• Revision in high court against dismissal of interim relief for residence right rejected under DV Act

Dear sir 
I am ex army officer lady retired in 2015 August . My husband died in 2006 .His elder brother also lived with us in house taking advantage of my army postings out of Delhi most of the time .After death they go quietly a fabricated will probated which was got dismissed by me form same court .The will probate is now pending in a Delhi court as a civil case and I also filed counter case to declare will null and void and give eviction order 

On retirement I asked them to vacate one room so i could stay as I have no home in Delhi and I am only class I legal heir to my husband surviving . But his brothers family is force ably occupying it by entering in friendly manner and then fabrication a will.

UI filed right of residence appeal in saket Delhi magistrate court under right of residence clause. and also made interim relief application which magistrate dismissed with main point that giving any possession at interim stage would mean giving possession of house .That is very strange as bond could be asked from me by court to vacate on final judgment being against me 

I was advised by lawyers that sessions appeal cannot be made against interim relief . Only revision lies in High court plus i should invoke inherent power of high court to grant relief looking at m,y age 59 years and ex army officer having no pave to live as case is dragged since 3 years now without any relief and I am on road. 3 years are gone since filing DVAct complaint in magistrate court 

But Ld high court judge today asked why an appeal was not made in lower court against interim rejection 

short date is given for 2 days i.e day after tomorrow to study law and revert to court as court wants to satisfy about its jurisdiction. I am surprised that inherent power of high court have to be satisfied to court and that revision against interim orders lies only in high court under revision jurisdiction 

Kindly advise what is position . Specially such rejection of interim relief application rejected by magistrate about very important issue of residence under domestic violence act .

This case is deliberately complicated by husbands family to enjoy free accommodation in Delhi due to death of husband in 2006 and an alleged will produced by his brother in favor of his children made allegedly by my husband .This will probate as explained already failed once and recalled by court .
Asked 4 years ago in Family Law
Religion: Hindu

2 answers received in 10 minutes.

Lawyers are available now to answer your questions.

9 Answers

29. Appeal.—There shall lie an appeal to the Court of Session within thirty days from the date on which the order made by the Magistrate is served on the aggrieved person or the respondent, as the case may be, whichever is later. tc "29. Appeal.—There shall lie an appeal to the Court of Session within thirty days from the date on which the order made by the Magistrate is served on the aggrieved person or the respondent, as the case may be, whichever is later."

2) appeal can be filed in sessions court against order passed by magistrate in DV case

3) Sub Section (4) of Section 401 of the criminal procedure Code provides that where under this Code an appeal lies and no appeal is brought, no proceeding by way of revision shall be entertained at the instance of the party who could have appealed. Hence, it is clear from this Section 401 (4) of the Code that where an appeal lies and no appeal is brought, no proceeding by way of revision shall be entertained. Section 29 of the D.V. Act clearly provides for appeal against the order made by the Magistrate.

4) In Amit Sundra's case (supra), Hon'ble Delhi High Court has observed that D.V. Act under which the Magistrate has passed the interim order, specifically provide the remedy by way of appeal or by way of modification, alteration etc. It was further observed that when specific remedy by way of appeal or by way of alteration, modification or revocation of any order, has been provided under the Act, prima facie, the present petition under Art. 227 of the Constitution of India, under these circumstances is not maintainable before this Court.

In Braham Pal Arya's case (supra), Hon'ble Delhi High Court has held that against the order on application under Section 23 D.V. Act, an appeal under Section 29 of the said Act would be maintainable.

11. In Abhijit Bhikaseth Auti v. State of Maharashtra and Anr., 2009 CRI. L.J. 889 Bombay High Ourt categorically held that an appeal will lie against the order passed under Sub-section (1) and Sub-section (2) of the Section 23 of the said Act passed by the learned Magistrate.

