Extent, Existence and Expiry of Interim Orders – A Judicial Enigma Part – II

Under Part I of this article, discussions revolved around the origins and roots of interlocutory orders of courts; the latin maxim of and its applicability to extension and expiry of interim orders; view of the Supreme Court of India on the duration and continuity of interim orders bearing a fixed time limit. To ensure that the article is engaging and does not lose the reader’s attention for its verbosity, it is being split into two parts. Part II of the article shall take the lead from where Part I concluded, where we shall be elaborating on the remaining sub-topics on the subject viz.:

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

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

G. Epilogue

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

Unlike the Supreme Court of India, the various High Courts have dealt with the issue of continuation, duration, expiry and extent of interim orders in differential ways. As stated earlier, there is a sharp cleavage of opinions taken by High Courts, which have further compounded the confusion, instead of devising well-defined solutions to it. The divergent views of High Courts across the country shall be discussed meticulously.

In Ashiq Ali v. Mohd. Shakeel¹, the Allahabad High Court passed an ad interim order on 12-7-1985, fixing the next hearing of the matter in the week commencing 5-8-1985. Through the interim order, the time for depositing the directed amount, as also mesne profits was extended till 31-7-1985. It was further ordered that till the next date of listing (i.e. week commencing from 5-8-1985), the petitioner shall not be evicted from the premises in question provided he complies with the conditional order. On the next date so scheduled i.e. 7-8-1985, the case could not be taken up as Mr Justice D.N. Jha did not hold court on the said date.

The issue arose when the opposite parties pressed for execution of the eviction decree against the petitioner on the ground of the order having automatically expired on 7-9-1985, it being not extended when it was listed for hearing. The High Court held that the interim order dated 12-7-1985 did not stand vacated automatically as on the next date of listing i.e. 7-8-1985, the case was not taken up for hearing at all, since the court itself did not sit in session. The result was that the ad interim order dated 12-7-1985 was deemed to have been continued, in view of specific wordings “till the next date of listing”. Vide para 4, the High Court held thus:

4. In my opinion, the said order dated 12-7-1985 did not automatically stand vacated because on the next date of listing i.e. 7-8-1985 the case was not taken up for hearing as D.N. Jha, J. before whom the case was listed in the cause list, had not held court. The entire cause list listed before D.N. Jha, J. stood adjourned. The effect of it would be that the ad interim order dated 12-7-1985 with regard to stay is to continue till next date of listing. I, however, pass specific order to the effect that till next date of listing a the case in the week commencing 2-9-1985, the petitioner shall not be evicted from the premises in question provided they have complied with the terms of order dated 12-7-1985. List the case for orders/hearing in the week commencing on 2-9-1985. Copy of this order be supplied to the learned counsel for the petitioner on payment of necessary charges today.

In yet another case of Shambhoo Nath Singh Yadav v. State of U.P.², the petitioner had prayed for the extension of the interim order dated 28-5-1993 till the application under Section 482 CrPC has been disposed of. The relevant portion of the order dated 28-5-1983 reads thus:

Till the next date of listing the proceeding of Crime No. 134 of 1979 (Criminal Case Nos. 260 of 1993 to 262 of 1993 in re: State v. Shambhoo Nath Singh Yadav) pending in the Court of Judicial Magistrate, 1st Class, Barabanki shall remain stayed.

Therefore, through its interim order, the criminal proceedings against the petitioner pending before the trial court were stayed “till the next date of listing”. Question arose about the continuity of the said interim order before the High Court, in the context of which, Vide paras 3 and 4, the Allahabad High Court held that:

