Ker HC | No appeals will lie against ad interim orders in a pending case

Kerala High Court

Kerala High Court: P.B. Suresh Kumar and C.S. Sudha, JJ., held that ad interim orders cannot be impugned in an appeal under Section 5(i) of the Act. The Bench stated,

“If appeals against such orders are entertained, the appellate court would be usurping the original jurisdiction of the Court under Article 226 of the Constitution.”

The Court was dealing with the issue whether an appeal lies to a Division Bench under Section 5(i) of the Act against an interlocutory order in a writ petition, while the main writ petition is pending and if so, what are the circumstances under which or the types of cases in which such an appeal would lie. On being required to submit as to the reason for challenging such the order, instead of moving the Single Judge for vacating/varying the order, the appellants submitted that despite the appellants entering appearance and filing counter affidavit in the proceedings, the Single Judge extended the impugned ad interim order.

Section 5 of the Kerala High Court Act, 1958 reads as:
“5. Appeal from judgment or order of Single Judge:-An appeal shall lie to a Bench of two Judges from- (i) a judgment or order of a Single Judge in the exercise of original jurisdiction; or
(ii) a judgment of a Single Judge in the exercise of appellate jurisdiction in respect of a decree or order made in the exercise of original jurisdiction by Subordinate Court”

In K.S.Das v. State of Kerala, 1992 (2) KLT 358, it was held that even though an appeal could be filed against an interlocutory order passed in a writ petition, in order to be qualified for challenge in an appeal, the order shall be either substantially affecting or touching upon the substantial rights or liabilities of the parties or which are matters of moment and cause substantial prejudice to the parties. It was, however, clarified that such orders should not, however, be ad interim orders or orders merely of a procedural nature.

ad interim Order v/s Intermediate Order

The expression ‘ad interim’ only means ‘in the meantime’ or ‘temporarily’. The expression ‘ad interim order’ is understood in legal parlance as an order which would operate till the hearing of the matter.

The question for consideration before the Court was whether the order impugned in the appeal was an ad interim order or an intermediate order against which an appeal is provided for under Section 5(i) of the Act.

Noticeably, the bar under sub-section (2) of Section 397 of CrpC in entertaining revision against interim order does not apply to the category of orders which are not mere orders of a procedural nature, but can be treated as a kind of intermediate orders which affect or touch upon the rights of parties or are matters of moment. Similarly, in order to be qualified for a challenge under Section 5(i) of the Act, the order shall be conclusive at least as to any of the subordinate matters with which it deals.

Reverting to the facts, the Bench observed that an ad interim order was passed in the matter as the Single Judge found it necessary to pass such an order to protect the interest of the petitioner in the writ petition. The Bench stated,

“An order of this nature, according to us, cannot be understood, at any rate, as conclusive as to any matter, main or subordinate. The same cannot also be understood to be one intended to be in force until the main dispute is decided.”

Hence, orders of this nature can only be understood as one intended to be in force until varied or modified. Therefore, merely for the reason that the Single Judge had extended the impugned order after the appellants entered appearance and filed counter affidavit, it could not be said to be one intended to be in force until the main dispute was decided.

The Bench held that the ad interim order would continue to be the same until an adjudication is made by the Court, at least for the interlocutory purpose, irrespective of the fact as to whether the opposite side had entered appearance. Therefore, such orders could not be impugned in an appeal under Section 5(i) of the Act, for if appeals against such orders are entertained, the appellate court would be usurping the original jurisdiction of the Court under Article 226 of the Constitution. Accordingly, the appeal was dismissed. [P.T.Thomas v. Bijo Thomas, 2021 SCC OnLine Ker 4000, decided on 26-10-2021]


Kamini Sharma, Editorial Assistant has reported this brief.


Appearance by:

For the Petitioner: S.Nidheesh, Advocate and C.S.Manilal, Advocate

For the Respondents: Denu Joseph, Advocate and T.K.Vipindas, Sr. G.P.

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