Delhi High Court
Case BriefsHigh Courts

   

Delhi High Court: In a petition filed under Section 34 of the Arbitration and Conciliation Act, 1996, (‘A&C Act') challenging an order passed wherein the arbitrator rejected an application filed by the petitioner for amendment of the statement of claim, Prateek Jalan, J. dismissed the petition as non-maintainable and held that Section 23(3) of the Arbitration & Conciliation Act, 1996 vests discretion in the Arbitrator to reject an amendment application made at a belated stage and such an order cannot be challenged under Section 34 of Arbitration and Conciliation Act, 1996.

The Court remarked that “Factors which cloth the orders of the Arbitral Tribunal with the characteristic of finality, render them susceptible to challenge as interim awards under Section 34 of Arbitration & Conciliation Act, 1996

The Court essentially ruled that characteristics of an interlocutory order passed by an Arbitral Tribunal, having trappings of finality are the key to determine maintainability of petitions under Section 34 of Arbitration and Conciliation Act, 1996.

A suit was originally filed by the petitioner against three defendants, of whom the respondent was the principal defendant, and the other two defendants were arrayed as proforma defendants. By an order dated 07.11.2016, the suit, along with five other suits pending before the Court, were referred to arbitration before a former Judge of this Court.

In the arbitral proceedings between the parties, six proceedings have been taken up together by the arbitrator. The Petitioner in one of the six cases had claimed a decree of declaration for the Sale Deed dated 28.07.2010 registered on 29.07.2010 obtained by the Respondent from the Petitioner to be declared as void and cancelled. Vide amendment application dated 21.07.2017, the Petitioner sought amendment of the statement of claim. The Petitioner pressed for amendment by way of additional prayers for a decree directing the Respondent to transfer title of the property under dispute to the Petitioner.

The Respondent resisted the amendment, and the application for amendment was subsequently dismissed vide impugned order dated 04.11.2019 by the arbitrator under Section 23(3) of the A&C Act. The Arbitrator rejected the application as the same was filed belatedly in 2017 and further not pressed upon till 04.11.2019. The arbitrator, however, was sure to record in the impugned order that “expression of any view herein will not be treated as expression on the merit of the case.”

The Counsel for the respondent raised a preliminary objection with respect to the maintainability of the petition under Section 34 of Arbitration and Conciliation Act, 1996, directed against an order of the arbitrator, rejecting an application of amendment. The Respondent submitted that an interim interlocutory order does not have the trappings of an interim award as prescribed under Section 2(1)(c) of Arbitration and Conciliation Act, 1996, and thus, cannot be entertained by the Court.

Placing reliance on Container Corporation of India Ltd. v. Texmaco Limited, 2009 SCC OnLine Del 1594, the Court observed that in the facts of the present case, the arbitrator has proceeded only on the ground that the amendment was sought belatedly and did not adjudicate on the merits of the case. Therefore, the impugned order dated 04.11.2019 under challenge was not an interim award.

Thus, the Court held that the impugned order in the present case does not constitute an interim award, susceptible to challenge under Section 34 of the Act.

[Punita Bhardwaj v. Rashmi Juneja, 2022 SCC OnLine Del 2691, decided on 31-08-2022]


Advocates who appeared in this case :

Mr. A.K. Singla, Senior Advocate, Mr. Rahul Shukla and Mr. Akshit Sachdeva, Advocates, Counsel for the Petitioner;

Mr. Siddharth Batra, AOR, Ms. Shivani Chawla, Mr. Siddharth Satija and Mr. Akash Sachan, Advocates, Counsel for the Respondent.


*Arunima Bose, Editorial Assistant has put this report together.

Punjab and Haryana High Court
Case BriefsHigh Courts

   

Punjab & Haryana High Court: Suvir Sehgal, J. while dismissing the petition filed under Section 482 of Criminal Procedure Code against the order passed by Judicial Magistrate, granted permission to the accused travel to Australia for a period of six months to take up employment on the ground that the accused has the right to travel abroad on conditions.

Facts:

The wife filed an FIR under Sections 498-A and 406 of the Penal Code, 1860 against the petitioner to which the petitioner was granted anticipatory bail by the Court which was made absolute vide order dated 03-03-2020. Although the petitioner is a permanent resident of Australia, he returned to India before expiry of the period granted by the Court. The petitioner is maintaining the respondent despite being unemployed. Now, he has a job offer in hand for which he has to go back to Australia and pleaded the same in the Trial Court, but the application got rejected to which he filed this instant petition.

Arguments:

The counsel for the petitioner argued that despite being jobless, the petitioner is making payment of arrears of maintenance in 10 monthly installments. The counsel brought to the notice of the Court that the petitioner has an offer for an employment from an Australian company and also, that the petitioner is a permanent resident of Australia but returned to India when he was called upon by the Court.

The counsel for the respondent asserted that the job offer with the petitioner is not genuine. He also argued that if the Court once grants permission, then he might not return back.

Issue:

Whether the order passed by the Magistrate is an ‘Interlocutory order' or not?

Analysis and Observation:

The Court observed that under Section 397(2) read with 401 of the Criminal Procedure Code, there is a bar to the exercise of revisional power against interlocutory order.

The Court cited Bhaskar Industries Ltd. v. Bhiwani Denim & Apparels Ltd., (2001) 7 SCC 401 and K.K. Patel v. State of Gujarat, (2000) 6 SCC 195, where it was of the view that “an ‘interlocutory order’ denotes order of a purely interim or temporary nature, which does not decide or touch the important rights or liabilities of the parties. In other words, an interlocutory order is one which does not finally culminate the criminal proceedings. When tested on this anvil, the impugned order whereby application for permission to travel abroad has been declined, would qualify as an interlocutory order and fall within the ambit of Section 397(2) of the Code. As revision against such an order is barred, an aggrieved person has no other remedy, but to invoke the inherent powers of this Court.”

The Court further noted that the petitioner has a valid job offer in hand and there is no doubt about his bonafide.

