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Wednesday, July 24, 2013

Granting of protective relief even after withdrawal of suit can be granted so as make the party to avail suitable remedy in correct forum =in the interest of justice the court has inherent power to continue interim relief even after disposal of a case.= it is very clear that if a petition is not maintainable and is ultimately withdrawn, the court should not continue interim relief for a period beyond withdrawal of the writ petition. However, the afore stated observation would not apply to a case where the matter is heard on merits and after considering the facts of the case the court permits withdrawal of the case. In such a case, the court is at liberty to extend the interim relief or can grant interim relief for a limited period after recording reasons for the same. 18. In view of the facts of the case, in our opinion, the High Court was not in error while extending the interim relief for some time while permitting withdrawal of the appeal as the High Court has also recorded the reasons for which the interim relief was extended till 10.5.2010. 19. In view of the aforestated legal position, in our opinion, the High Court did not commit any error while extending the interim relief especially when the matter was heard on merits by the court and only to facilitate the appellants therein, the High Court had permitted withdrawal of appeal. 20. In the circumstances, we dismiss the appeal with no order as to costs. Interim relief which had been granted earlier by this Court stands vacated.

                            published in    http://judis.nic.in/supremecourt/imgst.aspx?filename=40571             
                    REPORTABLE

                        IN THE SUPREME COURT OF INDIA

                        CIVIL APPELLATE JURISDICTION

                        CIVIL APPEAL NO. 5499 OF 2013
                 (Arising out of SLP (C) No. 12909 of  2010)



M/s. Hotel Queen Road Pvt. Ltd. & Ors.       …APPELLANTS


                                VERSUS

Mr. Ram Parshotam Mittal & Ors.          ....RESPONDENTS

                                    WITH

                     S.L.P.(C) NO.       CC No.20730   OF 2009



                              1 J U D G M E N T




1 ANIL R. DAVE, J.



   1. Leave granted.
   2. Though the present litigation has  a  chequered  history,  we  do  not
      propose to go into the details of the litigation for the  reason  that
      by virtue of the impugned order dated 20th April, 2010 passed  in  FAO
      (OS) 349 of 2009 by the High Court of Delhi, the appellants  i.e.  the
      present respondents had been permitted to withdraw the said appeal.
   3. It appears that the appeal was substantially heard by the  High  Court
      but as the High Court was not persuaded to grant  any  relief  to  the
      appellants  therein,  the  appeal  was  withdrawn  so  as   to   avail
      alternative remedy available to the appellants.
   4. The appeal was permitted to be withdrawn.  
In  normal  circumstances,
      the present appellants, who were the respondents in the  said  appeal,should not have been aggrieved by withdrawal of the  appeal  but  they are aggrieved because of certain observations made by the  High  Court while permitting withdrawal of the  appeal.   
The  said  observations,
      which have been objected to, are reproduced hereinbelow :
      “…All that we wish to observe is what we have said earlier,  that  the
      impugned order does, in fact, partake of a prima facie finding.


       Nothing in these Orders shall  preclude  or  prevent  either  of  the
      parties to make legal submissions before appropriate Forums.


       On 3.3.2010,  we  had  restrained  the  Respondent  from  alienating,
      selling or creating any third party interest in the Rights issue dated
      30.07.2009.  
When we had passed these Orders, we were desirous only to
      maintain status quo.  
We clarify that it was not passed at that stage,
      weighing the respective strength of the cases.  
In our view, we  think
      it appropriate  and  expedient  to  extend  the  interim  orders  upto
      10.05.2010.”


   5. It was mainly submitted that no such observation could have been  made
      by the Court while permitting withdrawal of the appeal and the interim
      relief which had been granted earlier in the appeal  should  not  have
      been continued even after withdrawal or disposal of the  said  appeal.
      It is clear from the afore stated order that the interim  relief  which
      had been granted during the pendency of the appeal had  been  extended
      till 10th May, 2010.

