IN THE HON’BLE COURT OF SH. XXXXX; LD. XXXXXX JUDGE; FAMILY COURT, XXXXX COURT; DELHI

MISC. APPLICATION NO. ______ OF 2015.

IN

MT. CASE NO. XXXXXX

IN THE MATTER OF :-

XXXXXX                                                            : APPLICANT

VERSUS

XXXXXX                                                            : RESPONDENT

REPLY TO THE APPLICATION FILED BY COMPLAINANT / APPLICANT FOR SEEKING NECESSARY ORDER AND DIRECTION FOR RESTORATION OF THE ABOVE MENTIONED MATTER TO ITS ORIGINAL FILE NUMBER.

MOST RESPECTFULLY SHOWETH:-

1.       The application moved by the applicant / complainant before this Hon’ble Court by suppressing the material facts as such present application is liable to be dismissed.

2.      That post withdrawal of the aforesaid proceeding by the applicant, in terms of the settlement arrived between the parties, applicant remained together for a period and in terms of the settlement in lieu of maintenance, permanent alimony, all disputes arising out of the marriage the mother (deceased) of the respondent had executed a gift deed of the property bearing ____________ jointly in favour of applicant as well as the respondent to the extent of 50% of the property.

3.      In terms of the settlement applicant had to withdraw all the litigation as well as to give consent for quashing of the FIR which was registered at the instance of applicant, however during course of the proceeding before the Hon’ble High Court of Delhi for quashing of the FIR, applicant resiled from her statement resulting the petition was disposed off without passing any order qua the quashing.

4.      It is most humbly submitted that the present applicant whereby concealing the factum of settlement of all her claim qua the maintenance, alimony and other disputes arising out of the marriage and about the execution of gift deed in her favour in respect of 25% share of the property as mentioned above, applicant has moved this application and same is liable to be dismissed on this ground alone and applicant cannot seek maintenance unless applicant revokes the gift deed.

5.       In view of the fact that applicant reunited post withdrawal of the aforesaid proceedings and thereafter, due to resilment of the settlement by the complainant / applicant, new cause of actions would arise for the filing of fresh application under Section 125 Cr.P.C. rather restoring the earlier petition which were based upon the earliest cause of action.

6.      That it is further submitted that in view of the judgment as passed by Hon’ble High Court of Delhi in a case of XXXVs. XXXX wherein applicant had to furnish an affidavit along with the application / petition under Section 125 of Cr.P.C. and in the present case applicant without filing the said affidavit has sought the restoration which is liable to be refused.

7.       That the case law as relied upon by the applicant in the application for restoration, there is no dispute but the facts of this case is altogether different and on the part of the respondent they had complied with terms of the settlement as such applicant / complainant cannot put the respondent in double jeopardy as such present application is liable to be dismissed.

8.      That the present case of the applicant does not falls under the preview of simplicity of restoration rather the application moved by the applicant is to first convince this Hon’ble Court on the issue of maintainability of the proceeding post 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, rest of the allegations as leveled by the applicant are denied in toto.

10.     In view of the aforesaid facts and circumstances, this Hon’ble Court may please decide the issue of maintainability of this application firstly at this stage as in view of the fresh cause of actions with respect to the settlement / reunion / alleged new cause of actions.

11.     That it is most humbly submitted that respondent is not liable to pay arrears of the maintenance as well as maintenance for the period i.e. from the date of withdrawal of the proceedings till the date of the order which 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 as well as in view of the facts that applicant had got gift deed of 25% qua the aforesaid property, which was executed only by virtue of the settlement arrived between the applicant as well as the respondent and his family members for the disputes arising out of the marriage including the issue of the maintenance of the applicant as well as her daughter, furthermore if this Hon’ble Court holds that the application moved by the applicant is maintainable then the quantum of the maintenance is to be decided a fresh post filing of the affidavit of the income by both the parties in view of the direction passed by the Hon’ble High Court of Delhi furthermore, keeping in view of the change of the source of income.

13.     That the FIR as mentioned in the application are false and motivated and the matter is still under investigation / trial and complainant / applicant used to lodged false and frivolous complaints against the respondent and his family members.

14.     That the contents of application and prayer clause along with sub paras of the application are redundant and irrelevant to the   subject petition as explained earlier and therefore is denied in its entirety. The applicant is not entitled for any relief claimed for.

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 in the frivolous litigation, in the interest of justice, equity and circumstances of the case.

Pass such other order or orders as this Hon’ble Court may deem fit and proper interest he interest of justice.