3. In my opinion the order passed by this Court on 28-5-1993 is amply clear and it means that further proceedings in the case shall remain stayed until the order is modified or vacated by some subsequent order. The words “till the next date of listing” implies that the case is listed and some further order is passed. I do not agree that the words “till next date of listing” should be interpreted literally. If a narrow and literal interpretation is given to the above words it will lead to uncertainty and make the High Court is order obscure. Judicial orders are to be certain in the meaning so that subordinate courts or other authorities may not be in any confusion and starts acting according to their own choice and whim. The next date of listing is neither known to the subordinate courts or to other authorities. A case may be listed in the very next week while another case may not be listed for a year and hence the subordinate courts or other authorities who are bound by the stay order will never know how long the stay order has to continue. Listing of a case in the cause list has no magic in itself. Even if a case is listed on a particular day, it may not be taken up on account of a variety of reasons; there may be no sitting of the court on the day of listing or due to pressure of other work the case may not be taken up for further orders. If listing alone determines the length of time during which the order has to survive the office of the High Court will become the real arbiter and it may or may not list a case at its choice. It is for the court to mention a clear date if it chooses to pass a time-bound stay order and not for the office to shorten or to give a long rope to the operation of a stay order.

4. The words “till the next date of listing” are, therefore, to be interpreted in a reasonable manner and not in a manner which may lead to absurdity or created confusion. Thus the words “till the next date of listing” are quite clear and certain in their meaning that the stay order has to continue till any subsequent order is passed by the court.

Therefore, in this case, the stay order dated 28-5-1993 was held to continue to operate till it is expressly modified or vacated by the court by any subsequent order passed in judicial convened proceedings.

A Single Bench of the Allahabad High Court, in another case of Ram Abhilakh Mishra v. Cane Commr.³, was confronted with a similar issue. In this case, an application for extension of interim order passed earlier on 8-2-1994 was filed. The case was directed to be heard on 22-7-1994 and a special mention was made on the said date before the court in session to extend it, but no order could be passed due to paucity of time, as the court hours got over. The matter was “not reached”. The opposite party pleaded that the interim order stood lapsed automatically. The principal issue was whether, in the circumstances where the case could not be taken up due to paucity of time and excessive workload on the courtroom, can a judicially passed interim order on merits be treated to have been lapsed automatically or not? The High Court, Vide para 4, held thus:

“4. I have given my anxious consideration to this aspect of the matter and am of the view that a judicial order continues until and unless the same is vacated or not extended on the case being taken up. It shall not lapse of its own when the case though shown in the daily cause list but is not taken up by the court. Everyday about 50-60 or more cases are listed in the daily cause list but only extremely urgent cases on the request of the counsel are taken up and the rest of the cases are not even called out due to lack of time. In these circumstances merely because the order was not extended by passing another judicial order, it cannot be said that even in absence of any order being passed by the court the interim order earlier passed lapses automatically.”

The High Court held that the interim order passed after due consideration of merits of the matter does not cease to exist merely because the court did not take up the case for hearing for paucity of time.

In another case decided by the Bombay High Court of Govinda Bhagoji Kamable v. Sadu Bapu Kamable⁴, the term “in the meanwhile” fell for consideration in its operation and effect for its duration and extent . Facts were that on 16-10-2002, the Bombay High Court passed the order on the civil application filed by the appellant for stay stating:

“Notice to respondents returnable on 9-12-2002.

In the meanwhile ad interim ex parte relief in terms of prayer clause (b).”

The interim order further stated that it was to remain operative till 9-12-2002. The party which was to comply with the interim order, pleaded that the operation of the order existed only till 9-12-2002, whereafter they would have proceeded with the exercise of partition for the reason and on the footing that the ad interim stay granted by the High Court was operative only till 9-12-2002. The Tahsildar executed the decree on 7-11-2003 by dispossessing the appellants, when the dispute arose whether the stay granted by the court was operative only till the returnable date i.e. 9-12-2002, or it was “to continue” till final disposal of the civil application or till further orders until it is expressly modified by the court itself. The High Court whilst interpreting the phrase “in the meanwhile”, Vide para 15, held :