12. In S. Srikanth's case (supra), Hon'ble Madras High Court has held that inasmuch as, as per Section 29 of the Act, the right of appeal is provided to the revision petitioner as against the order dated 10.02.2011 passed by the learned Judicial Magistrate, under Section 23 of the Act, this Court comes to an inescapable conclusion that the instant revision petition filed by the petitioner / husband (first accused) is per se not maintainable in the eye of law, because of the fact that the Special Act viz., 43 of 3005, overrides the general remedy provided under Criminal procedure Code.

Ajay Sethi
Advocate, Mumbai
87898 Answers
6207 Consultations

5.0 on 5.0

Hello,

You may refer to the following points:

Such like matters frequently arise before the High Courts. We sum up our conclusions in a nutshell, even at the risk of repetition and state the same as hereunder:-

(1) Amendment by Act No.46 of 1999 with effect from 01.07.2002 in Section 115 of Code of Civil Procedure cannot and does not affect in any manner the jurisdiction of the High Court under Articles 226 and 227 of the Constitution.

(2) Interlocutory orders, passed by the courts subordinate to the High Court, against which remedy of revision has been excluded by the CPC Amendment Act No. 46 of 1999 are nevertheless open to challenge in, and continue to be subject to, certiorari and supervisory jurisdiction of the High Court.

(3) Certiorari, under Article 226 of the Constitution, is issued for correcting gross errors of jurisdiction, i.e., when a subordinate court is found to have acted (i) without jurisdiction - by assuming jurisdiction where there exists none, or (ii) in excess of its jurisdiction – by overstepping or crossing the limits of jurisdiction, or (iii) acting in flagrant disregard of law or the rules of procedure or acting in violation of principles of natural justice where there is no procedure specified, and thereby occasioning failure of justice.

(4) Supervisory jurisdiction under Article 227 of the Constitution is exercised for keeping the subordinate courts within the bounds of their jurisdiction. When the subordinate Court has assumed a jurisdiction which it does not have or has failed to exercise a jurisdiction which it does have or the jurisdiction though available is being exercised by the Court in a manner not permitted by law and failure of justice or grave injustice has occasioned thereby, the High Court may step in to exercise its supervisory jurisdiction.

(5) Be it a writ of certiorari or the exercise of supervisory jurisdiction, none is available to correct mere errors of fact or of law unless the following requirements are satisfied : (i) the error is manifest and apparent on the face of the proceedings such as when it is based on clear ignorance or utter disregard of the provisions of law, and (iii) a grave injustice or gross failure of justice has occasioned thereby.

(6) A patent error is an error which is self-evident, i.e., which can be perceived or demonstrated without involving into any lengthy or complicated argument or a long-drawn process of reasoning. Where two inferences are reasonably possible and the subordinate court has chosen to take one view the error cannot be called gross or patent.

(7) The power to issue a writ of certiorari and the supervisory jurisdiction are to be exercised sparingly and only in appropriate cases where the judicial conscience of the High Court dictates it to act lest a gross failure of justice or grave injustice should occasion. Care, caution and circumspection need to be exercised, when any of the abovesaid two jurisdictions is sought to be invoked during the pendency of any suit or proceedings in a subordinate court and the error though calling for correction is yet capable of being corrected at the conclusion of the proceedings in an appeal or revision preferred there against and entertaining a petition invoking certiorari or supervisory jurisdiction of High Court would obstruct the smooth flow and/or early disposal of the suit or proceedings. The High Court may feel inclined to intervene where the error is such, as, if not corrected at that very moment, may become incapable of correction at a later stage and refusal to intervene would result in travesty of justice or where such refusal itself would result in prolonging of the lis.

(8) The High Court in exercise of certiorari or supervisory jurisdiction will not covert itself into a Court of Appeal and indulge in re-appreciation or evaluation of evidence or correct errors in drawing inferences or correct errors of mere formal or technical character.

