I have ancestral properry. My brother is not ready to give a single inch in the property. My Advocate filed the partition suit for partition and possession of our ancestor property. Court has framed the issues. However I just came to know my share in the property is wrongly calculated and typed also wrongly by my ex-advocate. I came to know before few days regarding the wrong calculation and typing. I Therefore, filed application for amendment regarding area /share etc (after issues are framed and that also after 3 years. On hearing both sides, the Trial Court allwoed my application thus my area in suit is now increased. Aggrived defendant has now filed Writ Petition under Article 227 of Indian Constitution, in Mumbai High Court. The defendants (Petitioner in Writ) has taken the ground that "Allowing Application of Amendment is wrong and contradictory to the Law, as the said application was filed after 3 years and that also when the hearing is commenced. i have to file reply in this regards on or before 24th of Sep. 2019. My Questions - 1. what remedy is available in Law to challange the order, passed by TC allowing the application of amendment in plaint....................... (whether it is by WRIT under 227 only / REVISION / APPEAL) 2. What is Limitation to challange the said Order ? 3. I need a lawyer, who can appear in this Matter. (AoR + senior counsel). How I can search ? Thanks and Regards
The trial court has accepted your amendment in the original plaint which is a right decision. The issues are the same but the area increased and there is no major amendment which changes the relief.
An application can be filed against the trial court under article 227 which he has filed.
The court shall decide the application against the civil court.
Engage an advocate in the high court. You have to go to the bombay high court for that.
Regards
As against order allowing amendment of plaint appeal from order is to be filed
2) number of lawyers on this website from Bombay contact any of them
you have said Appeal is to be filed but did not mention whether Appeal can be filed in District Court or Directly in High Court. Secondly the petitioner (def in OS) has already filed writ under 227 indian constitution , then whether he is wrong when he files WRIT instead of preffering Appeal. please highlight once again. whether Appeal or Writ and if Appeal then Whether in District Court /or Directly in High Court. regards
Appeal from order is to be filed in district court
Writ is to be filed When
there is no alternative remedy available
Respected Sir, Do you want to say that , when the application of amendment (under O. 6 R 7 CPC) is allowed by Trial Court , then Aggrieved Party (if wants to challange) has to file Appeal. Therefore filing of WRIT is totally wrong and illegal ?. Secondly where one should file appeal ? either in District Court or Directly in High Court ? which is correct ?. Thanks
Take the plea that Petitioner has an alternative remedy of filing appeal against interlocutory order allowing amendment of plaint
appeal against trial court order should be filed in court of first appeal whether it is district court or HC
Appeal in the appeallate court. 30 days from date of order.
Recently SC has held, amendment may not be deny to secure end of justice and end of issue for ever. Writ may dismiss on citing that judgement.
Further filling writ to challenge trail court order is not maintianble when remedy is available through revision and appeal.
No limitation is challenge is through writ but must be in reasonable time.
Appeal before District court.
Hi
In your case, the aggrieved should exhaust his first remedy i.e., file Appeal.
You can contact any one of the lawyers from out of the panel of KAANOON.
Appeal should be filed before the concerned District Court, if the same does not have District Court then application lies to HC.
Filing Writ is not wrong/ illegal.
There is no legal infirmity in filing a writ petition under article 227 of constitution however the remedy lies in revision petition also against the orders of trial court.
The limitation for revision is three months, however it is not affected by limitation if writ is filed on it.
For a lawyer to appear in yor case, you may have to look for one in the Mumbai high court bar association or through your own advocate too.
Since this order was passed in the IA by the trial court, revision is applicable and appeal may not be proper option.
Revision can be filed before high court only and not before district court.
The court has already accepted the writ petition, i.e., if ther is no provision in law to accept writ on such matters, this would not have been taken on file by the high court.
For the decision passed in an IA, no appeal is maintainable, but a revision petition can be filed before high court.
Since revision petition can be filed before high court only , no appeal can be filed before district court.
There is no remedy available under law for challenging the order for amendment of plaint. That is why defendant have file writ petition for setting aside the order of trail court.
There is no limitation For filing the application for amendment of plaint under O 6 R 7. The application can be made any time during the proceeding of court and before the judgement.
You can ask you advocate in trail court to search a senior advocate you can represent your case in high court.
