My father filed a partition suit for agricultural land in 2006 against his brothers (4 membsrs) and court passed preliminary decree in our(plaintiff) favour in 2011. my father died in 2009 and I am continuing the case after my father death. I filed a final decree proceedings in 2018 and advocate commissioner was appointed in 2019 for division of suit lands and fix boundaries. due to Covid the division of land could not be done in 2020 and 2021. After Covid, respondents died one after the another in 2021 and 2022. the division of land by advocate commissioner was stopped by defence lawyer saying that LRs of died respondents has to be brought to the record first till then survey of land cannot be continued. Bringing LRs of died respondents is going on since January 2022. but the main problem is, the case is posted hearing for 45-50 daya some times 2 months interval which is causing the delay. I asked my lawyer to appeal to the court to expedite the case my lawyer said "I cann`t ask the judge to expedite the case,the judge will be angry at me and that will impact my other cases" The judge is so slow that,on Jan 19th Judge gave Order for publication of notice to LRs of one of the respondents in news paper under order 5 rule 20, but same day refused to give order for notice Process order to LRs petition for another respondent. next NDH was on 2nd March, on that day,Judge gave exparte order for LRs of respondents published in Newspaper but again refused to give notice process order for another LRs respondents, saying only one order in a Hearing, two orders can`t be given in one Hearing. the case is now posted for June15th due to summer vacation holidays in May month !! My questions are: 1. Can my advocate appeal to the court to expedite the case as the OS is of 2006 and IA for final proceedings is of 2018, will this impact my advocate other cases before the Judge? 2. Can I file a WRIT petition case in High court if the trial court refuses to expedite the case? How many days a WRIT petition will take in High court of Telanaga to be decided? How much will a writ petition costs in High court of Telangan? Can I file a writ petition "Party in Person" taking hep of any lawyer? I am pursuing LLB, now in 2nd year. 3. "Rahul shah case Vs Jitendra Kumar Gandhi" case and guide lines to dispose final decree proceedings in 6 months has to followed by Trial court in my case? 4.I really wonder, When the defence lawyer could ground the final decree execution process saying CPC has to followed and LRs of the deceased respondents are not brought to record the survey of land cannot be continued till then, why my advocate cannot expedite the case using "Rahul shah case Vs Jitendra Kumar Gandhi" case and Guide lines by supreme court to the trial court to expedite the final decree proceedings and dispose in 6 months. Appreciate and Request the learned counsels to give answers in detail.
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you can request court to expedite the case if your father is a senior citizen
2) it should not impact other cases of your lawyer
3) local lawyer can guide you as to time taken for disposal of writ in HC
4) you can file writ in HC for expedited hearing
1. There is no provision in law for the advocate to file a petition for an expeditious trial before the same trial court, however he can file a petition before high court seeking an expeditious trial. Even that may not be effective owing to various reasons, because by expeditious trial means t he cannot avoid the procedural aspects or seek them to be dispensed.
If necessary your advocate can file an advance hearing petition to hear the case in advance for the reasons stated therein, if the court is satisfied with the reasons stated therein it may allow the case to be advanced for hearing.
2. Studying LL.B cannot be claimed as a right to file petition on your own before high court, however you can file a writ petition as a party in person provided you know the procedures of law as prescribed for high court practice.
Speedy trial is a fundamental right implicit in the guarantee of life and personal liberty enshrined in Article 21 of the Constitution and any accused who is denied this right of speedy trial is entitled to approach Supreme Court under Article 32 for the purpose of enforcing such right. Hence you can file a petition before high court as a party in person too provided you have sufficient reasons to state that the proceedings are intentionally delayed or protracted.
3. If the circumstances of the cited authority suits your own case situation, and the ruling given therein applies to your situation, then you can rely upon this to your case but of course you can be able to use this only at the time of final hearing in the proposed writ petition.
4. The procedures of law has to be followed while you are pursuing a case through court.
You cannot skip the procedures for the reasons you state.
It is pertinent to implead the LRs of the deceased respondent or else your case will be dismissed for not taking proper steps to implead the LRs of the deceased respondents.
you can ask your advocate the reasons, it is not known what your advocate has done on your case, hence without knowing the proper details no opinion can be rendered on your advocate's acts, if you don't trust your advocate anymore, you are at your liberty to change your lawyer at this moment too.
You can discuss the details of your case with any lawyer of this forum by getting their contact details from this forum and opt for phone consultation so that you can get more clarity on the subject.
You can file appeal in appellate court for expediting the matter. If appellate court is HC then you can file writ petition
There is already a court order for division of the property which is binding on the Legal Heirs and cannot question the order.
Division cannot be stop on this ground and it is duty of respondents to replace the LHs, any delay in this cannot be faulted on the plaintiffs.
Share in the property already attained finality by the preliminary decree.
If lower court do not effects the division than obtain order from HC by way of writ.
