(Sl.No.5) SUIT No...... TITLED M/S stu Publications Vs. Mr. Abc; WITH
(Sl.No.6) SUIT No...... TITLED M/S vwx Publications Vs. Mr. Abc.
may kindly be stayed EX-PARTE during the pendency of this Transfer petiton, in the interests of justice.
PRAYER NO-2:- Pass other or further orders as may deem fit and proper in the facts and circumstances of the case.
Prayer 3. Costs.
AND FOR THIS ACT OF KINDNESS THE PETITIONER AS IN DUTY BOUND SHALL FOR EVER PRAY.
New Delhi
Date: .......
Petitioner
Through
Advocate
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SPECIMEN No-2 of TRANSFER PETITION
This Transfer Petition is not filed and not decided till now. In no Law Reports, this type of allegations are made till now. However, the Author makes this Petition, to alert the Legal profession and to provide introspection.
IN THE Court OF: (SAME Court WHERE MAIN CASE IS PENDING), AT THE PLACE: …..
Interlocutory Application No… of ….
IN
Civil Suit/ Writ Petition/ Pvt Criminal Complaint No…. of year ….
Mr.aaa, Advocate Vs. Mr.bbb
TRANSFER PETITION BY THE DEFENDANT
UNDER SECTION ….. OF THE CPC/ Cr PC/ OTHER ACTS.
1. The name and address of the parties are same as given in the Main Petition/ Suit/ Complaint which are not being repeated for the sake of brevity.
2. The Plaintiff is an Advocate, practicing in this same Court. Whereas the Defendant/ Transfer Applicant is a non-applicant.
2.1. The relations between the parties are:- Brothers/ Brother-sister/ Neighbours etc.
GENERAL ALLEGATIONS:
3. It is an experience that, the Advocates, in their private litigations, look forward for special concessions from the Judiciary and Court Staff. The Advocate of the Defendant have to be very careful to retain their clients, by keeping his colleagues away.
4. When the “Advocate-cum-Litigant in person” do not get the expected special concessions, they get very angry and start to misbehave with the Judges and Court Staff. When an Outsider non-Advocate will do similar behaviour, if bold and rough way of corrections can be feared, to the “Advocate-cum-Litigant in person” who is having his Bar Associations to protect, it is not possible to give similar bold and rough corrections.
5. Ultimately the Judiciary and their Staff are also victimized. There are long row of applications for “recusal” with allegations against Judges are made with impunity. Much time is spent in deciding disputes between the Judges and “Advocate-cum-Litigant in person”.
6. Whereas the “Advocate-cum-Litigant in person” is not suffering any financial loss, the Defendant/ Non-Advocate is expected to continue paying to his Advocate and Advocate clerk even during those days. It is with a fear that, the day he will be absent, the “Advocate-cum-Litigant in person” may take undue advantage of that day, by getting ex-parte decree. Thus each day’s delay will be caused with a technique of waiting for a day to let the Defendant finish his finance to pay to his Advocate and get absented.
BRIEF FACTS:
7. In this case also, unfortunately the Plaintiff/ “Advocate-cum-Litigant in person” who is related to the Defendant in the following manner, had shown following behaviours:-
(briefly state each misbehaviours done by the Plaintiff/ “Advocate-cum-Litigant in person”, just because he know that he can bear the consequences).
8. Under such circumstances, it will be a harassment to this Hon’ble Court to hear this Case.
9. The Plaintiff/ “Advocate-cum-Litigant in person” is not practicing at the Courts of … District, which is … Km away from here. At that place, both the parties will be of same influence, eventhough he will have only his legal knowledge with him at that place also. In other words, the Bar Association at that place may give equal consideration to both the parties, being from each families, all are not opting for Advocate Profession, and many families have Advocates and Non-Advocates in the Family.
10. Under such circumstances, the Defendant/ Transfer Applicant makes following prayers:-
i) Main Case may be Stayed till decision in this Case.
ii) The Plaintiff/ “Advocate-cum-Litigant in person” may be directed to give reply to this Transfer Application.
iii) This Application/ Petition may be send to Superior Courts for suitable Orders, in the facts and circumstances of this Case.
AND FOR THIS ACT OF KINDNESS THE PETITIONER AS IN DUTY BOUND SHALL FOR EVER PRAY.
Place:….
Date: .......
Applicant/ Defendant (Transfer Applicant)
Through
Advocate
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CHAPTER 30 : SLPs – THEORY
Special Leave Petitions, points of confusion.