The Court reiterated that ‘personal liberty, in Article 21 of the Constitution which includes the right to go abroad and the same cannot be taken away except in accordance with procedure prescribed by law.

The Court observed that in a matter arising out of matrimonial dispute, the accused has a right to travel abroad on conditions being imposed upon him to ensure his presence before the Trial Court and in case any condition imposed by the Court is violated, appropriate coercive action can be taken.

The Court held that the impugned order passed by the Magistrate is an interlocutory order and deserves to be set aside.

[Gaurav Raheja v. State of Punjab, CRM-M-19373-2022 (O&M), decided on 05-08-2022]


Advocates who appeared in this case :

For Petitioner: Mr. Bipan Ghai, Senior Advocate

Mr. Deepanshu Mehta, Advocate

Mr. Nikhil Ghai, Advocate

For Respondents: Mr. Prabhjot Singh Walia, AAG, Punjab for State

Mr. Nitin Meel, Advocate

Mr. Kulbhushan Raheja, Advocate

Experts CornerSiddharth R Gupta

It is the plain and unqualified obligation of every person against, or in respect of whom an order is made by a court of competent jurisdiction, to obey it unless and until that order is discharged.

Romer L.J.,

Hadkinson v. Hadkinson1

Disobedience of orders of a court strikes at the very root of the rule of law on which the judicial system rests. Judicial orders are bound to be obeyed at all costs. Howsoever grave the effect may be, is no answer for non-compliance of a judicial order. Judicial orders cannot be permitted to be circumvented.

J.S. Khehar, J.

Subrata Roy Sahara v. Union of India2

The present article delves into a subject of immense relevance for the judicial system of our country, with the ongoing debate on interpretation of interim orders regarding their extent, existence, and expiry after a particular passage of time. In other words, we would attempt to highlight how the question of duration and endurance of interim orders has been answered by the various courts, especially the constitutional courts of the country viz. (High Courts and the Supreme Court), when they were mentioned to be operative for a particular period/duration/time by the court passing the order granting interim relief.

As the analytical description would unfold, what will also be amusing to note is that the constitutional courts of the country have themselves left every corner of this issue ambiguous and ambivalent. It is highly desirable that the Supreme Court of India must step in and resolve the serious conundrum occasioned owing to mutually contradictory judicial verdicts of various High Courts. There is a sharp vertical cleavage of judicial opinion on the duration and expiry of interim orders, when they are passed for a fixed period/time.

The article shall be segregated into the following sub-topics:

1. Purpose and objective of an interim/interlocutory order by any court of law.

2. Classification of interim/interlocutory orders on the basis of their wordings.

3. Origins and applicability of the legal maxim – “actus curiae neminem gravabit”.

4. View of the Supreme Court of India.

5. Views of the High Courts favouring continuation of interim order in various contingencies.

6. Views of the High Courts against continuation of interim order, declaring their expiry date.


Discussions under topics A to D shall be undertaken in the current part of the article whilst discussions under topics E to G shall be dealt with in Part II of the article

Purpose and objective of an interim/interlocutory order by any court of law

The roots and origins of the concept of interim/interlocutory order in the Indian context can be traced to the provisions of Order 39 Rules 1 to 3 CPC, which are the repository of powers to grant interim relief and temporary injunctions.

Upon perusal of Order 39 Rule 1 CPC, it would indicate that wherein any suit, it is proved by affidavit or otherwise (i) that any property in dispute in a suit is in danger of being wasted, damaged or alienated by any party to the suit, or wrongfully sold in execution of a decree; or (b) that the defendant threatens, or intends, to remove or dispose of the property with a view to defrauding the creditors; (c) that the defendant threatens to dispossess, the plaintiff or otherwise cause injury to the plaintiff in relation to any property in dispute in the suit; the court may grant an order of temporary injunction to restrain such acts.

It has now been well settled that before a court grants a temporary injunction, it needs to be satisfied that a person seeking an injunction has a prima facie case in his favour and that the balance of convenience and possibility of irreparable injury being caused also lies in his favour.

The word “prima facie case” apparently indicates something which at the first impression makes out a triable case. The term “prima facie case” should not be confused with the term “prima facie title” which has to be established at the trial upon permitting the parties to lead evidence. Thus, it means a substantial question has been raised, which upon first sight needs to be investigated and decided on merits.

The word “balance of convenience” denotes that the court must be satisfied that the comparative mischief and hardship which is likely to be caused to the person seeking an injunction is more than the inconvenience likely to be caused to the other party by granting such injunction.

The word “irreparable injury” on the other hand guides the court to be satisfied that the refusal to grant the injunction would result in such injury which cannot be compensated in terms of costs or otherwise and the person seeking injunction needs to be protected from the consequences of apprehended injury.

The aforesaid three ingredients have been noticed by the House of Lords in the celebrated case of American Cyanamid Co. v. Ethicon Ltd.3 The principles regarding grant of injunction as laid down by the Lord Diplock in the Cyanamid case4 can be summarised as under:

(1) The plaintiff must first satisfy the court that there is a serious issue to decide and that if the defendants were not restrained and the plaintiff won the action, damages at common law would be inadequate compensation for the plaintiff’s loss.

(2) The court, once satisfied with these matters will then consider whether the balance of convenience lies in favour of granting an injunction or not, that is, whether justice would be best served by an order of injunction.

(3) The court does not and cannot judge the merits of the parties’ respective cases and that any decision of justice will be taken in a state of uncertainty about the parties’ rights.

The Supreme Court of India has also followed the same principle as followed by the English courts primarily the three considerations mentioned above. In Colgate Palmolive (India) Ltd. v. Hindustan Lever Ltd.,5 the Supreme Court of India referred to the Cyanamid case6. It also relied upon the Indian precedents and succinctly enumerated the broad parameters that should govern the judicial discretion in the passing of interim/interlocutory/temporary orders by Indian courts. Vide para 24, the Supreme Court Bench, comprising B.N. Kirpal and U.C. Banerjee, JJ., held thus:

24. We, however, think it fit to note hereinbelow certain specific considerations in the matter of grant of the interlocutory injunction, the basic being non-expression of opinion as to the merits of the matter by the court, since the issue of grant of injunction, usually, is at the earliest possible stage so far as the time-frame is concerned. The other considerations which ought to weigh with the court hearing the application or petition for the grant of injunctions are as below:

(i) Extent of damages being an adequate remedy.