DELHI                                                                         RESPONDENT

THROUGH

DATED

XXXXXXXX

ADVOCATES

_____________
_____________

IN THE HON’BLE COURT OF SH. XXXXXXX; LD. XXXXXXXX JUDGE; FAMILY COURT, XXXXXX COURT; DELHI.

MISC. APPLICATION NO. ______ OF 2015.

IN

MT. CASE NO. XXXXXXX.

IN THE MATTER OF :-

XXXXXX                                                            : APPLICANT

VERSUS

XXXXXX                                                            : RESPONDENT

AFFIDAVIT

Affidavit of Mr. XXXXX, S/o __________ R/o __________, do hereby solemnly affirm and declare as under :-

1.       That I am the respondent in the above noted matter and 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 of the same have been duly read over and understood by my vernacular language and after fully understanding the contents of the therein are all true and correct to my knowledge.

DEPONENT

VERIFICATION :-

          Verified at Delhi on this _____, day of July, 2016 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 XXXXXXXXX, XXXXX, DISTRICT XXXX, XXXXXXX, NEW DELHI.

IN THE MATTER OF :-

XXXX                          VS.             1. XXXXXX (Deceased)

                                                          Through its L.R.

2. DR.XXXXXX

OBJECTIONS / REPLY FOR AND ON BEHALF OF DR. XXXXXXX TO THE APPLICATION MOVED BY THE 1^st PARTY THROUGH ITS LEGAL HEIR.

To,

          The Hon’ble Magistrate.

MAY IT PLEASE YOUR LORDSHIPS :-

1.                  That the second party is filling a short reply / objections qua the application moved by the one of the legal heir of the 1^st Party, though Second party is keeping his right reserves if this Hon’ble Court finds that the application moved by the 1^st party is maintainable.

2.                 The application moved by the First party Is liable to be dismissed on following grounds :-

A.               That the applicant here in namely Mr. XXXXXX has not moved an application for its impleadment as a party to the proceedings , further more Mr. XXXXXXX has not disclosed about the details of other legal heirs of the deceased , if any , of Mr. XXXXXXX ( deceased ).

B.                Mr. XXXXXX  deliberately / intentionally concealed the factum of on going proceedings before Hon’ble Court of XXX Judge, XXXX Courts, Delhi where in applicant namely Mr.XXXXXX is appearing as one of the legal heir of the 1^st party, more so over, said litigation is only in respect to the plot which is subject matter of the proceedings pending before this Hon’ble Court.

C.                Pertinently a contempt proceedings may be instituted against the applicant namely Mr. XXXXXXX who has moved the present application despite the fact that a  “status quo” order has been passed by Ld. XXXX, XXXXX with respect to the subject land vide order dated __/__/__.

D.               In addition to the same, it is further submitted that 2^nd party i.e. applicant has challenged the order passed under section 145 (1) & 146 (1) of Cr.P.C by this Hon’ble Court before the Hon’ble Court of District and Session Judge, XXXXX Courts, Delhi, and same was disposed off by the Hon’ble Session Court vide order dated __/__/__ whereby its was directed by the Hon’ble Court to adjudicate the rights before the pending civil litigation. That XXXXXXX has not informed the pendency of civil litigation qua the subject plot to this Hon’ble Court in view of the same appropriate proceedings may be initiated against him for suppressing the material information in order to get the relief form the kind hands of this Hon’ble Court.

E.                Beside that Mr. XXXXXX ( one  of the legal heir of 1^st Party ) has not disclosed about the registration of FIR by 2^nd Party namely Dr. XXXXXX against Mr. XXXXXX, Mrs. XXXXXXX (both deceased) and their accomplice namely Mr. XXXXXX and that proceedings is pending for adjudication before the Hon’ble Court of C.M.M., XXXXX and is fixed for __/__/__.

F.                In the present application, 1^st Party through XXXXXXX 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. XXXXXXX (Deceased) however, Mr. XXXXXX very conveniently concealed the factum of pendency of Petition moved by one of the party before Hon’ble High Court of Delhi where in further investigation is being sought in the said case  and while hearing the said petition , Hon’ble High Court in Crl. M.C. No. XXXX 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” and  this petition is coming for hearing on __/__/__.

G.               Non filling of the report of the Tehsildar (XX) bearing reference No.XXXX dated __/__/__ wherein as per the demarcation report as well as copy of Jamabandhi Report it has been found that the disputed plot falls under Khasra No. XXX instead of XXX meaning thereby the whole case of the 1^st Party is proved to be false. Although Mr. XXXXX has not thought it relevant to file it along with this application.