15. … From the plain reading of the order, it is very clear that the order of ad interim stay was not limited to any particular date. The first part of the order directs issuance of the notice to the respondents and it is ordered to be made returnable on a particular date. It is further stated that in the meanwhile ad interim ex parte relief is granted. It is crystal clear from the order that the intention of this Court was to issue notice and to grant stay in the meanwhile. The phrase “in the meanwhile” is used in the order granting stay. The dictionary meaning of the word meanwhile is “till happening of a particular event” or “until something expected happens”. When the stay was to be operative in the meanwhile, it was to operate up to happening of a particular event. The said event was hearing of the application after service of notice to the respondents. Whenever this Court intends to grant ad interim relief limited to a particular date, it is always mentioned in the order very specifically that the ad interim relief will be operative till a particular date. When this Court issued notice and granted ad interim relief in the meanwhile, it was obviously intended that the ad interim relief will operate till the application was heard by this Court after service of notice. When this Court makes notice returnable on a particular date, it cannot be argued that the date mentioned in the notice is the date on which the application will be positively heard. The returnable date mentioned in the order is the returnable date fixed for the notice. It is a date fixed for appearance of the parties. It is not necessary that on the returnable date fixed by this Court, the case appears on the board. When this Court issued notice to the respondents and granted ad interim relief “in the meanwhile”, it is obvious that the ad interim relief was to operate till the court heard the parties on the basis of the notice issued or till order of stay was specifically vacated by this Court. Whenever, the court intends that the ad interim relief will operate till the returnable date, it is specifically mentioned in the order that ad interim relief will operate up to a specific date or till the returnable date of notice. When ad interim relief is granted “in the meanwhile” after issuance of notice to the contesting party, the said relief continues to operate until the event of hearing of the application. The order cannot be read to mean that the interim relief is operative only till the returnable date of the notice.

In view of the specific wordings, therefore the interim order was held to be operative till the final disposal of the application, and not delimited only till the returnable date i.e. 9-12-2002.

The Uttaranchal High Court also had an occasion to deal with a somewhat similar issue on the operation of interim orders with restricted wordings in Centre of Excellence in Disaster v. S.K. Dynamics (P) Ltd.⁵ In the context of contractual dispute between the parties referred to arbitration, respondents moved an application under Section 9 of the Arbitration and Conciliation Act, 1996 seeking injunction against the invocation of the bank guarantee which was lying with the bank, to be not invoked at the instance of the appellant. The interim relief sought for the by the respondents was awarded by the learned District Judge on 28-2-2015 restraining the bank from tinkering with bank guarantee till 4-3-2015, unless otherwise ordered by the court. The bank guarantee was valid up till 10-3-2015 and when the matter was taken by the Court of District Judge on 4-3-2015, though the bank guarantee was extended up to 9-4-2015, owing to the inadvertence on the part of the parties in reminding the court, somehow no order for extension of the stay against invocation of the bank guarantee could be passed.

The appellants, consequently, got the remaining bank guarantee encashed in their favour on 7-3-2015, presuming the interim order to have losts its effect and fangs. The District Judge then irked with the conduct of the appellants ordered on 9-3-2015 extending the restraint order till 8-4-2015, directing the appellant to deposit such bank guarantee again in the bank. It was this order dated 28-7-2016 (extending the effect of interim order dated 4-3-2015 despite no express mention of extension) which came to be challenged before the High Court being in excess of jurisdiction by the District Court. Vide para 13, the Uttaranchal High Court after examining the merits of the matter and specifically the conduct of the parties held thus:

13. On this controversy, it would be quite germane to refer the judgment of this very court passed on 9-8-2016 in Civil Revision No. 42 of 2016 and connected matters, wherein a number of precedents have been discussed, like Ram Abhilakh Mishra v. Cane Commr.⁶; Ashiq Ali v. Mohd. Shakeel⁷, and Vishnu Dutt Sharma v. Regl. Joint Director of Education⁸, and it was held that time-bound stay orders do not cease to be effective by efflux of time. The result in law is that time-bound order has the same effect as an order till further orders of the court. In other words, it continues to operate till it is recalled, vacated or modified or specifically mentioned by the court “not extended”.

The High Court thus treated the interim order dated 4-3-2015 relating to the extension of the restraint against invocation of the bank guarantee at the instance of the appellant as very much in existence on 8-4-2015, despite no clear/express mention of the same in the order dated 4-3-2015.