1. In the General knowledge, the Special Leave Petitions are filed at the Supreme Court, under Article 136 of the Constitution of India. However, there is one more “Special Leave petition” at the High Courts.
2. Before the Hon’ble Supreme Court of India, in the wordings of Article 136 of the Constitution of India, Special Leave Petitions can be filed against any Order, other than passed by Military Court. Thus in the beginning of the Constitution, even SDM’s orders could be challenged in Supreme Court. In the recent past also, when the Supreme Court Bar Association took a decision that, Advocates who are Voting in other Bar Associations should not vote in SCBA elections, the Civil Judge at Tis Hazari Court had stayed that SCBA Order and the SCBA could get that Stay vacated directly from the Supreme Court. However, due to Judge Made Interpretations, now a Special Leave Petition can be filed filed, only if there is no other remedy to redress grievance against the impugned order.
3. There are Civil and Criminal Special Leave Petitions. When the High Court decides the case finally, it can give a “Leave to Appeal” to the Supreme Court. If that is given, the Appeal can be filed. Otherwise the SLP should be filed, in which the Hon’ble Judges who are working at the Supreme Court will give Leave or dismiss the SLP. If they give leave, it will be a Appeal, Civil Appeal or Criminal Appeal. At that time the Hon’ble Judges will direct, whether the SLP’s file/ Paper Book can be used for Appeal also or new file/ Paper Book should be prepared.
4. There is a difference since the year 1997, for SLP (Civil) to file in the Supreme Court. It have a new Format. It is not that any new allegations should be made. Only Format changed. All other informations of Facts, Grounds, Prayer etc are same. Thus, to file a Civil Appeal, SLP (Criminal) and Criminal Appeal, the format is same what had been at the High Court. Only to file SLP (Civil) the Format had been changed. For interim relief, no separate Application need to be moved, but can be written in the main SLP itself is the benefit.
5. Now from the Supreme Court Rules, Order 16, Rule 4(1)(a) states that, SLP under Art 136 of Constitution of India, should be in Form No-28. The Form No-28 is about SLP Civil. Consequently it is implied that, the SLP Criminal should be in previous format, which is equal to a Writ Petition before the High Court. The rule 4(1)(b) directs that, the List of Dates in chronological order with relevant facts or events shall be furnished, separately to Form No-28. Consequently, now if a person will read only Form No-28, he will prepare a document without Facts and Events. With this book, a Specimen of SLP (Civil) is given, to clear the doubts.
6. Special Leave to Appeal before High Courts : the relevant provision is quoted:- “Criminal Procedure Code, 1973 Section 378(3): Appeal in case of Acquittal – No appeal under sub sections (1) of (2) shall be entertained except with the leave of the High Court.” At the Sec 378(4) and 378(6) Criminal Procedure Code, 1973 also the words Special Leave to Appeal can be read, related to High Courts, when Complainant in a Private Criminal Complaint can file Appeal against the Acquittal.
7. CODE OF CRIMINAL PROCEDURE, 1973, Section 378 — Appeal—Procedure—Limitation—Special leave to appeal against acquittal can be sought alongwith the Memo of Appeal because if appeal could be filed only after seeking leave, it may become time barred. Under the law it will be perfectly in order if a composite application is made giving the necessary facts and circumstances of the case along with the grounds which may be urged in the appeal with a prayer for leave to entertain the appeal. It is not necessary as a matter of law, that an application for leave to entertain the appeal should be lodged first and only after grant of leave by the High Court an appeal may be preferred against the order of acquittal. If such a procedure is adopted, as above, it is likely, as it has happened in this case, the appeal may be time-barred if the High Court takes more than ninety days for disposal of the application for leave. The possibility that the High Court may always in such cases condone the delay on application filed before it does not, in law, solve the legal issue. The right conferred by Section 378(1), Cr.P.C., upon the State to prefer an appeal against acquittal will be jeopardised if such a procedure is adopted for in certain cases it may so happen that the High Court may refuse to exercise its discretion to condone the delay. The right conferred under the section cannot be put in peril by an interpretation of Section 378, Cr.P.C. which is likely to affect adversely or even perhaps to destroy that right. Besides, under Article 114 of the Limitation Act, in an appeal from an order of acquittal by the State, the period of limitation is ninety days from the date of the order of special leave. Thus there is a clear distinction between the two types of appeals with regard to terminus a quo under Article 114. It is, therefore, not necessary to wait until the grant of leave by the High Court to present a memorandum of appeal against acquittal at the instance of the State. Thus, appeal can be filed by the State within ninety days from the date of the order of acquittal and a prayer may be included in that appeal for entertaining the appeal under sub-section (3) of Section 378, Cr.P.C. If the leave sought for is not granted by the High Court the appeal is not entertained and stands dismissed. The application for leave to appeal, which was made by the State in this case, is equivalent to a memorandum of appeal under Section 378(1) read with sub-section (3) of that section of the Code of Criminal Procedure, 1973. The fact that the application mentioned Section 378(3) is not decisive of the true character of the application which to all intents and purposes was a memorandum of appeal. There was, therefore, no need for presentation of a second petition of appeal nor for an application for condonation of delay in this case. State of Rajasthan Versus Ramdeen, 1977 Legal Eagle(Cri) 121 : 1977 AIR(SC) 1328.