(9) In practice, the parameters for exercising jurisdiction to issue a writ of certiorari and those calling for exercise of supervisory jurisdiction are almost similar and the width of jurisdiction exercised by the High Courts in India unlike English courts has almost obliterated the distinction between the two jurisdictions. While exercising jurisdiction to issue a writ of certiorari the High Court may annul or set aside the act, order or proceedings of the subordinate courts but cannot substitute its own decision in place thereof. In exercise of supervisory jurisdiction the High Court may not only give suitable directions so as to guide the subordinate court as to the manner in which it would act or proceed thereafter or afresh, the High Court may in appropriate cases itself make an order in supersession or substitution of the order of the subordinate court as the court should have made in the facts and circumstances of the case.

Though we have tried to lay down broad principles and working rules, the fact remains that the parameters for exercise of jurisdiction under Articles 226 or 227 of the Constitution cannot be tied down in a straitjacket formula or rigid rules. Not less than often the High Court would be faced with dilemma. If it intervenes in pending proceedings there is bound to be delay in termination of proceedings. If it does not intervene, the error of the moment may earn immunity from correction. The facts and circumstances of a given case may make it more appropriate for the High Court to exercise self-restraint and not to intervene because the error of jurisdiction though committed is yet capable of being taken care of and corrected at a later stage and the wrong done, if any, would be set right and rights and equities adjusted in appeal or revision preferred at the conclusion of the proceedings. But there may be cases where 'a stitch in time would save nine'. At the end, we may sum up by saying that the power is there but the exercise is discretionary which will be governed solely by the dictates of judicial conscience enriched by judicial experience and practical wisdom of the Judge.

and refer to the judgment of Surya Devi available at the following link:

https://indiankanoon.org/doc/1016548/

Through the principles laid down in this case, you will have to establish the jurisdiction.

Regards

Reply to follow up:

Yes you can go to HC against.

I have shared the entire judgment with you, which contains the law. Since I am not aware about the entire facts and content of petition therefore you may read the judgment and apply the same to your facts.

Regards

Anilesh Tewari
Advocate, New Delhi
17940 Answers
377 Consultations

5.0 on 5.0

Mam under section 29 DV act the appeal lies against both the interim and final order therefore you should have filed an appeal before the sessions court the high court can reject the petition on the ground of the alternate remedy was there therefore approach appropriate court,

as the act is specific see in my view best possible at this stage is that pray before court to allow you to file an appeal before sessions court and expedite the proceedings of same as you are of 59 age and suffering the court will pass such order.

Further it can be argued the inherit jurisdiction for purpose of the justice is vide enough to entertain the petition even if there is alternate remedy.

Shubham Jhajharia
Advocate, Ahmedabad
25516 Answers
179 Consultations

5.0 on 5.0

The apex Court clarified that the remedy under the certiorari or supervisory jurisdiction of the High Court would be available only if the petitioner was able to point out that the trial court committed an error which was apparent in the face of the proceedings and secondly, that a grave injustice has been occasioned thereby.

So, High Court can assume jurisdiction only if you are able to prove that Grave miscarriage of justice has been caused to you by the impugned order of trial court.

Siddharth Jain
Advocate, New Delhi
5925 Answers
101 Consultations

5.0 on 5.0

1. This is not an interim order passed by the Court lower.

2. It is an order rejecting your application for interim order which could have been challenged before the appellate court.

3. You shall have to take the plea that since it is a very important issue with you for your staying in to your own house, you have approached the High Court.

Krishna Kishore Ganguly
Advocate, Kolkata
26602 Answers
726 Consultations

5.0 on 5.0

An appeal against the DV interim order can be filed before the sessions court under section 29 of the act.

If the sessions court dismisses the appeal then a revision can be filed before high court under section 397 cr.p.c.

a Court of Sessions before which an appeal has been prescribed under Section 29 of the DV Act, 2005, is a criminal court inferior to the high court and, therefore, a revision against its order passed under Section 29 will lie 27 to the high court under section 397.cr.p.c....

