1) it would be heard by single judge
2) earlier order is directory
Whether directory or mandatory and whether single bench or double bench
TC in a partition suit while deciding the application filed by plaintiff for restraining defendants from creating TP interest and changing nature of suit property, unfortunately TC rejected the said application. The aggrieved plaintiff filed Appeal and challenged the impugned order, whereby the LDJ set aside the order and restrained respondents from changing nature of suit party + creating TP interest. The Aggrieved respondents (The then Petitioners) filed WP whereby HC substituted the order of LDJ. The main part of order is below ................................. "learned counsel for the Petitioner in Writ Petition No…... on instruction state that "no third party rights would be created in respect of the flat bearing no…...consisting of………...in the building under construction and that the said flat would be kept vacant during the pendency of main suit. The statement made by the learned counsel for the petitioners is accepted as and by way of undertaking to this court. The impugned order passed by the learned District Judge in Misc.Civil Appeal No…...is substituted by this order. In my view, the interest of justice would be met with if the impugned order passed by the learned District Judge in MCA is substituted by this order. It is made clear that the learned trial judge while passing the final judgment in the pending suit filed by the respondent no.1 would be empowered to consider and grant appropriate relief in respect of the said flat, which is directed to be kept reserved." ...................................... The Respondent in WP filed review application stating that the respondent never gave permission for flat under any settlement. However HC rejected the review on the basis of the earlier order was passed in the presence of respondent as well as after hearing the statement of respondent's advocate in that proceeding. The respondent however started procedure in SC to challenge the HC order. Mean time, The plaintiff filed the appln was filed before TC asking more share in ancestral property on the basis of wrong calculation made while filing the suit. TC allowed amendment. The aggrieved defendants (Now Petitioner's in new WP) filed WP under 227 directly in HC, mentioning that, HC has substitutes order of LDJ and on that basis, plaintiff is entitled to get only that flat, which is kept reserved, if he succeeds in OS and not more than that. My Opinion: The previous order of HC, is directory and not mandatory being liberty is given to TC in view of "Consider and Appropriate Relief" used by HC in its order. Therefore, No single judge of HC can set aside, previous order, which is passed by a single judge of same HC, while deciding the New WP, wherein the order of allowing amendment appln is challenged. My Questions : 1. Whether New WP will be heard by DB of HC, as the new Single judge has no jurisdiction to see correctness of earlier order. 2. whether previous order of HC is directory /mandatory
Asked 4 years ago in Civil Law
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15 Answers
All orders are mandatory and there is nothing to be interpreted as directory.
So the substance of the order is to be complied with by court without any rider
An order of single judge can only be set side by division Bench of the same high court if there is LPA jurisdiction. Else SLP is the option.
In your case though I do not find much merit in appeal.
i dont agree. when liberty is given to Trial court "to consider and grant appropriate relief" . How TC is bound by the order. The Order is directory in view of sentence used by HC in order. If it would have been mandatory then why court will give liberty to TC. in short, the HC would have clearely said that TC has to grant the FLAT and nothing should be given more than FLAT, which is kept vacant. Secondly to give judgment in OS is totally TC's right which can not be interfered by HC. The TC either has to relief as per the prayers prayed by plaintiff or has to reject the suit but in any condition TC can not give the relief out side the prayers.
Asked 4 years ago
It is directory as HC has directed trial court to consider and grant appropriate relief
it is true that trial court cannot grant any reliefs not prayed for in the suit
Yes.
It's mandatory till setaside or stayed by DB
Orders passed by High Court are directory.
The orders passed by HC in your case are directory.
Yes TC cannot give any orders outside the prayers.
The jurisdiction of HC is decided by Admin / Judicial while allotting and other factors will be taken into consideration viz., pecuniary etc., before assigning to Single judge or Bench
Order of HC is directory and portion which has been reserved is in regard to undertaking and no title reserves. Relief will decide at the time of final hearing and order, who is entitle to relief and up to what extant.
Ground in WRIT is waste.
The new writ petition will be heard by single Judge of High court as its under the jurisdiction of that justice because the subject matter of new writ is different from previous writ.
Meant as an undertaking that property will not alienate and to prove his bonfide, some portion in property left intact.
But such undertaking is not good for you, status quo should be on whole property, consent by your advocate is a mistake.
And when will title in the property will decide by court and who will get that portion on partition will decide by court.
I understood that the order of HC is directory and npt mandatory in my case in view of particular words ,refecting in said order viz. "Consider and Grant Relief" . So when HC has directed TC to consider, it itself interpret that the order do not bind TC being not mandatory. Therefore, I wish to know from my posted question and the replies sent by you all, is as below. 1. In a partition suit, if I succeed in my suit and my prayer is for "physical partition and possession" of my share in suit land, then either TC will grant my this prayer or If I do not succeed in my suit TC will reject and dismiss /dispose the suit. But in any condition TC will not impose me to take FLAT as HC order says being not mandatory. The discretion of whether to grant relief of flat is solely or wholely on TC. Am I correct or please correct me if i am wrong. Thanks.
Asked 4 years ago
Your interpretation is absolutely correct
In partition suits, court first will pass preliminary decree whether you have share or not. Than will order partition on metes and bound basis.
Yes the power of partition is on the discretion of TC as per the order of high court.
But you can challenge the order through appeal in District court if you feel aggrieved by the order.
1. You may wait and watch.
2. It appears to be directory only.
If you are understanding the law better than the trial court or for that matter even high court then you may prefer an appeal against the high court order before supreme court
The trial court can decide about the case before it in its own discretion.
You cannot insist on the trial court to accept your prayers as it is.
If you are aggrieved by the decision of the trial court then you may have to prefer an appeal before the appropriate higher /appellate court.
Yes. Your understanding is correct