Dear client,
Yes, your advocate can appeal to the court to expedite the case, but it's up to the judge's discretion to grant the request. It's possible that the judge may not be happy about the request, but it's your advocate's duty to represent your interests and seek the best possible outcome for you. However, there is a risk that your advocate's other cases before the judge may be impacted if the judge perceives the request as inappropriate or aggressive.
You can file a writ petition in the High Court if the trial court refuses to expedite the case. However, the decision to file a writ petition should be taken only after considering all the relevant factors, such as the merits of the case, the potential costs involved, and the time and effort required. It's also important to note that a writ petition can take several months or even years to be decided, depending on the complexity of the case and the workload of the court. The costs of a writ petition can also vary depending on the nature of the case and the fees charged by the lawyer. If you are representing yourself in the writ petition, you may still need to consult with a lawyer to ensure that you are complying with all the relevant procedures and rules.
The "Rahul Shah case Vs Jitendra Kumar Gandhi" case and guidelines to dispose of final decree proceedings in 6 months should be followed by the trial court in your case. The Supreme Court has issued these guidelines to ensure that final decree proceedings are disposed of in a timely and efficient manner.
Your advocate may be hesitant to use the "Rahul Shah case Vs Jitendra Kumar Gandhi" case and guidelines to expedite the case because it's ultimately up to the judge's discretion. It's possible that the judge may feel pressured or perceive the request as inappropriate, which could negatively impact the outcome of the case. Your advocate should use their best judgment and consider all the relevant factors before making any requests to the court..
Yes you can file writ
In a partition suit for ancestral property filed in 2006 between and my father and his brothers, the preliminary decree for partition of ancestral property was passed in our favour in 2011. and the suit now in execution phase. due to death of respondents(my father brothers) the process to bring LRs to record is in progress. my fathers' has elder sister (died in 2004 May) and she was not made party to the suit and decree is passed for shares only between my father and his brothers. My father elder sister has a adopted son, one of my fathers brother daughter is married to that adopted son. my fathers brothers and sons are all united against me and want to drag the execution process. 1. can the adopted son now ask share for her deceased mother in the partition suit which is now in execution phase? suit property is ancestral property. 2. If yes, what will be the process, he has to file a new suit or can he implede in the same suit after being silent till the preliminary decree is passed? 3. If court allows the petition of adopted son petition for his mother share, process to send notices to all respondents, trial, witness, arguments all these stages will be there or share for the adopted son will be alloted as the partition is already decided in preliminary decree? appreciate detailed responses from learned counsels
As pointed out by the Supreme Court in Phoolchand's case, (AIR 1967 SC 1470) (supra) there is no prohibition in the Code of Civil Procedure against passing a second preliminary decree particularly in partition suits where shares specified in the preliminary decree have to be adjusted so long as a final decree has not been passed in that suit.
2) adopted son should make application for claiming his share on demise of mother
3) he would be entitled to sgare on property
1. It is a matter of their eligibility or entitlement for a share in the property.
As the court has already decided this issue in the preliminary decree, during which neither the adopted son nor his adoptive mother has contested the same so far, any petition to reopen the preliminary decree case may not be maintainable.
Besides it is also not known whether it was a valid adoption etc. Hence you can challenge his entry accordingly.
2. The answer suits this question too.
3. It depends on the developments which cannot be predicted at this stage, hence no proper opinion can be suggested now to your this question.
Yes.
Every member of the joint family who is entitled to a share, is a necessary party. If he does not impleaded himself as party on the ongoing case even after knowledge, his case is abated.
And above all, if he is made party in the suit and not shown as legal heir then this is concealing fact from the court and in such situation order obtained by playing fraud on court is null and void.
Dear client,
The adopted son of your father's elder sister cannot ask for a share for her deceased mother in the partition suit which is now in execution phase. This is because your father's elder sister was not made a party to the suit and the decree is passed only for shares between your father and his brothers. The adopted son of your father's elder sister has no legal right to claim a share in the ancestral property.
The adopted son cannot implead in the same suit after being silent till the preliminary decree is passed. He cannot file a new suit as well. The reason is that the partition suit has already been decided by a preliminary decree in 2011, and it is now in the execution phase. The adopted son had the opportunity to join the suit during the pendency of the suit, but since he did not join the suit, he has lost his right to claim a share in the ancestral property.
If the court allows the petition of the adopted son for his mother's share, the process to send notices to all respondents, trial, witness, arguments all these stages will be there. This is because the partition suit has already been decided by a preliminary decree, and the execution phase is ongoing. If the adopted son files a petition claiming his mother's share, it will be treated as a separate case, and the court will have to follow the usual procedure for deciding the case.
In conclusion, the adopted son of your father's elder sister has no legal right to claim a share in the ancestral property, since his mother was not made a party to the suit, and the decree was passed only for shares between your father and his brothers. If he files a petition, it will be treated as a separate case, and the court will have to follow the usual procedure for deciding the case.
1 yes he can
2 he can be impleaded in same suit if subject matter is same
3. The court will decide the same in change in circumstances