(ii) Protect the plaintiff’s interest for violation of his rights though, however, having regard to the injury that may be suffered by the defendants by reason therefor.

(iii) The court while dealing with the matter ought not to ignore the factum of the strength of one party’s case is stronger than the other’s.

(iv) No fixed rules or notions ought to be had in the matter of grant of the injunction but on the facts and circumstances of each case — the relief being kept flexible.

(v) The issue is to be looked at from the point of view as to whether on the refusal of the injunction the plaintiff would suffer irreparable loss and injury keeping in view the strength of the parties’ case.

(vi) Balance of convenience or inconvenience ought to be considered as an important requirement even if there is a serious question or prima facie case in support of the grant.

(vii) Whether the grant or refusal of the injunction will adversely affect the interest of the general public which can or cannot be compensated otherwise.

The authorities and precedents on principles governing grant of interim relief are innumerable. However, the above ones have been referred to broadly explain the factors that should govern grant of interim relief by any judicial/quasi-judicial court or a tribunal.

Necessarily, therefore, the exercise of passing of any interim order granting any interim relief by necessary implication is an exercise to be undertaken by the courts with due application of mind, preferably through speaking order. The Supreme Court has been consistently holding that interim orders cannot be granted on mere asking or as a matter of force, but only on consideration governing them (as explained above). There has to be an active display of judicial conscience and mental thinking in the process of passing of interim order in favour of any party.

The present article delves into the moot question of whether the effect of an interim order granted to any party must dissipate on procedural grounds, when the time expires. Whether, despite all the diligent efforts of the parties, when the courts are not able to decide on the vacation or withdrawal of interim relief so granted to any party, should the party be denied the fruits of a judicially considered and well-deliberated interim order is the question to be answered.

Classification of interim/interlocutory orders on the basis of their wordings

Even though it may be a singular term  “interlocutory orders”, however the content of these orders may bear different colours. As stated earlier, the grant of interim relief to any party in any proceeding is dependent upon a host of factors. The courts may while granting interim relief, bracket it with certain conditions or riders. The tenure, extent and duration of the interim orders may be limited by the court whilst granting interim relief. Generally, the court restricts the extent and duration of the interim orders in the following words:

(i) “in the meanwhile … during the pendency of the matter”;

(ii) “till the next date of hearing of the matter”;

(iii) “till the next date of listing”;

(iv) “list on (date) … till then interim order (as specified) to operate”; and

(v) “parties are directed to maintain status quo (or any other similar interim order) till further orders of this Court”.

The interim orders of varied wordings may be passed by the court, but each of them has a separate import about its extent and duration. It is the dispute about the interpretation of these interim orders only that has been keeping jurists and Judges puzzled alike, with no definite answer. A one line interim order may at times cascade into another bigger litigation if the stakes on either side are volatile, for protection of which only the interim order of the court was passed.

Origins applicability of the legal maxim – “actus curiae neminem gravabit” for extension and restoration of interlocutory orders

The maxim is founded upon justice and good sense; and affords a safe and certain guide for the administration of the law. In virtue of it where a case stands over for argument from term to term on account of the multiplicity of business in the court, or for judgment from the intricacy of the question, the party ought not to be prejudiced by that delay, but should be allowed to enter up his judgment retrospectively to meet the justice of the case; and therefore, if  one party  to  an  action  dies  during  a  curia  advisari vult,  judgment may be entered “nunc pro tunc”, for the delay is the act of the court, and therefore neither party should suffer for it.

Cases do however, occur, in which injury is caused by the act of a legal tribunal, as by the laches or mistake of its officers; and where, notwithstanding the maxim as to actus curiae, the injured party is altogether without redress.

The maxim referred to above was relied on, referred and applied for by the courts at UK as far back in the beginning of 19th century in the judgment of Pulteney v. Warren7, wherein Lord Eldon in the context of above maxim, observed as under:

“If there be a principle, upon which courts of justice ought to act without scruple, it is this; to relieve parties against that injustice occasioned by its own acts or oversights at the instance of the party, against whom the relief is sought. That proposition is broadly laid down in some of the cases.”

This view was followed subsequently by the House of Lords in East India Co. v. John Campion8. In another case of Rodger v. Comptoir d’Escompte de Paris9, the principle enshrined above in the Latin maxim was reiterated again in following lines:

… One of the first and highest duties of all courts is to take care that the act of the court does no injury to any of the suitors and when the expression “the act of the court” is used, it does not mean merely the act of the primary court, or of any intermediate court of appeal, but the act of the court as a whole from the lowest court which entertains jurisdiction over the matter up to the highest court which finally disposes of the case….

In addition to the above, first few judgments which affirmed and followed the doctrine of “actus curiae neminem gravabit” is Turner v. London and South-Western Railway Co.10 In this case, the plaintiff had died after the hearing, but before the court rendered its judgment. The court ordered that its judgment be entered “nunc pro tunc”, as of the day when the argument terminated, noting that this would not cause an injustice to the other party and that such a result was appropriate in a case in which the delay had resulted from an act of the court.

Thus in essence, the Latin maxim “actus curiae neminem gravabit”, means “an act of the court should prejudice no one”. At times, judicial proceedings or orders of the court may itself perpetuate injustice. The doctrine therefore allows courts to rectify and undo the wrongs committed to any party due to its own mistakes, shortcomings in judicial proceedings or judicial orders.

The Privy Council as far back as in Debi Bakhsh Singh v. Habib Shah11 pointed out that an abuse of the process of the court may be committed by the court or by a party. Where a court employs a procedure in doing something, which it never intended to do and there is an abuse of the process of the court, it can always be corrected. Lord Shaw spoke for the Bench thus:

“Quite apart from Section 151, any court might have rightly considered itself to possess an inherent power to rectify the mistake which had been inadvertently made.”

