Reply to application for restoration of maintenance petition with supporting affidavit
Cites the IPC, CrPC or Evidence Act. For matters from 1 July 2024, use the BNS, BNSS or BSA.
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IN THE MATTER OF:-
Applicant's name: APPLICANT
VERSUS
Respondent's name: RESPONDENT
REPLY TO THE APPLICATION FILED BY THE COMPLAINANT / APPLICANT SEEKING NECESSARY ORDERS AND DIRECTIONS FOR RESTORATION OF THE ABOVE-NOTED MATTER TO ITS ORIGINAL FILE NUMBER.
MOST RESPECTFULLY SHOWETH:-
1.That the application moved by the applicant / complainant before this Hon'ble Court suppresses material facts, and the present application is therefore liable to be dismissed.
2.That after withdrawal of the aforesaid proceedings by the applicant, in terms of the settlement arrived at between the parties, the applicant and the respondent lived together for a period of time, and in terms of the settlement, in lieu of maintenance, permanent alimony and all disputes arising out of the marriage, the mother (since deceased) of the respondent executed a gift deed in respect of the property bearing Property description, jointly in favour of the applicant as well as the respondent, to the extent of 50% of the property.
3.That in terms of the settlement, the applicant was required to withdraw all litigation and also to give her consent for the quashing of the FIR which had been registered at her instance; however, during the course of the proceedings before the High Court of for quashing of the FIR, the applicant resiled from her statement, as a result of which the petition was disposed of without any order being passed qua the quashing.
4.It is most humbly submitted that the present applicant, while concealing the factum of the settlement of all her claims qua maintenance, alimony and other disputes arising out of the marriage, as well as the execution of the gift deed in her favour in respect of 25% of the aforesaid property, has moved the present application, and the same is liable to be dismissed on this ground alone; further, the applicant cannot seek maintenance unless she revokes the gift deed.
5.That in view of the fact that the applicant reunited with the respondent after the withdrawal of the aforesaid proceedings, and thereafter, on account of the resiling by the complainant / applicant from the settlement, a fresh cause of action would arise for the filing of a fresh application under Section 125 Cr.P.C., rather than the restoration of the earlier petition, which was based upon the earlier cause of action.
6.That it is further submitted that, in view of the judgment passed by the High Court of in the case of Cited case party name. Cited case citation, wherein the applicant was required to furnish an affidavit along with the application / petition under Section 125 of Cr.P.C., the applicant in the present case has sought restoration without filing the said affidavit, and the application is therefore liable to be refused.
7.That there is no dispute with the case law relied upon by the applicant in the application for restoration; however, the facts of the present case are altogether different, and the respondent has duly complied with the terms of the settlement. The applicant / complainant cannot, therefore, put the respondent in double jeopardy, and the present application is liable to be dismissed.
8.That the present case of the applicant does not fall within the purview of simple restoration; rather, the applicant must first satisfy this Hon'ble Court on the issue of the maintainability of the proceedings after the settlement, despite compliance on the part of the respondent.
9.That the orders passed by various courts in the litigations between the parties are not denied; however, the remainder of the allegations levelled by the applicant are denied in toto.
10.That in view of the aforesaid facts and circumstances, this Hon'ble Court may kindly decide the issue of the maintainability of this application first, at this stage itself, in view of the fresh cause of action with respect to the settlement / reunion / alleged new cause of action.
11.That it is most humbly submitted that the respondent is not liable to pay the arrears of maintenance, nor maintenance for the period from the date of withdrawal of the proceedings till the date of the order that may be passed by this Hon'ble Court, in view of the aforesaid facts and circumstances.
12.It is further submitted that, in view of the changed circumstances, and in view of the fact that the applicant has received a gift deed in respect of 25% of the aforesaid property — which was executed solely by virtue of the settlement arrived at between the applicant, the respondent and his family members in respect of the disputes arising out of the marriage, including the issue of the maintenance of the applicant as well as her daughter — should this Hon'ble Court hold that the application moved by the applicant is maintainable, the quantum of maintenance is to be decided afresh after the filing of affidavits of income by both the parties, in view of the direction passed by the High Court of, and keeping in view the change in the source of income.