8. CODE OF CRIMINAL PROCEDURE, 1973, Section 378 — Appeal against acquittal — Filing and disposal of — Under the scheme of the Code of Criminal Procedure, the State Government or the Central Government may prefer an appeal under sub-section (1) or sub-Subject (2) of Section 378 of the Code, but such appeal shall not be entertained unless the High Court grants 'leave' under sub-section (3) thereof. The words 'no appeal under sub-section (1) or sub-section (2) shall be entertained used in sub-section (3) of Section 378 create a qualified bar to the entertainment of an appeal filed by the State Government or the Central Government under sub-section (1) or sub-section (2) from an order of acquittal passed in a case instituted otherwise than upon a complaint. The Code, by enacting sub-section (3) of Section 378, therefore, brought about a change in that there is no longer an unrestricted right of appeal against the orders of acquittal passed in such cases. The making of an application for grant of leave to appeal by the State Government or the General Government under sub-section (3) of Section 378 is however, not a condition precedent for the entertainment of such an appeal The prayer for grant of leave under sub-section (3) may, as it should, be contained in the petition of appeal filed under Section 382 of the Code. All appeals felling from orders of acquittals for offences carrying punishment with sentence of death or imprisonment for life and triable by a Court of Sessions together with application for leave under subsection (3) of Section 378 of the Code have to be heard by a bench of two Judges and other appeals falling under the category of cases other than the one described above together with application for leave have to be heard by a Single Judge. State of Madhya Pradesh Versus Dewadas, 1982 Legal Eagle(Cri) 41 : 1982 AIR(SC) 800.
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SPECIMEN OF Special Leave Petition (Civil)
(it is not skelton, but complete in all aspects).
Note:-
1. Question:- President of a Panchayat is facing Corruption charges, for Hand-Pump and other development activities. However, he is able to argue that, commencement of the proceedings against him had been in a leisurely manner, without an Affidavits to the complaint and other details. His Writ Petition had been dismissed by the High Court. Draft a SLP(C), with main prayer and interim reliefs. Other details about the Local Laws are as follows:- .....
2. The Miscellaneous Applications for Condonation of delay, Exemption from filing Certified copy of Impugned order, Exemption from filing Translation by the Official Translator etc are not prepared with this Sepcimen SLP.
3. In a Book, more than one samples need not be given. When filed in Hard copy, the following format should be followed in all type of litigations before the Hon'ble Supreme Court of India. Original of the file will be kept in a File by the Registry, thus it should be tagged at the left side top corner, rest all copies should be put inside a file cover and at the left side margin, using Green Colour Tag, it should be stitched like a book, with a difference that, by removing tag, the pages can be added or removed from the said “Paper Book”. Now it is permissible to file litigations through Internet also, but the Litigant should deposit the “Printing charges” for each pages, separately – Author.
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IN THE HON’BLE SUPREME COURT OF INDIA
SLP (C) No. of Year:....
Mr. Abc. .... PETITIONER
VERSUS
STATE OF U.P. & Ors. ... RESPONDENTS
Special leave Petition Civil, with interim prayers, for staying impugned orders.
Filed by:- (Give here the name and address of the “Petitioner in person” or the Advocate through whom the case is filed).
(for index, please see inside)
(Note:- THIS PAPER IS TO BE PASTED ON THE FILE COVER - Author)
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IN THE HON’BLE SUPREME COURT OF INDIA
SLP (C) No. of Year:....