Further, in another matter of The Bolivar12, the Privy Council applying the doctrine further stated thus:

“Where substantial injustice would otherwise result, the court has, in Their Lordships’ opinion, an inherent power to set aside its own judgments of condemnation so as to let in bona fide claims by parties….”

In Jang Singh v. Brij Lal13, the Supreme Court of India in relation to the maxim “actus curiae neminem gravabit” observed as follows:

6. … There is no higher principle for the guidance of the court than the one that no act of courts should harm a litigant and it is the bounden duty of courts to see that if a person is harmed by a mistake of the court he should be restored to the position he would have occupied but for that mistake. This is aptly summed up in the maxim:

“actus curiae neminem gravabit”.

Courts have held in many judgments said that to own up any mistake when judicial satisfaction is reached, does not militate against its status or authority. Perhaps it would enhance both.

What would happen if the interim order applicable up to a particular date or any interim arrangement determined by the court does not get extended due to procedural impediments on the part of the court; or owing to omission on the part of its Registry. Whether an interlocutory order passed after due consideration of merits and application of judicial mind with due exercise of judicial conscience and discretion must disappear for the faults in the machineries working in the judicial system. Courts in India have applied the aforementioned doctrine of “actus curiae neminem gravabit” to restore the previously passed interlocutory orders that expired for no fault of the parties.

In Pradip Kumar Saha v. Rajesh Rajak14, the ADJ Court at Siliguri (W.B.) had passed an order whereby the prayer for extension of ad interim order of stay of the operation of the order was refused against which the matter travelled to the High Court. Previously, an ad interim order of injunction was passed on an application filed by the plaintiffs/opposite parties on 17-8-2015 restraining the defendant-petitioner from disturbing the peaceful possession of the plaintiff till 16-9-2015. This interim order was extended from time to time until the Order No. 16 passed in the said suit. But from Order No. 16 till Order No. 24 passed in the said suit, this order was not extended by the trial court. No order came to be passed for extension of interim order, when the matter travelled to the High Court on the question of existence and continuation of interim order when the parties had made diligent efforts. The High Court applying the doctrine of “actus curiae neminem gravabit”, held that act of the court should not cause any prejudice to the litigant and therefore continued the ad interim order granted earlier by the trial court till the final disposal of the pending applications for the extension of the interim relief. Vide para 1, the High Court applying the said doctrine observed thus:

1. … An ad interim order of injunction was passed on an application filed by the plaintiffs/opposite parties on 17-8-2015 restraining the defendant-petitioner from disturbing the peaceful possession of the plaintiff till 16-9-2015. It is not in dispute that such ad interim order of injunction was extended from time to time until the Order No. 16 passed in the said suit. There is no reflection after the said Order No. 16 till the Order No. 24 passed in the said suit that the said ex parte ad interim order of injunction was extended by the trial court. A serious dispute was raised before this Court over the filing of an application seeking extension of the said interim order on each date of listing. My attention is drawn to the orders recorded in the said suit wherefrom it appears that an application seeking extension of ad interim order was filed but there is no reflection that the court extended the said ad interim order of injunction. By an order dated 10-1-2018 the learned Judge in the trial court took up the matter and noticed that the ex parte ad interim order of injunction granted on 17-8-2015 has not been extended on and from 1-7-2016. The learned Judge was of the opinion that it was a mistake on the part of the court in not extending ad interim order of injunction and extended in the manner as if the said ad interim order of injunction was operative through out the proceeding. What can be seen from the tenet of the said order is that the learned Judge in the trial court was swayed by the fact that the act of the court should not cause any prejudice to the litigant. Such principle is well recognised and based on the legal maxim “actus curiae neminem gravabit”.

Vide para 5, the High Court held thus:

5. This Court, therefore, modifies the order dated 10-1-2018 in exercise of the power of superintendence to the extent that the ad interim order of injunction passed on 17-8-2015 is reimposed from the said date and to continue till the disposal of the injunction applications.

A somewhat similar situation arose before the Madras High Court in T. Gnanasambanthan v. Board of Governors15. In this case, the writ petition was filed challenging the order of discharge passed by the respondents. Through an interim order, the court stayed the operation of the impugned order of discharge. Against this order, a vacate stay petition was filed by the respondents which was not decided within 14 days from the date of filing. Consequently, the respondents issued an office order dated 30-10-2013 relieving the petitioner with effect from 30-10-2013 on the ground that the interim stay automatically got vacated due to Article 226(3) of the Constitution of India. The main issue was whether the stand taken by the respondents on the basis of Article 226(3) to the effect that the stay automatically got vacated is correct or not.

The court noted that due to fault on the part of its Registry and listing section, the application for vacation of interim order could not get listed. This was titled as “act of omission” on the part of the court, warranting invocation of “actus curiae neminem gravabit”. Holding that when the court or its executive machinery is at fault, then the parties should not suffer. Vide para 65, the Madras High Court held thus:

65. But unfortunately, none of the High Courts, whose decisions are relied upon by the respondents, has considered the question from the pedestal of the most fundamental principle of law, namely, that no one shall be prejudiced by an act of court (actus curiae neminem gravabit). An act can either be an act of omission or be an act of commission. The non-listing of an application for vacation of an interim order, if not due to the fault of any of the parties, but due to the fault of the Registry of the court, would fall under the category of “act of omission”. No law can be so absurd as to say that if the court is at fault, the parties shall suffer. I do not think that any case law is required to support the proposition that an act of court shall not prejudice a party.

