to trust him. Signing a vakalatnama means he will represent you in court. You may hire as many as advocates you may wish to represent you but for transfer if you don't get NOC even then you may hire a new advocate and if he has to get his fees he will file a suit for the fees.

You may change advocate any time as replied above.

If you can you may represent yourself with out any advocate and that could give you relief from all the suspicion.

Vimlesh Prasad Mishra
Advocate, Lucknow
6203 Answers
19 Consultations

4.9 on 5.0

1. If the vakalatnama is filed then there is no need to get the certified copies of the petition Your lawyer can appear in the court and seek the copy from the opposing counsel then and there. Applying for certified copies in advance would result in completion of service even before the court could order the issuance of notices.

2. When a case is filed in the High Court it gets listed for admission, and at this stage the respondent is not even in picture. On admission the HC decides whether to issue the notice or not. Your understanding is flawed.

3. Your lawyer was right in advising you to file the caveat, lest the HC ordered an ex parte stay on the proceedings of the lower court.

4. Transfer Petition like any other petition is heard ex parte on admission and even an interim order is at times passed ex parte.

5. You are free to engage another lawyer.

Ashish Davessar
Advocate, Jaipur
27476 Answers
812 Consultations

5.0 on 5.0

There`s nothing in vakalatnam, just authority to represent client in court, common format and conditions, Will get from anywhere and than can read, no misuses of it.

If no NOC than request the BAR association office and court in which case is going. He will give NOC once his fees will be clear.

Not suggested otherwise, clash of titan, and you will be effected party. With his permission you can appoint. Who is your lawyer ?

What malicious ?

Yogendra Singh Rajawat
Advocate, Jaipur
16743 Answers
21 Consultations

4.6 on 5.0

You will get notice from court to record your objection either in person or through your advocate.

On getting notice, you may appear before court and get the copies of the petition if it was not sent to you along with the notice.

If your lawyer is not cooperating then you change the lawyer and get the task completed through another lawyer.

T Kalaiselvan
Advocate, Vellore
61997 Answers
800 Consultations

5.0 on 5.0

1. Vakalatnama is a printed form, you dont have to read them, because it is a routine in nature.

Your lawyer cannot misuse the vakalatnama,.

2. NOC from previous lawyer is not required these days to change the lawyer.

You can engage the services of another lawyer without getting NOC from the previous lawyer.

3.Yes, there is no problem but will they two work together?

4. You change the lawyer, besides reporting/complaining this to the bar association

T Kalaiselvan
Advocate, Vellore
61997 Answers
800 Consultations

5.0 on 5.0

Ask a Lawyer

Get legal answers from top-rated lawyers in 1 hour. It's quick, easy, and anonymous!
  Ask a lawyer