Mr.ABC. .... PETITIONER
VERSUS
STATE OF U.P. & Ors. ... RESPONDENTS
INDEX
sl.no. particulars of documents. page no.
1. Certificate by AOR/ Petitioner in person about pleadings. 1
2. List of dates and Material Facts. 2 to
3. Certified copy of impugned order.
4. SLP (C) in the Form no.28.
5. Affidavit of the Petitioner.
6. ANNEXURE P-1: Photocopy and translated copy of Appln.dt. 9-4-01.
7. ANNEXURE P-2: True copy of the show cause notice dated 21-6-03.
8. ANNEXURE P-3:- True copy of the reply dated 28-6-2003.
9. ANNEXURE P-4: True copy of the enquiry dated 01-10-2003.
10. ANNEXURE P-5: True copy of the letter dated 07-11-2003.
11. ANNEXURE P-6 (Colly): True copy of the letters dated 17-10-03, 07-11-03, 22-12-03 and 26-2-04.
12. ANNEXURE P-7: Photocopy and trans lated copy of the Affidavit dt 16-1-04, by respondent No-5.
13. ANNEXURE P-8: True copy of the order dated 25-2-2004, passed by the respondent No-2. It had been impugned before Hon’ble High Court.
14. Vakalatnama.
/ALL THE ABOVE ARE PRODUCED/
New Delhi
Date;- Advocate on Record for the petitioner
===================================================
IN THE HON’BLE SUPREME COURT OF INDIA
SLP (C) No. of Year:....
Mr.ABC. .... PETITIONER
VERSUS
STATE OF U.P. & Ors. ... RESPONDENTS
CERTIFICATE
1. Certified that the Special Leave Petition is confined only to the pleading before the Court/ Tribunal whose order is challenged and the documents relied upon in those proceedings. No additional facts, documents or grounds have been taken or relied upon in the Special Leave Petition. It is further certified that the copies of the documents / annexures attached to the special leave petition are necessary to answer the question of law raised in the petition or to make out grounds urged in the special leave petition for consideration of this Hon’ble Court. This certificate is given on the basis of the instructions given by the petitioner/ person authorised by the petitioner whose affidavit is filed in support of the SLP.
New Delhi
Date;- Advocate on Record for the petitioner/ Petitioner in person.
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IN THE HON’BLE SUPREME COURT OF INDIA
SLP (C) No. of Year:....
Mr. ABC .... PETITIONER
VERSUS
STATE OF U.P. & Ors. ... RESPONDENTS
LIST OF DATES AND MATERIAL FACTS
Year 2000: The petitioner was elected as the Pradhan, Gram Panchayat, Giraura Vikas Khand, Marahara, Etah, Uttar Pradesh.
2000-2001:- There is one local Political Party, named Ambedkar Samaj Party, Etah. It’s District President is the Respondent No-5 in this litigation. According to him, the Government Contracts are to be awarded not on the basis of merit, but on the basis of Caste of the Contractor. He developed an enmity with the petitioner for reasons that he used to demand favour of the petitioner for getting works done illegally and the petitioner expressed his inability to satisfy him.
09-04-2001:- The respondent no-5 wrote a letter to the Hon’ble Minister for Food and Rations Supply, Rent Control; Govt. of UP, praying for drinking water facilities. In which he narrated that, Hand-pump is out-of-order since last one year, he enquired with the petitioner, but petitioner, despite misappropriating Rs. 2.5 lakhs (Rupees two lakhs fifty thousand only), and repaired old Kharanja/ Padanja and shown as new Kharanja/ padanja. This was only an Application for drinking water and not a Complaint. No Affidavit was enclosed to it, also from the body of the Complaint, there is no scope for enclosing an Affidavit. The photocopy and translated copy of the said complaint is Annexed herewith and marked ANNEXURE P-1. There is nothing in the said application, as to, from where people are drinking water since last one year or why complaint was not preferred for the said one year.
In reality, there were no water shortage. The petitioner had no reason to misappropriate the fund meant for Hand pump. That had been the reason, why there was no complaint for last one year. Annexure P-1 had been written by the respondent No-5, during his leisure time, which was rightly neglected by the addressees, for a long time.
The factum of not filing the Affidavit along with Annexure P-1 makes it ab-initio to be read as a Application/ complaint, vide Rule 3(1) of the UP Panchayat Raj Jaanch Niyamawali, 1997. Accor