   6. The parties have been referred to herein below as they had been arrayed
      before the Division Bench of the High Court.

   7. So far as the observations made in the impugned order with  regard  to
      the findings of the learned single Judge are concerned, we are of  the
      view that the said observations cannot be said to be incorrect.

   8. Upon perusal of the impugned order, we find that while  seeking  leave
      to withdraw the appeal, a request was  made  by  the  learned  counsel
      appearing for the appellants, which has  been  recorded  by  the  High
      Court as under:

      “He seeks leave to withdraw the Appeal with a clarification  that  the
      observation and decision contained in the impugned  order  should  not
      influence the mind of either of the aforementioned Judicial Forums.”




   9. With  regard  to  the  afore stated  request  made  on  behalf  of  the
      appellants in  relation  to  withdrawal  of  appeal,  the  High  Court
      observed as under:-

      “Since the Appeal has been substantially heard, we are  not  persuaded
      to make any observation as prayed for by the Appellant.  We shall only
      state that what is palpable from the legal position that the views and
      decisions contained in the impugned order  are  perforce  of  a  prima
      facie nature.”




  10. Thus, upon reading the impugned order, the High Court did not ask  the
      authority, which was to be approached  by  the  appellants,  that  the
      observations made by the learned single Judge should be ignored.   The
      order of the  learned  single  Judge  was  to  be  challenged  by  the
      appellants before another forum and therefore, the Division Bench  did
      not state anything on the merits of the order passed  by  the  learned
      single Judge.  In our opinion, the Division Bench had  made  innocuous
      observations which cannot be said to be unjust or improper.

  11. We have heard the learned counsel appearing for both  sides  and  have
      also considered the judgments cited by them.

  12. So far as the direction with regard to  continuation  of  the  interim
      relief upto 10th May, 2010 is concerned, the learned counsel appearing
      for the appellants had submitted that upon disposal of the appeal, the
      High Court had become functus officio and therefore,  the  High  Court
      ought not to have extended the interim  relief  upto  10th  May,  2010
      especially when the appeal had been withdrawn on 20th April, 2010.

  13. The learned counsel appearing  for  the  appellants  had  relied  upon
      certain judgments of this Court to the effect that upon final disposal
      of a case, the court becomes functus officio and therefore, the  court
      should not extend interim relief.  The learned counsel had relied upon
      the observations made in para 24 of the judgment delivered in the case
      of Ajay Mohan and  Others v. H.N. Rai and Others  (2008)  2  SCC  507,
      which reads as under :

      “24. The order of the City Civil Court dated 13-10-2006 may be bad but
      then it was required to be set aside  by  the  court  of  appeal.   An
      appeal had been preferred by the appellants there against but the  same
      had been withdrawn.   The  said  order  dated  13-10-2006,  therefore,
      attained finality.  The High Court, while allowing  the  appellant  to
      withdraw the appeal, no doubt, passed an order of  status  quo  for  a
      period of two weeks in terms of its  order  dated  23-11-2006  but  no
      reason therefor had been assigned.  It ex facie had no jurisdiction to
      pass such an interim order.  Once  the  appeal  was  permitted  to  be
      withdrawn, the Court became functus officio.   It  did  not  hear  the
      parties on merit.  It had not assigned any reason in support  thereof.
      Ordinarily, a court, while allowing a party  to  withdraw  an  appeal,
      could not have granted a further relief.   (See  G.E.  Power  Controls
      India v. S. Lakshmipathy.)




  14. On the basis of the aforestated contents of para 24  in  the  case  of
      Ajay Mohan (supra), it had been submitted that upon withdrawal of  the
      appeal, the High Court should not have  extended  the  interim  relief
      without assigning any reason, especially when the High Court  had  not
      heard the parties on merits.