13.That the FIRs mentioned in the application are false and motivated, and the matters are still under investigation / trial; the complainant / applicant has habitually lodged false and frivolous complaints against the respondent and his family members.
14.That the contents of the application and the prayer clause, along with the sub-paragraphs of the application, are redundant and irrelevant to the subject petition, as explained hereinabove, and the same are therefore denied in their entirety. The applicant is not entitled to any of the reliefs claimed.
P R A Y E R :-
It is, therefore, most respectfully prayed that the application of the applicant may kindly be dismissed with heavy costs in favour of the answering respondent and against the applicant, for dragging the answering respondent into frivolous litigation, in the interest of justice, equity and in the circumstances of the case.
Any other order or orders may also be passed as this Hon'ble Court may deem fit and proper in the interest of justice.
Place (e.g., Delhi)RESPONDENT
THROUGH
Respondent's name
DATED: Date of signing
Respondent's signature
ADVOCATES
IN THE HON'BLE COURT OF SH. Judge's name, LD. Judge's designation JUDGE, FAMILY COURT, Family court number COURT, Place (e.g., Delhi).
MISC. APPLICATION NO. Miscellaneous application number OF Year of the miscellaneous application
IN
MT. CASE NO. Matrimonial case number
IN THE MATTER OF :-
Applicant's name: APPLICANT
VERSUS
Respondent's name: RESPONDENT
AFFIDAVIT
Affidavit of Mr. Deponent's name, S/o Deponent's father's name, R/o Deponent's address, who do hereby solemnly affirm and declare as under:-
1.That I am the respondent in the above-noted matter; I am well conversant with the facts of the case and am also competent to swear the present affidavit.
2.That the contents of the accompanying reply to the application have been drafted by my counsel as per my instructions, and the contents thereof have been duly read over and explained to me in my vernacular language; having fully understood the contents thereof, I state that they are true and correct to my knowledge, no part of them is false and nothing material has been concealed therefrom.
DEPONENT
VERIFICATION:-
Verified at Place (e.g., Delhi) on this Date of verification, Month and year of verification, that the contents of my above affidavit are true and correct to my knowledge, no part of it is false and nothing material has been concealed therefrom.
DEPONENT
IN THE HON'BLE COURT OF Judge's name, Court name, DISTRICT District name, State name, Place (e.g., Delhi).
IN THE MATTER OF:-
First party's nameVS. 1. Deceased first party's name (Deceased)
Through its L.Rs.
2.DR. Legal heir's name
OBJECTIONS / REPLY ON BEHALF OF DR. Deceased second party's name TO THE APPLICATION MOVED BY THE 1st PARTY THROUGH ITS LEGAL HEIR.
To,
The Hon'ble Magistrate.
MAY IT PLEASE YOUR LORDSHIPS :-
1.That the second party is filing a short reply / objections qua the application moved by one of the legal heirs of the 1st party; however, the second party reserves his rights, in the event this Hon'ble Court finds that the application moved by the 1st party is maintainable.
2.That the application moved by the first party is liable to be dismissed on the following grounds:-
A.That the applicant, namely Mr. Applicant legal heir's name, has not moved any application seeking his impleadment as a party to the proceedings. Furthermore, Mr. Applicant legal heir's name has not disclosed the details of the other legal heirs, if any, of Mr. Deceased's name (deceased).
B.That Mr. Applicant legal heir's name has deliberately and intentionally concealed the fact of proceedings pending before the Hon'ble Court of Judge's designation, Judge, Court name Courts, Delhi, wherein the applicant, namely Mr. Applicant legal heir's name, is appearing as one of the legal heirs of the first party. Moreover, the said litigation pertains solely to the plot which is the subject matter of the proceedings pending before this Hon'ble Court.