3.      The aforesaid facts clearly demonstrates that applicant Mr. XXXXXX  has concealed the material facts which are necessary to be informed to this Hon’ble Court for the disposal of aforesaid application.         

4.                Placing a reliance over the out come of report filed by the Police under section 173 Cr.P.C. would be of no help as so far no charges have been framed against the 2^nd party on the basis of that report.

5.                That the brief fact of case are as :

A.      That it has been alleged that Late Sh. XXXXX (hereinafter called as a 1^st party) that 1^st Party had purchased a one plot of land measuring 250 sq. yards comprised in Khasra No.________________________ from one Sh. ____ S/o ________ vide agreement dated __/__/__ for a sum of Rs. ___/-. In the testimony of sale of the land the erstwhile owner namely XXXX executed various documents which includes agreement to sell, general power of attorney, affidavit and cash receipt.

B.      That it has been further alleged that Sh. XXXXX provided a complete chain of title deed to the 1^st Party and as per the chain of the documents that Mr. XXXXX had purchased this plot from Sh. XXXXX who acted as a attorney of Smt. XXXX and executed the documents. Sh. XXXXX purchased the said plot from Smt. XXXXX on the strength of GPA, agreement to sell, affidavit, receipt. Smt. XXXXXX purchased the same plot from XXXXX and XXXX through its proprietor XXXXX who acted through its trustee Mr. XXXX. It is further case of the 1^st party that XXXX and XXXXX purchased one plot of 500 sq. yrds. from Sh. XXXX and Smt. XXXX.

C.      That it is case of the 1^st party that from the date of purchase of the said plot respondent no.2 built a boundary wall and constructed a room therein. However, on __/__/__ one of the friend of the 1^st party introduced one Mr. XXXXX who was planning to start a business of building material in the said shop, resulting Mr. XXXXX was inducted as a tenant in the subject shop.

D.      It is further case of the 1^st party that on __/__/__ when he went to collect the rent from Mr. XXXXX where from he came to know that he had not started the work from the said shop due to paucity of the funds, however it is further stated that when Mr. XXXXX went to take possession of the shop he was restrained by Mr. XXXXXX on the pretext that the said plot pertains to his real brother namely Dr. XXXXXX, resulting PCR was called and post investigation proceeding under Section 145 of Cr.P.C. was initiated qua the aforesaid plot.

E.      During the course of the police investigation it came to the knowledge that Dr. XXXXXX have purchased the 250 sq. yrds from one Sh. XXXXXX, who in turn had purchased the same from XXXXX & XXXXX. Besides this the mother of Dr. XXXXXXX had also claim to be purchaser of a adjoining plot from Smt. XXXXX. However, during the course of the investigation it has been transpired that Dr. XXXXXXX is claiming to be owner of the plot bearing No.XX whereas his mother claim to be owner of the Plot no.XXX, whereas the plot number of the 1^st Party is XX.

F.      As per the case of the prosecution chain of title document anyone of these three namely r1st Party, Dr. XXXXXX and Mrs. XXXXX qua the plot of 250 sq. yards is forged and finally police file the charge sheet.

G.      Needless to say that the plot number of all the persons as above claimed to be owner of the 250 sq. yards plot bears different numbers i.e. XXXXXX.

H.     Where as a perusal of the report submitted by the Tehsildar clearly shows that complainant / respondent No.2 is not owner of the land bearing khasara No. XXX  and as per report this land pertains to some one else, in view there of this factum needs investigation and non investigation over this issue would jeopardize the right of the 2^nd Party as such a petition before Hon”ble High Court of Delhi was filed.

J.       It is worthwhile herein to mention that as per report of the Tehsildar (Palam) bearing reference No.XXXXX dated __/__/__ wherein as per the demarcation report as well as copy of Jamabandhi Report it has been found that the disputed plot falls under Khasra No.XXXX instead of XXXX meaning thereby the whole case of the 1^st party is proved to be false.

6.       In view of the aforesaid facts and circumstances, this Hon’ble Court may please decide the issue of maintainability of this application firstly at this stage as there is no change in the circumstances. Thereafter, 2^nd Party reserves his right to file the detailed reply if this Hon’ble Courts think that application moved by 1^st Party is maintainable.

P R A Y E R :-

In the facts and circumstances of the case, it is respectfully prayed that this Hon’ble Court may be pleased to dismiss the application moved by the 1^st party with costs.

Pass such other order or orders as this Hon’ble Court may deem fit and proper interest he interest of justice.

DELHI                                                                         PETITIONER

THROUGH

DATED

XXXXXXXXXX

ADVOCATES

_____________

_____________