From the long line of above judgments, it is crystal clear that interim orders passed after due application of judicial mind and evaluation of merits of the matter must be respected and must not be treated to have been washed away on technicalities. Interim orders passed after considering the three factors necessary for them being passed are not sand gravels on the seashore getting eroded by a subsequent seawave. They have their own sanctity, which must be held to be sacrosanct, unless otherwise specifically directed in the order granting interim relief itself.

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

There is another set of judgments delivered by the High Courts, taking a completely contrary view declining to extend interim orders beyond a particular date, when they were specifically meant to be operative up to a particular date.

In Searle (India) Ltd. v. M.A. Majid⁹, the appellant was a defendant in the original case wherein the plaintiff prayed that the appellant be directed to continue the clearing and forwarding of the plaintiff’s agency as per their agreement dated 11-11-1986 which was later renewed and confirmed by letter dated 12-4-1994. Plaintiff filed an application for interim injunction against the appellant, his agents and servants from acting in any manner upon the termination letter dated 18-1-1997. He was successful in obtaining an interim order which was directed to remain in force till 11-3-1997.

The plaintiff had neither produced the agreement nor the terms of agreement according to which the suit was to be adjudicated by the Court of Bombay. He also failed to disclose the arbitration clause in the agreement. The appellant-defendants challenged the maintainability of the suit proceedings, on the next scheduled date of hearing, which was 11-3-1997. However, for some reason, the matter could not be taken up for hearing and was adjourned to 18-3-1997, on which date, the case was reserved for judgment on the question of maintainability. The beneficiary of the interim order, however, overlooked to mention and request for extension of the said interim order, when the court also did not direct for its continuation. During this time, the appellant acted in contravention of the interim order. On 31-3-1997, the judgment was pronounced and the interim order passed earlier was continued for 3 more weeks. TThe plaintiff filed a contempt petition alleging breach of interim order of injunction against the appellant for the intervening period between 18-3-1997 and 31-3-1997.

Question arose on the effect of non-extension of the interim order which was in force till 18-3-1997 and whether the interim order could have been treated to be in operation till the date of judgment i.e. 31-3-1997. Vide paras 12-14, the Division Bench held thus:

12. A litigant is not to be taken by surprise as to the conduct that is required of him, in the absence of clear and specific direction in an order duly made by the court. When the plaintiff applies for an injunction, and the court makes an order granting ex parte injunction for a specific period and thereafter continuing the injunction for a further specified period, and does not renew it at the end of that period, the opposite party is entitled to act on the basis that he is no longer subject to the restraint, unless such opposite party had undertaken acting by himself or through counsel that it would treat the injunction as continued to be in force, thereby making a further order of the court unnecessary, or the court had directed orally or otherwise that the parties should not act contrary to the injunction that had been issued earlier for any further period.

13. The fact that on the date of expiry of that injunction the case was heard and judgment reserved, would not, on that score alone have the effect of extending the order of injunction, unless a specific direction to that effect is made by the court acting on it is own or at the instance of any of the parties.

14. There is no presumption in law that when an interim injunction is issued up to the specified date and the case is heard on that date, but the judgment is not pronounced on the same date, the interim injunction is “deemed” to have continued till such time the judgment is pronounced.

Therefore, the Court held that the understanding of the appellant that there was no injunction in force after 18-3-1997 till 31-3-1997, was correct.

In State of U.P. v. D.A.V. Inter College¹⁰, an intra-court appeal was filed against the judgment of Single Bench of the same court, which took a view on the automatic continuity of interim orders passed once by the court after due consideration of merits. The Division Bench of the Allahabad High Court whilst deciding the appeal relied extensively upon the judgments of Supreme Court in Ashok Kumar v. State of Haryana¹¹ and Arjan Singh v. Punit Ahluwalia¹² and held, vide para 5, as follows:

5. The aforesaid two judgments of the Supreme Court squarely apply here also. It cannot be said that an interim order passed for a limited period would continue automatically if for one or the other reason the case could not be taken up by the court. If court has passed interim order for a limited period, unless that order is extended, it would not continue automatically. The view taken by the Single Judge is in the teeth of the law laid down by the Supreme Court, as discussed above and, therefore, cannot sustain.

