• Lawyer hasn't submitted the written statement in 120 days, chance of exparte?

My brother & His wife having divorce matters going on in India. they both have been disowned by my parents in 2018. 
In February 2019 She filed a Permanent injunction suit on my parent's self-acquired house, she is in possession. The court granted her an Interm injunction at first hearing.
My parents are in Canada with me. we have sent the power of attorney to handle the case, 
My parent's lawyer has not filed any written statement yet Also my parents have revoked the license of my brother's wife via legal notice in august, & file mandatory injunction suit with the fresh cause of action of not obliging with legal notice to vacant property.
in response to the mandatory injunction suit opposite party file application under rule 10 CPC to get stay on mandatory injunction suit. 

My questions are:
1. Is not filing a written statement in 120 days, Will strike out our defense and end up in ex parte orders? Against the actual owner of property & even Plaintiff as a daughter in law has no right on the self-acquired property of father in law?

2. Will mandatory injunction suit, with the cause of action of not obey the legal notice, could stay under rule 10 CPC?
3.Any other remedies or suggestions?
Asked 2 years ago in Property Law
Religion: Sikh

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17 Answers

1. Written Statement ought to have been filed by now. Since the time period of 90 days is over the court cannot take it on record now except if there are exceptional reasons.

2. You cannot be proceeded ex parte as long as you are contesting the matter, but the defence will be struck off.

3. Plaintiff as a daughter in law has a right to reside in the shared household even if it is owned by her father inl law. Your father should have filed a suit for eviction of his daughter in law.

4. Under Section 10 CPC the court can stay the matter only if a similar issue is pending in another court between the same parties.

 


Unless the pleadings are perused no opinion can be formulated on the application under Section 10 CPC.

Ashish Davessar
Advocate, Jaipur
30752 Answers
930 Consultations

5.0 on 5.0

If no written statement is filed court can proceed exparte against defendants 

 

2) take out notice of motion for condonation of delay in filing WS 

 

3) court would permit you to file WS subject to payment of costs 

 

4) daughter in law has no rights on self acquired property ofFIL 

Ajay Sethi
Advocate, Mumbai
85546 Answers
5730 Consultations

5.0 on 5.0

1. High Court's have held that Children & their Spouses have inherent "NO RIGHT" to occupy /stay /claim in the Parents /In-Laws property.  At Parents directions such Children /Spouses have to vacate their house, irrespective of whether the Parents are staying /occupying or not.

2. Apprehensively the matter is not being represented /defended property and IF written statement is not filed despite court directions (irrespective of 120 days) THEN the judge after waiting for reasonable time, would have no option but to take for granted that you do not have any objection on the stay application and consequently the stay would be granted. Of course this stay can again be vacated at the cost of repeated proceedings, costs and time loss.

 

 

Hemant Agarwal
Advocate, Mumbai
5598 Answers
25 Consultations

5.0 on 5.0

File eviction suit that your parents needs the property to stay at the old age and vacate the property as the earliest.

No mandatory injunction suit will not applicable. Kindly file case under senior citizenship act and ask to vacate the property.

Ganesh Kadam
Advocate, Pune
12219 Answers
167 Consultations

4.9 on 5.0

1. I am not sure what is your lawyer ding for so long by no filing WS. Though the delay can be condoned but curt is to be made satisfied with the delay caused.

2. If your parents are the exclusive owner of the house in which her husband is not the co owner then their daughter in law has no right of residence therein , let alone any right of share. So apart form filing WS file a petition under order 7 rule 11 of cpc for rejection of plaint.

It appears this suit is not properly dealt with by any competent lawyer so far.. The suit has no merit and hence consult with someone who has knowledge if civil suit in property matters. 

Devajyoti Barman
Advocate, Kolkata
22515 Answers
373 Consultations

5.0 on 5.0

1. The plaintiff has no rights in her father in law's property. 

The lawyer can file the written statement even now hence you may insist your lawyer to do it immediately. 

2. No, it has to be contested and the court will pass orders only on merits that too after hearing both the sides. 

3. The case filed by her against your parents is not maintainable but you have to challenge the grounds properly. 

T Kalaiselvan
Advocate, Vellore
75676 Answers
1313 Consultations

5.0 on 5.0

Court sometimes accepts the same with delay and condone it if they have a reason for filing delayed statement

2. You can try the same

Prashant Nayak
Advocate, Mumbai
25386 Answers
65 Consultations

4.4 on 5.0

1. See firstly since there is delay is filing the written statement the court may close right of same though upon application it nay allow ring same showing sufficient reason.

2. She has no right over the suit property.

3. The injunction suit are under order 39.

 

Shubham Jhajharia
Advocate, Ahmedabad
25518 Answers
151 Consultations

5.0 on 5.0

120 days for filing written statements is a limitation for commercial suit, but in civil suit also, this much delay is not feasible. Court will impose cost for delay in filling WS. And your advocate approach is conventional, not filing WS to delay the suit of wife.