The remedy of an appeal had been provided under Section 29 of the Act, 2005, before a Court of Sessions, which means a Court of Sessions referred under Section 6 read with Sections 7 and 9 of the CrPC, without saying anything more as regards the procedure to be followed in such appeal, and there being nothing to the contrary in the Act of 2005, which may be indicative of exclusion of the application of the provisions of CrPC to such an appeal, the normal remedies available against a judgment..and order passed by a Court of Sessions by way of appeals and revisions prescribed under the CrPC before the High Court, are available against an order passed in appeal under Section 29 of the Act, 2005.”...

Without seeing the petition averments and the orders passed by the trial court no concrete opinion can be rendered on the judgment passed by the trial court.

In my opinion, without exhausting the remedies available before the appellate court, and the high court a petition under section 482 cr.p.c before high court for inherent powers may not be maintainable.

If you have not understood the opinion given by various lawyers and expect the reply only to appease yo then it is very sad that you will not get any releif anywhere when you travel on a misguided direction.

The DV case against them was unnecessary, instead yo should have filed an eviction suit against them in the civil court.

Your relief is available in the civil court and not in the DV case.

The high court has rightly pointed that the aggrieved decision passed by the magistrate court could have been appealed in the sessions court itself under section 29 of DV act, whereas you failed to exhaust that remedy before approaching high court.

If a relief is provided in law as per provisions therein, then it would be proper to follow that route and not a route as per your fancies and whims.

There is no use of grumbling against the law or the judgement when you have chosen the wrong provisions of law and wanted to avail the benefits in a short cut method.

First become aware of the law, the provisions and the benefits or reliefs you would be looking for through the said laws. Understand the law, ascertain your problem and the relief sought and the path to approach for the relief, there is no point in getting frustrated over the issues when you have not followed up the correct procedure of law,.

You could have taken a second opinion or guidance from a different lawyer before hastily jumping into wrong conclusions.

T Kalaiselvan
Advocate, Vellore
78057 Answers
1543 Consultations

5.0 on 5.0

Dear Client,

You are victim of poor advise, as for now whatever the order of court, seek direction of early disposal of cases.

HC can hear revision on interim orders and appeal too.

For revision, find SC judgement in below link evoking inherent power.

.

https://timesofindia.indiatimes.com/india/HCs-can-hear-revision-plea-on-interim-orders-SC/articleshow/134381.cms

If you will go through link will find, SC court has allowed HC to hear revision plea on interim orders and interim order passed by trial court.

Supervisory jurisdiction of the High Court would be available only if the petitioner was able to point out that the trial court committed an error which was apparent in the face of the proceedings and secondly, that a grave injustice has been occasioned thereby.

Read Sec 115 CPC.

Yogendra Singh Rajawat
Advocate, Jaipur
21481 Answers
31 Consultations

4.4 on 5.0

1. Your lawyers advised you wrongly. Under DV Act every order including interim order passed by the magistrate is appealable before the Sessions Court. This is settled law. You cannot bypass the Sessions Court and move the High Court.

2. Your petition before the High Court is liable to be rejected as there is an alternate statutory remedy of appeal.

3. It is settled law that inherent jurisdiction cannot be invoked when there is an alternate statutory remedy engrafted in the statute itself. So no reason for you to be surprised by what the High Court has observed. The HC judge was magnanimous enough to not to dismiss the petition on the first hearing with costs. Such a petition is liable to be dismissed with heavy costs.

4. Withdraw your revision and file the appeal before Sessions Court.

Ashish Davessar
Advocate, Jaipur
30761 Answers
971 Consultations

5.0 on 5.0

Dear Client

In your case as per law no appeal or revision lies against interlocutory order. You may file CM main in High court for this.

Adv Vikas

Vikas Khatri
Advocate, Delhi
179 Answers

Not rated

Ask a Lawyer

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