C.That, pertinently, contempt proceedings may be instituted against the applicant, namely Mr. Applicant legal heir's name, who has moved the present application despite the fact that a "status quo" order has been passed by the Ld. Magistrate's designation, Court name, with respect to the subject land vide order dated Day of status quo order date/Month of status quo order date/Year of status quo order date.
D.That, in addition, it is further submitted that the second party, i.e., the applicant, challenged the order passed under Sections 145(1) and 146(1) of Cr.P.C. by this Hon'ble Court before the Hon'ble Court of the District and Sessions Judge, District courts name Courts, Delhi, and the same was disposed of by the Hon'ble Sessions Court vide order dated Day of sessions court order date/Month of sessions court order date/Year of sessions court order date, whereby the Hon'ble Court directed that the rights of the parties be adjudicated in the pending civil litigation. That Mr. Applicant legal heir's name has not informed this Hon'ble Court of the pendency of the civil litigation qua the subject plot. In view of the same, appropriate proceedings may be initiated against him for suppressing material information in order to obtain relief from this Hon'ble Court.
E.That, besides the above, Mr. Applicant legal heir's name (one of the legal heirs of the first party) has not disclosed the registration of an FIR by the second party, namely Dr. Second party's name, against Mr. Deceased person's name, Mrs. Deceased person's name (both deceased), and their accomplice, namely Mr. Accomplice's name, and that the said proceedings are pending adjudication before the Hon'ble Court of the C.M.M., CMM court name, and are fixed for Day of hearing date/Month of hearing date/Year of hearing date.
F.That in the present application, the first party, through Mr. Applicant legal heir's name, has sought the relief of vacation of the attachment order qua the subject plot, relying upon the charge sheet filed by the local police in a case instituted by Mr. Deceased complainant's name (deceased). However, Mr. Applicant legal heir's name has very conveniently concealed the fact of the pendency of a petition moved by one of the parties before the Hon'ble High Court of Delhi, wherein further investigation is being sought in the said case. While hearing the said petition, the Hon'ble High Court, in Crl. M.C. No. Criminal miscellaneous number of 2015, passed the following order: "It is made clear that the proceedings commenced during the pendency of the present petition shall be the subject matter of this petition." The said petition is coming up for hearing on Day of petition hearing date/Month of petition hearing date/Year of petition hearing date.
G.That the report of the Tehsildar (Tehsildar's area), bearing reference No. Tehsildar report reference number dated Day of report date/Month of report date/Year of report date, has not been filed, wherein, as per the demarcation report as well as a copy of the Jamabandi record, it has been found that the disputed plot falls under Khasra No. Correct khasra number instead of Claimed khasra number, meaning thereby that the entire case of the first party stands proved to be false. However, Mr. Applicant legal heir's name has not considered it relevant to file the said report along with the present application.
3.That the aforesaid facts clearly demonstrate that the applicant, Mr. Applicant legal heir's name, has concealed material facts which were necessary to be brought to the notice of this Hon'ble Court for the disposal of the aforesaid application.
4.That placing reliance upon the outcome of the report filed by the police under Section 173 of Cr.P.C. would be of no assistance, as no charges have so far been framed against the second party on the basis of the said report.
5. That the brief facts of the case are as under:-
A.That it has been alleged that Late Sh. Deceased first party's name (hereinafter referred to as the first party) had purchased one plot of land measuring 250 sq. yards, comprised in Khasra No. Khasra number, from one Sh. Seller's name S/o Seller's father's name vide agreement dated Day of agreement date/Month of agreement date/Year of agreement date for a sum of Rs. Sale amount (₹)/-. In testimony of the sale of the land, the erstwhile owner, namely Seller's name, executed various documents, including an agreement to sell, a general power of attorney, an affidavit and a cash receipt.