Vide paras 74-75, the Madras High Court further held as follows:

74. … Take for instance a case, where an application for vacating the stay is taken up for hearing within two weeks of its presentation and the court reserves orders. If orders were not pronounced on or before the expiry of the 14th day from the date of filing of the vacate stay application, could it be said that the party, who obtained an interim stay, should still suffer, despite ensuring that the application is heard within two weeks. It is not within the control of any party to have his application or the opposite party’s application listed for hearing. Even if a party succeeds in getting the application listed within two weeks, it is not in his control to ensure that the application is heard before the expiry of two weeks. Even if a party succeeds in making the court hear the application for vacation of the interim order within two weeks, it is not in his control (especially these days) to ensure that it is disposed of within two weeks from the date of filing of the vacate stay application.

75. Therefore, an interpretation that would put a party, who is not at fault, to disastrous consequences, for the failure of an institution or for the happening of something that is beyond his control, is wholly unjustified. If a statutory provision imposes an obligation upon one party and makes the opposite party suffer for the consequences of non-fulfilment of the obligation cast therein, such a provision cannot be said to be mandatory. Unfortunately, none of the High Courts, whose decisions are relied upon by the respondents, has taken note of this basic difference between the person, on whom, an obligation is cast and the person, on whom, the consequences are made to fall under Article 226(3). Hence, with great respect, I am unable to agree with the views expressed by the other High Courts.

From the above judgments, it is clear that the doctrine of “actus curiae neminem gravabit”, can be rightly invoked to continue and restore interim orders that expired due to faults on the part of Registry or the executing machinery of the court. However, a neat and clear case has to be made out by the party pleading for applicability of the doctrine that it is entitled for restitution due to fault on the part of the court, meaning thereby that more often than not one can claim restitution if due diligence is proved on his part.

View of the Supreme Court of India on extent, expiry and duration of interim orders

Not many judgments are available of the Supreme Court on the issue of duration and existence of interlocutory orders. However, there are two judgments that have taken a strict view on their operability, while there are some others on the other end of the spectrum. The first one at hand is the judgment of Arjan Singh v. Punit Ahluwalia16. In this case, through the interim order dated 2-2-1996, Dr Bawa, one of the respondents, was restrained from transferring the property, which order was to remain in effect till 16-10-1996. An application for extension of the said interim order was filed on this date, but extension could not be granted since the Presiding Officer was on leave on 16-10-1996. Thereafter, the matter was transferred to another court and the interim order was neither extended nor vacated. Therefore, the main issue that arose was whether the order of injunction was operative, so as to attract the provisions of Order 39 Rule 2-A of the Code of Civil Procedure or invoking the inherent jurisdiction of the court under Section 151 thereof. The court held that if the order of injunction was operative up to a particular date, technically the order of injunction shall not remain operative thereafter. Thus, the owner of the land Dr Bawa and Defendant 2 Sanjeev Sharma could have entered into the compromise, to be treating the interim order to be not operative beyond the date it was so held to be. Vide paras 16-17, the Supreme Court held thus:

16. The learned trial Judge passed an interim order on 2-2-1996, which was periodically extended. Indisputably, by reason thereof, Dr Bawa was restrained from transferring the property. A similar order of injunction was passed in Sanjeev Sharma’s case which was made absolute on 28-5-1997. It is, however, again beyond any dispute that the said order of injunction continued from time to time. It was operative till 16-10-1996. It has been noticed by the learned trial Judge that an application for extension was filed. However, because the Presiding Officer was on leave on 16-10-1996 and later the matter was transferred to another court, the interim order was neither extended nor vacated.

17. Was the order of injunction operative so as to attract the provisions of Rule 2-A of Order 39 of the Code of Civil Procedure or invoking the inherent jurisdiction of the court under Section 151 thereof? The learned trial Judge opined that it was so because it was for the court to pass an appropriate order thereunder. The High Court, however, differed with the aforementioned finding of the learned trial Judge to hold that no order of injunction was operative. It, furthermore, held that any transaction carried out in violation of the order of the court is void; it would be a nullity. The decision of the High Court is based on the decisions of different High Courts including Pranakrushna v. Umakanta Panda17, Phani Bhusan Dey v. Sudhamoyee Roy18 and Harbalas v. State of Haryana19. We agree with the High Court on this issue. If the order of injunction was operative up to a particular date, technically the order of injunction shall not remain operative thereafter. The owner of the land Dr Bawa and Defendant 2 Sanjeev Sharma, thus, could have entered into the compromise. The effect thereof would be that the said deed of sale was not binding on the appellant. It would be hit by the doctrine of lis pendens, as adumbrated under Section 52 of the Transfer of Property Act. The said deed of sale would not come in the court’s way in passing a decree in favour of the appellant. Its validity or otherwise would not be necessary to be considered as the appellant is not bound thereby. Sanjeev Sharma and consequently Punit Ahluwalia would be deemed to be aware of the pendency of the suit. Even Section 19 of the Specific Relief Act will be attracted.

A similar issue arose thereafter in Ashok Kumar v. State of Haryana20. The appellant landowners acquired the said lands in 1993 and raised certain construction thereupon. A notification was issued on 20-12-1996 for acquisition of the said lands by the State of Haryana. A suit was filed by the landowners in the Court of the Civil Judge, Senior Division, Panipat, questioning the validity of the said notification. On an application for grant of injunction filed by the appellants, an order of interim injunction was passed on 30-8-1997. The said interim order was extended from time to time. The matter was placed on 28-7-1998 on the ground that the Presiding Officer was to remain on leave on 29-7-1998. The matter was adjourned to 9-9-1998. However, the order of injunction was not extended. After some adjournments, the suit was dismissed for default on 19-8-2000. The main issue was whether the order of an interim injunction granted by the learned Civil Judge, Senior Division, Panipat, was operative till 9-9-1998 or 19-8-2000. The Supreme Court held that the interim order having been extended till a particular date, the contention raised by the respondents herein that they were under a bona fide belief that the injunction order would continue till it was vacated cannot be accepted. It was stated  that although in the earlier order dated 30-8-1997, the term “in the meantime” was used, which was repeated in order dated 24-9-1997, but in the subsequent orders beginning from 29-11-1997, the expression used was “till then”. Vide paras 11-12, the Supreme Court held thus:

11. The short question which arises for consideration in this appeal is as to whether the order of ad interim injunction granted by the learned Civil Judge, Senior Division, Panipat, was operative till 9-9-1998 or 19-8-2000. We have noticed hereinbefore the nature of the orders passed by the learned Civil Judge. Although in its order dated 30-8-1997, the learned Civil Judge, used the term “in the meantime”, which was repeated in its order dated 24-9-1997, but in the subsequent orders beginning from 29-11-1997, the expression used was “till then”.

