IN THE HIGH COURT OF DELHI AT NEW DELHI
IN THE MATTER OF:-
Applicant's name Applicant's surname: PETITIONER
VERSUS
Petitioner's name Petitioner's surname: RESPONDENT
D.O.D.: Drafting date (day)-Drafting date (month)
APPLICATION ON BEHALF OF THE APPLICANT / RESPONDENT UNDER ORDER XLVII RULE 1 READ WITH ORDER IX OF THE CODE OF CIVIL PROCEDURE, 1908 FOR REVIEW / RECALL OF THE ORDER DATED Date of order under review PASSED BY THIS HON'BLE COURT.
MOST RESPECTFULLY SHOWETH:-
1.That the applicant / respondent prefers the present application seeking review / recall of the order dated Date of order under review passed by this Hon'ble Court, whereby the appeal was allowed and the order dated Date of Family Court maintenance order passed by the learned Family Court was set aside.
2.The review in the present case has been necessitated on account of this Hon'ble Court denying the applicant a proper and effective hearing, and disregarding the law laid down by the Hon'ble Supreme Court on various aspects of the case which were submitted to Your Lordships. This by itself is a sufficient reason to invoke the power of review of this Hon'ble Court. Even otherwise, the impugned order suffers from various mistakes and errors which are apparent on the face of the record, and permitting the said order to stand would result in a failure of justice.
3.That it is a basic principle of natural justice that a person who is likely to be adversely affected by an order must be heard before such an order is passed against her. Without any notice to the respondent, this Hon'ble Court passed the impugned order after hearing only one side. This Hon'ble Court is therefore respectfully requested to correct the gross and palpable error committed by it, so as to prevent a miscarriage of justice, by permitting a review of the order.
4.That it is submitted that on Date of Family Court maintenance order, the learned Family Court was pleased to direct the petitioner to pay Rs. Maintenance amount fixed by Family Court per month to the respondent towards maintenance till further orders. Thereafter, the petitioner challenged the said order on false and frivolous grounds and filed the present MAT appeal.
5.That on Date of High Court order (day).Date of High Court order (month).Date of High Court order (year), this Hon'ble Court allowed the MAT appeal filed by the petitioner and set aside the order dated Date of Family Court maintenance order on the ground that none had appeared on behalf of the parties before the learned Family Court. A bare perusal of the order passed by this Hon'ble Court, which reads as under:-
"We have heard learned counsel for the appellant. Taking into account the fact that none had appeared on behalf of the parties before the Family Court, we are of the considered view that counsel for both parties should be heard before a final order is passed. Till the application is heard and decided, the appellant shall pay Rs. Interim maintenance amount in High Court order per month to the respondent. This order is passed without prejudice to the rights and contentions of both the parties. We are disposing of the matter without issuing notice to the respondent, as even before the Family Court, the respondent was not present in person or represented through counsel. Accordingly, order dated Date of Family Court maintenance order (day).Date of Family Court maintenance order (month).Date of High Court order (year) passed by the Family Court is set aside. The appeal and CM APPL CM application number/CM application year (stay) stand disposed of.
The Family Court shall decide the application unaffected by any observations made by us in the order passed today."
6.It is evident from the said order that the petitioner never appeared before this Hon'ble Court, nor were the arguments on the said application heard by the learned Family Court as recorded in the impugned order.
7.It is submitted that the petitioner obtained the said order by playing fraud upon this Hon'ble Court and by suppressing and concealing the fact that he had appeared before the learned Family Court through his counsel, that arguments on the application under Section 24 of the Hindu Marriage Act, 1955 were heard from both sides, and that the matter was fixed for orders on Date fixed for orders (day).Date fixed for orders (month).Date of High Court order (year). The same is evident from the order sheet dated Date of order sheet (day).Date of order sheet (month).Date of High Court order (year), which the respondent reproduces below for the kind perusal of this Hon'ble Court, and which reads as under:-
"Date of order sheet (day).Date of order sheet (month).Date of High Court order (year)
Pr.Sh. Petitioner's counsel's name, Advocate for the petitioner.
Respondent present with Sh. Respondent's counsel's name, Advocate.
Replication filed. Copy given.
Arguments heard on the application under Section 24 HMA.
New DD of Rs. DD amount deposited is deposited by the petitioner in court. The same can be collected by the respondent from the record after deposit of the earlier expired DD or its return to the counsel for the petitioner.
Put up this matter on Next date of hearing (day).Date fixed for orders (month).Date of High Court order (year) for orders on the application."
8.It is further submitted that, with a view to obtaining the order in his favour before this Hon'ble Court, the petitioner concealed the aforesaid facts and did not file the complete chain of previous order sheets, which clearly show the appearances of the petitioner and his counsel, and which specifically record in the order dated Date of order sheet (day).Date of order sheet (month).Date of High Court order (year) that arguments on the application had been heard. This demonstrates the conduct of the petitioner and the fraud played upon this Hon'ble Court. The respondent reserves her right to initiate separate proceedings against the petitioner in this regard.
9.In view of the aforesaid facts, the appeal of the petitioner was not maintainable, as the order passed by the learned Family Court was passed after hearing the arguments of both parties and after due consideration of the facts of the case. Hence, the order passed by the learned Family Court is neither illegal nor irregular.
10.That several orders have been passed by various courts in the litigations between the parties, and the said proceedings are still pending between the petitioner and the respondent.
11.That it is most humbly submitted that, in view of the aforesaid facts and circumstances, the petitioner is liable to pay the arrears of maintenance as well as maintenance for the entire period from the date of filing of the application under Section 24 of the Hindu Marriage Act, 1955 till the date of the order passed by this Hon'ble Court.
12.That in view of the aforesaid facts and circumstances, this Hon'ble Court may graciously be pleased to review the order dated Date of order under review and dismiss the appeal of the petitioner, on the ground that the petitioner obtained the said order by making false statements and by playing fraud upon this Hon'ble Court, which conduct is illegal and cannot be countenanced by this Hon'ble Court.
13.That the respondent is seeking the review for the sake of justice, as justice is the highest priority of this Hon'ble Court, and the impugned order in its present form will result in serious injustice to the respondent.
14.That this Hon'ble Court is the custodian of justice and has been vested with a special and exclusive power of review. The respondent has no other remedy except to approach this Hon'ble Court by way of the present review application.
15.That the respondent has not challenged the impugned order before any other court.
PRAYER:-
It is, therefore, most respectfully prayed that this Hon'ble Court may graciously be pleased to:
(a)allow the present application and review the order dated Date of order under review passed by this Hon'ble Court, and dismiss the appeal of the petitioner with heavy costs in favour of the respondent; and
(b)pass such other and further order or orders as this Hon'ble Court may deem fit and proper in the facts and circumstances of the case and in the interest of justice.
Place of executionRESPONDENT
THROUGH
COUNSEL FOR THE RESPONDENT
DATED: Date of verification
ADVOCATES
Respondent's address (house and street),
Respondent's address (city and PIN code).