B.That it has been further alleged that Sh. Seller's name provided a complete chain of title deeds to the first party, and as per the chain of documents, Mr. Purchaser's name had purchased the said plot from Sh. Attorney seller's name, who acted as the attorney of Smt. Original owner's name and executed the documents. Sh. Purchaser's name purchased the said plot from Smt. Seller's name on the strength of the general power of attorney, agreement to sell, affidavit and receipt. Smt. Purchaser's name purchased the same plot from Company seller's name, and Company seller's name acted through its proprietor, Proprietor's name, who in turn acted through its trustee, Mr. Trustee's name. It is further the case of the first party that Purchaser's name and Purchaser's name purchased one plot measuring 500 sq. yards from Sh. Seller's name and Smt. Seller's name.
C.That it is the case of the first party that, from the date of purchase of the said plot, respondent No. 2 built a boundary wall around it and constructed a room therein. However, on Day of tenant induction date/Month of tenant induction date/Year of tenant induction date, one of the friends of the first party introduced one Mr. Tenant's name, who was planning to start a business of building material in the said shop, and as a result, Mr. Tenant's name was inducted as a tenant in the subject shop.
D.That it is further the case of the first party that on Day of rent collection date/Month of rent collection date/Year of rent collection date, when he went to collect the rent from Mr. Tenant's name, he came to know that the latter had not commenced work at the said shop due to paucity of funds. It is further stated that when Mr. First party's name went to take possession of the shop, he was restrained by Mr. Restraining person's name on the pretext that the said plot pertained to his real brother, namely Dr. Second party's name. As a result, the PCR was called, and after investigation, proceedings under Section 145 of Cr.P.C. were initiated qua the aforesaid plot.
E.That during the course of the police investigation, it came to light that Dr. Second party's name had purchased 250 sq. yards from one Sh. Seller's name, who in turn had purchased the same from Seller's name and Seller's name. Besides this, the mother of Dr. Second party's name also claimed to be the purchaser of an adjoining plot from Smt. Seller's name. However, during the course of the investigation, it transpired that Dr. Second party's name claims to be the owner of the plot bearing No. Plot number claimed by second party, whereas his mother claims to be the owner of Plot No. Plot number claimed by second party's mother, whereas the plot number of the first party is First party's plot number.
F.As per the case set up by the prosecution, the chain of title documents of any one of the three persons, namely the 1st Party, Second party's name and Second party's mother's name, in respect of the plot measuring Plot area as stated in the documents, is forged, and accordingly the police filed the charge sheet.
G.Needless to state that the plot numbers claimed by each of the persons aforesaid, who claim to be owners of the plot measuring Plot area as stated in the documents, bear different numbers, namely Conflicting plot numbers.
H.Whereas a perusal of the report submitted by the Tehsildar clearly shows that the complainant / respondent No. 2 is not the owner of the land bearing Khasra No. Khasra number, and as per the said report the said land pertains to some other person. In view of this fact, the matter requires investigation, and non-investigation of this issue would jeopardise the rights of the 2nd Party; as such, a petition was filed before the Hon'ble High Court of.
J.It is worthwhile to mention herein that, as per the report of the Tehsildar (Palam) bearing reference No. Tehsildar report reference number dated Day of report date/Month of report date/Year of report date, wherein, as per the demarcation report as well as a copy of the Jamabandi report, it has been found that the disputed plot falls under Khasra No. Correct khasra number instead of Claimed khasra number, meaning thereby that the entire case of the 1st Party is proved to be false.
6.In view of the aforesaid facts and circumstances, this Hon'ble Court may kindly decide the issue of the maintainability of the application first, at this stage itself, as there has been no change in the circumstances. Thereafter, the 2nd Party reserves his right to file a detailed reply if this Hon'ble Court is of the opinion that the application moved by the 1st Party is maintainable.
P R A Y E R :-
In the facts and circumstances of the case, it is, therefore, most respectfully prayed that this Hon'ble Court may be pleased to dismiss the application moved by the 1st Party with costs.
Pass such other order or orders as this Hon'ble Court may deem fit and proper in the interests of justice.
Place of signing the replyPETITIONER
THROUGH
Name of the advocate filing the reply, ADVOCATE
DATED: Date of signing
Petitioner's signature
Petitioner's name