12. The term of the order of the learned Judge, in our opinion, does not leave any manner of doubt whatsoever that the interim order was only extended from time to time. The interim order having been extended till a particular date, the contention raised by the respondents herein that they were under a bona fide belief that the injunction order would continue till it was vacated cannot be accepted.

From the above exposition, it is clear that a lot depends on the exact language of the interim order passed by the court. If the interim order passed by the court is intended to have a limited effect for a definite time, then in such circumstances, it cannot be held to possess an operation beyond its reach by presumptions. If one follows the view taken by the Supreme Court, then there is no warrant for the proposition, that unless an order of stay passed once even for the limited period is vacated by an express order or otherwise; the same would continue to operate.

However, till date, the Supreme Court of India has not dealt with or adjudicated any case, where arguments have been taken on the applicability of doctrine of “actus curiae neminem gravabit”. Both the judgments of Arjan Singh21 and Ashok Kumar22 were decided essentially on the facts of the case, without delving into the larger issue of applicability of the above Latin maxim. The argument always remains open for an aggrieved party to persuade the Supreme Court to take another view.

With this, the Part I of this article gets concluded. In the sequel to this part, the discussion shall veer around the sharp cleavage of judicial opinion amongst various High Courts on the subject. This cleavage of judicial opinion shows far more serious questions than it answers, requiring intervention by the Supreme Court of India at the earliest to solve one of the complex judicial enigmas which our legal fraternity faces every day.

The remaining discourse on the subject shall continue in Part II of this article to follow after a short while.


† Siddharth R. Gupta is an Advocate practising at Madhya Pradesh High Court and Supreme Court of India.

†† IVth year student, BA LLB (Hons), Dr B.R. Ambedkar National Law University, Sonepat.

1. (1952) 2 All ER 567 at para 288, p. 285.

2. (2014) 8 SCC 470 at para 185.2 : AIR 2014 SC 3241.

3. 1975 AC 396 : (1975) 2 WLR 316 : (1975) 1 All ER 504 : 1975 UKHL 1.

4. 1975 AC 396 : (1975) 2 WLR 316 : (1975) 1 All ER 504 : 1975 UKHL 1.

5. (1999) 7 SCC 1, 13, 14 : AIR 1999 SC 3105.

6. 1975 AC 396 : (1975) 2 WLR 316 : (1975) 1 All ER 504 : 1975 UKHL 1.

7. 6 Ves 73, 92 (1801) : (1801) 31 BR 944.

8. (1837) 11 Bli NS PC 158 : 6 ER 291 (1837).

9. [LR] 3 PC 465, 475 : 1871 UKPC 6.

10. [LR] 17 Eq 561.

11. 1913 SCC OnLine PC 15 : ILR (1913) 35 All 33.

12. 1916 SCC OnLine PC 30 : AIR 1916 PC 85.

13. AIR 1966 SC 1631 : (1964) 2 SCR 145.

14. 2018 SCC OnLine Cal 3056.

15. 2014 SCC OnLine Mad 235 : (2014) 3 Mad LJ 1.

16. (2008) 8 SCC 348, 355, 356 : AIR 2008 SC 2718.

17. 1988 SCC OnLine Ori 35 : AIR 1989 Ori 148.

18. 91 CWN 1078.

19. 1973 Punj LJ 84.

20. (2007) 3 SCC 470, 472, 473 : AIR 2007 SC 1411.

21. (2008) 8 SCC 348 : AIR 2008 SC 2718.

22. (2007) 3 SCC 470 : AIR 2007 SC 1411.

Case BriefsSupreme Court

Supreme Court: In a trade mark infringement case where interlocutory injunction was sought during the pendency of the suit, the bench of L. Nageswara Rao and BR Gavai*, JJ, was faced with a strange situation where at first, an adjournment order of the single judge of Calcutta High Court was treated as a ‘judgment’ and appealed against and later on, in appeal, the division bench took in upon itself to dispose of the interlocutory application instead of relegating it to the court below for its disposal because it did not want to prolong the litigation.

Single Judge Bench’s order

The order was postponement of the question as to whether the respondent-plaintiff was entitled to grant of an ad-interim injunction or not, and that too, by merely three weeks.  The order was only giving an opportunity to the appellants-defendants to file their affidavit-in-opposition within a period of two weeks. The order clarified that no prayer for extension of time shall be entertained.

Was it a ‘judgment’?

There was no adjudication with regard to the rights of the respondent-plaintiff to get an ad-interim injunction during the pendency of the suit.  Though by postponement of the issue with regard to grant of ad-interim injunction, the order might have caused some inconvenience and may be, to some extent, prejudice to the respondent-plaintiff; the same could not be treated as a ‘judgment’ inasmuch as there was no conclusive finding as to whether the respondent-plaintiff was entitled for grant of ad-interim injunction or not.

“As such, the order passed by the learned Single Judge did not contain the traits and trappings of finality. If it is held otherwise, this will open a floodgate of appeals for parties who may even challenge the order of adjournment or grant of time to the other side to file affidavit-in-reply.”

Hence, the said order cannot be construed to be a ‘judgment’ within the meaning of Clause 15 of Letters Patent and as such, the appeal to the Division Bench of the High Court was not tenable.

Division Bench’s order

The Single Judge passed an order on 2nd  April 2019 and the appeal to the Division Bench was filed immediately thereafter in the month of April, though the exact date of filing of appeal is not known. The judgment and order impugned herein was passed after a gap of about 8-9 months from the date of the order passed by the Single Judge.