  15. On the other hand, it  had  been  submitted  by  the  learned  counsel
      appearing for the respondents that in  the  interest  of  justice  the
      court has  inherent  power  to  continue  interim  relief  even  after
      disposal of a case.  So as to substantiate the  aforesaid  submission,
      the learned counsel appearing for the respondents had relied upon  the
      judgment delivered in Padam Sen and Another v.  The   State  of  Uttar
      Pradesh 1961(1) S.C.R. 884.

  16. Similar issue had arisen in the case of
The State of Orissa  v.  Madan
      Gopal Rungta A.I.R. (39) 1952 S.C.12.
A five-Judge Bench had observed
      in the said judgment that:-
      “…In our opinion, Art. 226 cannot be used for the  purpose  of  giving
      interim relief as the only and final relief on the application as  the
      High Court has purported to do.  
The directions have been  given  here
      only to circumvent the provisions of S. 80, Civil  P.C.,  and  in  our
      opinion that is not within the scope of Art.226.   
An  interim  relief
      can be granted only in aid of and as  ancillary  to  the  main  relief
      which may be available to the party  on  final  determination  of  his
      rights in a suit or proceeding.  
If the  Court  was  of  opinion  that
      there  was  no  other  convenient  or  adequate  remedy  open  to  the
      petitioners, it might have proceeded to investigate the  case  on  its
      merits and come to a decision as to whether the petitioners  succeeded
      in establishing that there was an infringement of any of  their  legal
      rights which entitled  them  to  a  writ  of  mandamus  or  any  other
      directions of a like nature; and pending such determination  it  might
      have made a suitable interim order  for  maintaining  the  status  quo
      ante.  
But when the Court declined to decide  on  the  rights  of  the
      parties and expressly held  that  they  should  be  investigated  more
      properly  in  a  civil  suit,  it  could  not,  for  the  purpose   of
      facilitating the institution of such suit,  issue  directions  in  the
      nature of temporary injunctions, under Art.226  of  the  Constitution.
      
In our opinion, the language  of  Art.226  does  not  permit  such  an
      action.  
On that short ground, the judgment of the Orissa  High  Court
      under appeal cannot be upheld.”




  17. In view of the aforestated judgments,
it  is  very  clear  that  if  a
      petition is not maintainable and is ultimately  withdrawn, 
 the  court
      should not continue interim relief for a period beyond  withdrawal  of
      the writ petition.  
However, the  afore stated  observation  would  not
      apply to a case  
where  the  matter  is  heard  on  merits  and  after
      considering the facts of the case the court permits withdrawal of  the
      case. 
 In such a case, the court is at liberty to extend  the  interim
      relief or  can  grant  interim  relief  for  a  limited  period  after
      recording reasons for the same.

  18. In view of the facts of the case, in our opinion, the High  Court  was
      not in error while extending the interim relief for  some  time  while
      permitting withdrawal of  the  appeal  as  the  High  Court  has  also
      recorded the reasons for which the interim relief  was  extended  till
      10.5.2010.

  19. In view of the aforestated legal position, in our  opinion,  the  High
      Court did not commit any error  while  extending  the  interim  relief
      especially when the matter was heard on merits by the court  and  only
      to facilitate the appellants therein, the  High  Court  had  permitted
      withdrawal of appeal.
  20. In the circumstances, we dismiss the appeal with no order as to costs.
       Interim relief which had been granted earlier by  this  Court  stands
      vacated.

S.L.P. (C) No. (CC No.20730) of 2009

1.    In view of the fact that FAO (OS) No.349 of 2009  had  been  permitted
to be withdrawn by the subsequent order passed by the High  Court  of  Delhi
at New Delhi on 20th April,  2010,  the  special  leave  petition  does  not
survive as the impugned order  has  already  been  withdrawn.   
The  special
leave petition is dismissed as infructuous.

                                                ………….....................CJI
                                                   (ALTAMAS KABIR)


                                  ........................................J.

 (ANIL R. DAVE)
New Delhi
July 16, 2013
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