Accordingly, the judgment of the Single Bench was set aside, which had held for automatic continuation of the interim order.

In yet another landmark judgment of Allahabad High Court in Karam Chand Thapar Bros. (C.S.) Ltd. v. Nandini Roofing System (P) Ltd.¹³, the petitioner on being fraudulently induced by the respondents parted with huge amounts towards purchase of raw material for some construction work. The respondent did not deliver the sheets, and to the contrary, even threatened to sell the raw material and machinery in the open market. This led to initiation of criminal proceedings, which were taken up to the High Court, which granted ad interim stay to be operative “till the next date of listing” on 13-3-2008. The case was listed thereafter, on multiple dates but the interim order was never extended on those dates with express mention of the judicial proceedings. In this backdrop, the question arose whether the trial court could have proceeded with the pending criminal proceedings in the absence of any explicit extension of the interim stay on subsequent dates by the High Court. Vide para 15, the High Court answered the question as follows:

15. … There should be no doubt in the mind of the court below that interim stay order once granted by this Court for a limited period will not continue to be effective even in future though not specifically extended on future dates. The case is remanded back to the trial court to pass a fresh order in the light the law laid down by the Supreme Court in the aforementioned case and to proceed further with the case.

The Madras High Court has also subscribed to a somewhat similar view in Sri Paulthai Lorry Booking Office v. T.N. Civil Supplies Corpn.¹⁴ The petitioner who was a transporter by profession was blacklisted by the respondent Corporation laid a challenge to the same before the High Court. The High Court through its order 8-2-2016 stayed the blacklisting order for a limited period of 3 weeks which for some reason, which the High Court declined to extend later on 12-7-2017. The petitioner in this backdrop argued that the interim order was not limited one with an expiry date, but was to enure till the final disposal of the writ proceedings. Answering this contention of the petitioner, vide para 5.14, the High Court held thus:

5.14. On a careful consideration of respective contentions, in the light of surrounding facts and circumstances of the present case in a conspectus fashion and in the teeth of observation made by the learned Single Judge, in the impugned common order dated 25-10-2017 in WP (MD) Nos. 13606 to 13608 of 2017, inter alia to the effect that the order of blacklisting the petitioner was stayed in WMP (MD) No. 2396 of 2016 in WP (MD) No. 2712 of 2017 for a period of three weeks by an order of this Court dated 8-2-2016. However, subsequently, no record to show that the interim order of blacklisting had been extended and hence, this Court is not able to subscribe to the contentions made by the learned Senior Counsel for the petitioner.…

The court therefore stated that in absence of any extension of the interim order of blacklisting, the petitioner’s contention cannot stand. It further said that it was not clear whether the interim order was for a limited period or not and unless it is expressly mentioned in the judicial order that the order shall survive the whole proceedings, it could not have been presumed to be so.

G. Epilogue

Interim orders constitute an essential and indispensable ingredient of any litigator’s practice. Every lawyer’s concern at the time of filing any civil, criminal or writ application is to somehow extract one or the other interim order from the court. The principal focus therefore for the petitioner-appellant’s counsel is always on the interlocutory order, whatever best possible may be extracted from the court in the initial dates of hearing. The euphoria of getting an interim order from the court on most of the occasions leaves the counsel oblivious of the extent, duration and life of the interim relief granted to him. The dangerous state of bliss after procuring the interim order makes the counsel unmindful of the precise language used in the same that makes it short-lived and only transient. It is therefore very necessary that the counsel getting the interim order from the court must be conscious of imploring the court of articulating the interim order in a way that it survives on its own, even if not extended expressly by the court. The article has referred to numerous instances, where only because of ambiguity in phrasing of interim orders, they die their own death if not given a fresh lease of life on the next date of hearing. The ideal proposition of law would be that if any court passes a well-considered self-speaking interim order, after evaluating all the three applicable factors for grant of interim relief, then such a speaking order should be expressly vacated on subsequent hearing, instead of disappearing on its own for some inadvertent defect relating to its duration. This would save a lot of precious judicial time wasted in deciding disputes and questions pertaining to the expiry date of such interim orders reflecting bad judicial drafting.

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