The perusal of the judgment and order impugned herein would clearly reveal that the counsel for the appellants-defendants had specifically submitted that the appeal was against an ad-interim order and therefore, the appellate court should not interfere by substituting its views but should instead direct a speedy hearing of the interim application of the respondent-plaintiff. The Division Bench of the High Court after recording the said submission, observed thus:

“Before entering into a discussion with regard to the merits of this case I say that all the facts and papers which were necessary for deciding the prima facie case of the parties were before us.  On these facts and evidence we were in a position to assess their respective   prima   facie   case   and   the   balance   of convenience. In those circumstances we propose to dispose of the interlocutory   application   ourselves   instead of entering a prima facie finding and relegating it to the court below for its disposal. That would be unnecessary prolongation of the litigation and utter wastage of time.”

What was wrong with the order?

The Supreme Court could not understand the anxiety on the part of the Division to itself dispose of   the interlocutory application instead of relegating it to the court below for its disposal when it itself took 8-9 months to decide the appeal.

“If the learned Judges of the Division Bench were so much concerned with the prolongation of litigation, they could have very well requested the learned Single Judge to decide the injunction application within a stipulated period. Instead of waiting for a period of 8-9 months, this could have been done by them at the very first instance when the appeal was listed. The hierarchy of the trial court and  the appellate  court  exists  so  that the  trial court exercises its discretion upon the settled principles of law.  An appellate court, after the findings of the trial court are recorded, has an advantage of appreciating the view taken by the trial judge and examining the correctness or otherwise thereof within the limited area available. If the appellate court itself decides the matters required to be decided by the trial court, there would be no necessity to have the hierarchy of courts”

Hence, having waited for 8¬9 months after the Single Judge had passed the order, all that ought to have been done by the Division Bench was to request the Single Judge to decide the application for ad-interim injunction, which in fact, the Single Judge had scheduled to do after three weeks from 2nd April 2019.  It was not even necessary for the Division Bench to have waited till 24th December 2019 and taken the pains of deciding the application at first instance.  It could have very well, in the month of April, 2019 itself, done the exercise of requesting the Single Judge to decide the application as scheduled.

In any event, though the Division Bench of the High Court observes that for deciding the question with regard to grant of interim injunction, it has to put itself in a position as if it was moved to pass an interim order in the suit, it even fails to take into consideration the principles which a court is required to take into consideration while deciding such an application.

Cost Imposed

The Court observed that it is high time that this Court should take note of frivolous appeals being filed against unappealable orders wasting precious judicial time. As it is, the courts in India are already over-burdened with huge pendency. Such unwarranted proceedings at the behest of the parties who can afford to bear the expenses of such litigations, must be discouraged.

Hence, the Court order the respondent-plaintiff to pay a token cost of Rs.5 lakhs to the Supreme Court Middle Income Group Legal Aid Society.

[Shyam Sel and Power Ltd. v. Shyan Steel Industries Ltd., 2022 SCC OnLine SC 313, decided on 14.03.2022]


*Judgment by: Justice BR Gavai


For Appellants: Senior Advocate Mukul Rohatgi

For Respondents: Senior Advocate Neeraj Kishan Kaul

Case BriefsHigh Courts

Delhi High Court: Amit Bansal, J., decided under whether the High Court under Article 227 of the Constitution of India can interfere in the decision of the Commercial Court or not.

Instant petition was filed under Article 227 of the Constitution of India impugning the order passed by the Commercial Court in Arbitration Petition whereby the application for condonation of delay in refiling the Section 34 petition on behalf of the respondents had been allowed subject to costs.

Why did petitioners approach this Court?

Sole Arbitrator had passed an award while partly allowing the claims of the petitioner and dismissed the counterclaims of the respondents. After a year, respondents filed a petition under Section 34 of the A&C Act against the said award and refiled the petition on various dates.

Further, on each filing, certain defects cropped up.

Thereafter, the pecuniary jurisdiction of the Courts below was increased, and the respondents filed a Section 34 petition before the Court of District Judge, and the Commercial Court allowed the application for condonation of delay in filing the Section 34 petition and imposed costs.

On being aggrieved by the findings of the Commercial Court, petitioners approached this Court.

Analysis, Law and Decision

High Court referred to Section 8 of the Commercial Courts Act, 2015 on which the respondents counsel placed reliance.

“8. Bar against revision application or petition against an interlocutory order.—Notwithstanding anything contained in any other law for the time being in force, no civil revision application or petition shall be entertained against any interlocutory order of a Commercial Court, including an order on the issue of jurisdiction, and any such challenge, subject to the provisions of section 13, shall be raised only in an appeal against the decree of the Commercial Court.” 

Bench stated that the observations of the Division Bench of the Delhi High Court in Black Diamond Track Parts (P) Ltd. v. Black Diamond Motors (P) Ltd.,2021 SCC OnLine Del 3946 are fully applicable in the facts and circumstances of the present matter.

High Court noted that the scope of interference by this Court in exercise of jurisdiction under Article 227 of the Constitution of India were extremely narrow and limited only in respect of orders that were patently lacking inherent jurisdiction. Present case was not the one where the impugned order was passed by the Commercial Court without inherent jurisdiction.

Court stated that even though there may be some merit in the contentions raised by the petitioners with regard to the non est filing, that cannot be a ground for this Court to exercise jurisdiction under Article 227 of the Constitution of India and interfere with the decision of the Commercial Court.

If the above would be done, it would completely frustrate the objective behind the Commercial Courts Act, that commercial matters should be decided expeditiously and parties may not challenge interlocutory orders passed in the proceedings, except those which were specifically appealable.

