• How to proceed in Lower court when HC has called records/file

Dear Sirs/ma'ms

I filed case under 13 on cruelty grounds. In my Case 2 issues were framed, 1st divorce may be granted and 2nd Jurisdiction of the case. 

Judge heard 2nd issue first and gave order that jurisdiction exists and thereby we won on Jurisdiction. But 1st issue is still pending. In meantime opposition moved to HC against jurisdiction of the case. The case admitted without our knowledge even we filed caveat. HC called record from lower court after admitting the case. But has not given stay order till date.

We want that case at lower court may continue to proceed. Other party is not allowing to proceed and asking Judge to wait till HC decides the matter, Also now file (Lower Court Record) has been called by HC. How can we continue to proceed in Lower Court and how we peruse judge to start hearing on 1st issue.
HC ORDER IS AS QUOTED BELOW-
" 1. Heard.
2. Admit.
3. Issue notice to respondent by registered post A.D. as
well as Courier as approved by Office Memorandum dated
15.12.2015 under Order V, Rule 9(3) C.P.C. returnable at
an early date.
4. Call for the record of the Court below.
5. Steps be taken within a week."
Asked 9 months ago in Family Law from Varanasi, Uttar Pradesh
Religion: Hindu
1) since no stay has been granted by HC proceedings in trial court can continue 

2)you can draw trial court attention to order passed by HC wherein no stay has been granted

3) also mention that appeal in HC would take years to be disposed of 

4) ultimately it is for trail court to take call whether to proceed or stay the matter pending hearing and final disposal of appeal 
Ajay Sethi
Advocate, Mumbai
23116 Answers
1214 Consultations
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May be there was a defect in your caveat petition filed in the HC, due to which it could not be registered. Be that as it may, it will be judicial impropriety on the part of the lower court judge now to proceed with the case in view of the fact that the HC has called the record therefrom.
Ashish Davessar
Advocate, Jaipur
18057 Answers
445 Consultations
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Since no stay is granted there is no impediment for lower court to proceed on th case .
However since the lower court record would be called for in the appeal court, the lower court will be bereft of its own record for commencement of trial.
Hence virtual stay would be imposed till the appeal is hard and disposed of.
Devajyoti Barman
Advocate, Kolkata
5154 Answers
54 Consultations
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1) you can move HC to expedite hearing and final disposal of appeal 

2) there is huge backlog of cases in trial court . HC can direct case before trial court be disposed of expeditiously case cannot be completed in 30 days 
Ajay Sethi
Advocate, Mumbai
23116 Answers
1214 Consultations
5.0 on 5.0
Yes this can be argued before the HC as and when the appeal comes up for hearing.
Ashish Davessar
Advocate, Jaipur
18057 Answers
445 Consultations
5.0 on 5.0
In your case, the high court has taken the petition on file and has issued notice to respondent calling for counter and also has called for records from lower court. If the lower courts submits the records in its possession, then the case may remain unattended based on the dummy records before the trial court.
So once there is no records int he trial court, the trial court may  not be able to proceed further in the case on the basis  of nil records.
T Kalaiselvan
Advocate, Vellore
13931 Answers
127 Consultations
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 that is there any way to appeal in HC or SC and request that  First Appeal filed by opponent is just to linger on the whole case and therefore Court may grant stay in the process of First Appeal and direct Lower/Family court to first complete the whole case within 30 days and then hearing on first appeal filed by respondent in HC may be heard.
There is no provision in law to seek stay of appeal procedures for the reasons stated by you. 
T Kalaiselvan
Advocate, Vellore
13931 Answers
127 Consultations
5.0 on 5.0

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