And she has already granted interim relief, your delay is benefiting her.

Daughter is law has no say in in laws property, law is clear and still she is enjoying interim relief means your advocate is lacks capability to defend.

And instead of fresh suit, you should have filed cross claim in same suit, WS not yet filed, so better file cross claim.

Cause of action is same in both suit, so court may stay your suit.

Yogendra Singh Rajawat
Advocate, Jaipur
21462 Answers
31 Consultations

4.4 on 5.0

- WS can be submitted with application of condonation of delay. Court allow, if proper reason stated.

- Legal Notice does is sent with prejudice contention so would not fulfill S 10 CPC

- Pls feel free to connect to discuss other options

 

Regards

 

Vivek Arya

Vivek Arya
Advocate, Gurgaon
741 Answers
6 Consultations

5.0 on 5.0

1. limitation to file written statement in court begins to run against the defendant after the court summons are duly served on the defendant

2. so first ascertain whether the court summons have been served or not on your parents

3. does your sister in law have knowledge about your parents' Canada address? or does your parents have any address other than the suit property, in India, where the SIL can deliver the court summons. Check that

4. if summons have been served and time for filing WS has lapsed, then your parents will have to take out an application u/s 5 of the Limitation Act for condoning delay in filing the WS. Keep the WS ready. If your delay application is allowed then the WS can be filed immediately in court

5. what is rule 10? there must be an order preceding that rule. As in, its generally Order ____ Rule 10. So check from your lawyer which order does the Rule 10 fall in 

Yusuf Rampurawala
Advocate, Mumbai
6638 Answers
63 Consultations

5.0 on 5.0

1. There is good chance of its going ex-parte. However, one more chance can be sought from the Court on the ground that your parents stay abroad and could not come on time to attend to the matter.

 

2. There can not be mandatory injunction suit. It might be eviction suit followed by mandatory injunction. Yes, she can pray for staying any such injunction by the Appellate Court.

 

3. Eviction Suit is to be filed and the Courts are to be attended by the POA holder of your father regularly.

 

4. It is a good case to win.

Krishna Kishore Ganguly
Advocate, Kolkata
26290 Answers
726 Consultations

5.0 on 5.0

the Court can proceed ex parte against defendant. 

Rule 1 Order VIII CPC states that the time period to file written statment is 30 days, it can be extended to 90 days after seeking permission of the court.

Mohammed Mujeeb
Advocate, Hyderabad
19012 Answers
31 Consultations

4.5 on 5.0

- As per law, A son or daughter-in -law having no legal right to live in his parents' house , and they can reside there only at their mercy of parent . and further the parent having legal right to dispossess them from his self acquired property legally. 

- Further ,  A written statement is the pleading of the defendant wherein he deals with every material fact alleged by the plaintiff along with any new facts in his favour or that takes legal objections against the claim of the plaintiff.

1. No, even now , you can file written statement with an application for condonation of delay. 

- After imposing some cost , the court will accept the same. But , if no applicaton will be filed, then court will strike out defense .

- In case of non-appearance from your side, court will pass ex-parte order. 

- If, you will not file your defense/reply of pleading by way of written statement , then court will assumed that you have no interest to contest the case . 

2. Your father should file his suit for Mandatory Injunction against his son & daughter-in -law for getting possession from them , on the ground of cancellation of Licence given to them. 

 

Good luck and dont forget to rating Positively. 

Mohammed Shahzad
Advocate, Delhi
8791 Answers
94 Consultations

5.0 on 5.0

It can struck of your defence in the case if your lawyer doesn't file written statement even after taking 3 opportunities.

It will depend on discretion of court and your prima facie evidence for getting the stay. 

Your parents should return to India for some time and file suit for eviction against her daughter in law under senior citizen act

 

Mohit Kapoor
Advocate, Rohtak
10688 Answers
7 Consultations

5.0 on 5.0

You have to file the ws within a reasonable time. If not you jave to give adequate reasons. Otherwise the court may reject the ws.

You should pursue your case diligently and she cannot live in her father in law's property. File a revision against the interim injunction.

Regards 

Rahul Mishra
Advocate, Lucknow
13335 Answers
49 Consultations

5.0 on 5.0

  1. As per the information mentioned in the present query, makes it clear that the lawyer has not filed the written statement even after 120 days.
  2. Yes, there can be chances of getting your right closed for filing the written statement (but surely it doesn’t mean that there would be ex parte) and evidence may get start after framing of issues.
  3. But, there are judgments in which WS can be filed even after 120 days with sufficient reasons along with an application of condonation of delay with WS.
  4. And this not being the commercial suit, but a matrimonial one, judge may allow the same.

Sanjay Baniwal
Advocate, South Delhi
5464 Answers
13 Consultations

5.0 on 5.0

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