Hence, no ground for interference by this Court was made out. [Ashok Kumar Puri v. S. Suncon Realtors (P) Ltd., 2021 SCC OnLine Del 5220, decided on 10-12-2021]


Advocates before the Court:

For the Petitioners:

Mr Ajay Kapur, Sr. Advocate with Mr Harshbir Singh Kohli and Ms Mahima Dang, Advocates

For the Respondents:

Mr Amit Khemka, Mr Rishi Sehgal and Mr Midhun Aggarwal, Advocates

Case BriefsHigh Courts

Bombay High Court: Vibha Kankanwadi, J., dismissed a writ petition filed against the order of the Sessions Judge whereby he had reversed the decision of the Magistrate who had directed the respondent herein to deposit 10% of the cheque amount.

The petitioner had filed a complaint against the respondent alleging the commission of the offence punishable under Section 138 (dishonour of cheque) of the Negotiable Instruments Act, 1881. Subsequently, the petitioner filed an application before the Magistrate praying to direct the respondent to deposit 20% of the cheque amount in view of the provisions under Section 143-A of NI Act. The Magistrate partly allowed the said application and directed the respondent to deposit 10% of the cheque amount.

The respondent challenged the said order of the Magistrate before the Sessions Judge, who reversed the order of the Magistrate. Aggrieved, the petitioner filed the instant writ petition. He contended that the order passed by the Magistrate was purely an interlocutory order as the trial was still pending, and therefore, the revision itself was barred under Section 397(2) CrPC.

At the outset, the High Court noted that the instant complaint was filed by the petitioner before Section 143-A came into force. Relying on G.J. Raja v. Tejraj Surana, 2019 SCC OnLine SC 989, reiterated that the operation of the said section is only prospective, i.e., it does not apply to the complaints filed before the section came into force. Thus, the High Court held that the provision under which the petitioner was seeking relief (i.e., under Section 143-A) was in fact not available to him, as the complaint was filed in the year 2017, however, Section 143-A was inserted in the statute book with effect from 1-9-2018.

The High Court then considered the submissions regarding the order passed by the Magistrate being interlocutory in nature and therefore not being amenable to revision by Sessions Judge. The Court relied on the decisions in Madhu Limaye v. State of Maharashtra, (1977) 4 SCC 551 and V.C. Shukla v. State, 1980 Supp SCC 92, and restated that in order that an order would be “interlocutory order”, it will have to be seen as to whether the rights of a person are affected.

In the instant case, the High Court held that, “Magistrate applied that provision of law which was not all applicable to the case in hand before him, therefore, definitely it had affected the right of the accused. Consequently, it cannot be said that, the order which was passed by the learned Magistrate was purely “interlocutory order” as contemplated under Section 397(2) CrPC.” Therefore, the Sessions Judge was justified in setting aside the said order by exercising his power under Section 397(1) of CrPC.

Resultantly, the instant writ petition was dismissed. [Hitendra v. Shankar, 2019 SCC OnLine Bom 5644, decided on 11-12-2019]

Case BriefsForeign Courts

Court of Appeal for the Democratic Socialist Republic of Sri Lanka: The Bench of M.M.A. Gaffoor, J. dismissed an appeal against an order rejecting an intervention application in a suit for partition, holding that the same was statutorily barred and because the impugned order was merely an interlocutory order.

Appellant herein was a plaintiff in a partition suit filed in the District Court of Kurunegala and have given evidence before the learned District Judge in the trial. Since the respondent-defendant contested the suit only on the basis of appellant-plaintiffs evidence, the case concluded and a final decree was issued. Thereafter, appellant-plaintiff filed an application for intervention under Section 328 of the Civil Procedure Code, 1890 in order to file their objections to dispossession. After an inquiry, the learned District Judge dismissed the said petition of the appellant-plaintiff. Aggrieved thereby, the instant appeal was filed.

Counsel for the respondent-defendant Mr Gayanga Wijethunga submitted that the instant appeal was not maintainable on the following grounds:

  • There is no right of appeal as the impugned order was not a final order but only an interlocutory order.
  • In any event, there is no right of appeal as Section 329 of the Code bars an appeal from an order made under Section 328 of Code.

At the outset, the Court held that the impugned order was an interlocutory order in terms of Section 754(2) of the Civil Procedure Code. Reliance in this regard was placed on Senanayake v. Jayantha, SC Appeal No. 41/15 and SC CHC 37/08, where it was held that if an order finally disposes of the matter in dispute, it is a final order but if the nature of order is such that it allows the action to go on, then it is an interlocutory order. Further, it was opined that the effect of an order under Section 328 is subject to the same conditions of appeal. As such, denial of a right of appeal is embodied in Section 329 of the Code itself.

In view of the above, the appeal was dismissed.[Wannahaka Mudiyanselage Heen Amma v. Wijesingha Mudiyanselage Punchi Banda Wanaduragala, C.A. 445/97 (F), decided on 05-04-2019]

Case BriefsHigh Courts

Bombay High Court: A Division Bench comprising of B.R. Gavai and M.S. Karnik, JJ. dismissed a petition filed against the order of the Arbitrator whereby petitioner’s application challenging the arbitration proceedings was rejected.

In view of the agreement between the parties, arbitration proceedings were commenced with one R.S. Bhandurge as the sole arbitrator. However, after a period of one year, he discontinued and the present arbitrator came to be appointed as the sole arbitrator by the respondent. The petitioner filed an application that continuation of arbitration proceedings by the present arbitrator was not permissible in law. This application was rejected by the sole arbitrator. Aggrieved thereby, the petitioner preferred the instant petition.

The High Court perused the record and found that contentions raised on behalf of the petitioner were without substance. Reference was made to Supreme Court decision in SBP and Co. v. Patel Engineering Ltd., (2005) 8 SCC 618 wherein the Apex Court had held that once the arbitration proceedings have commenced, the parties will have to wait until the award is pronounced, unless a right of appeal is available at an earlier stage under Section 37 of the Arbitration and Conciliation Act, 1996. It was observed that the High Court while exercising power under Article 226 or 227 of the Constitution, cannot entertain any petition challenging an interlocutory order passed in arbitration proceedings. In light of the above, the petition was dismissed. [Suchitra Chavan v. Axis Bank Asset Sales Centre,2018 SCC OnLine Bom 2854, dated 10-09-2018]