Whether an interim order can come to an end automatically only due to the lapse of time;

* Author

[2024] 2 S.C.R. 946 : 2024 INSC 150

High Court Bar Association, Allahabad

v.

State of U.P. & Ors.

Criminal Appeal No. 3589 of 2023

29 February 2024

[Dr Dhananjaya Y. Chandrachud, CJI, Abhay S. Oka,*

J. B. Pardiwala, Manoj Misra and Pankaj Mithal,* JJ.]

Issue for Consideration

What is the object behind passing interim orders; Whether the

High Courts are empowered to vacate or modify interim relief;

Whether an interim order can come to an end automatically only

due to the lapse of time; What is the scope of exercise of powers

u/Art. 142 of the Constitution; Position of the High Courts and its

power of superintendence; Whether the Court should deal with

an issue not arising for consideration; Effect of directions issued

by the Constitutional Courts to decide pending cases in a timebound manner; Whether the Supreme Court, in the exercise of

its jurisdiction u/Art. 142 of the Constitution of India, can order

automatic vacation of all interim orders of the High Courts of

staying proceedings of Civil and Criminal cases on the expiry of

a certain period; Whether the Supreme Court, in the exercise of

its jurisdiction u/Art. 142 of the Constitution of India, can direct the

High Courts to decide pending cases in which interim orders of

stay of proceedings has been granted on a day-to-day basis and

within a fixed period; Procedure to be adopted by High Courts

while passing interim order of stay of proceedings and for dealing

with the applications for vacating interim stay.

Headnotes

Interim Orders – Object of:

Held: (Per Abhay S. Oka, J. for himself and Dr. Dhananjaya

Y. Chandrachud, CJI., J.B. Pardiwala, Manoj Misra, JJ.) An

order of interim relief is usually granted in the aid of the final relief

sought in the case – An occasion for passing an order of stay of

the proceedings normally arises when the High Court is dealing

with a challenge to an interim or interlocutory order passed during

the pendency of the main case before a trial or appellate Court –

The High Court can grant relief of the stay of hearing of the main 

[2024] 2 S.C.R. 947

High Court Bar Association, Allahabad v. State of U.P. & Ors.

proceedings on being satisfied that a prima facie case is made out

and that the failure to stay the proceedings before the concerned

Court in all probability may render the remedy adopted infructuous

– When the High Court passes an interim order of stay, though

the interim order may not expressly say so, the three factors, viz;

prima facie case, irreparable loss, and balance of convenience, are always in the back of the judges’ minds – Though interim orders

of stay of proceedings cannot be routinely passed as a matter of

course, it cannot be said that such orders can be passed only in

exceptional cases – Nevertheless, the High Courts, while passing

orders of stay in serious cases like the offences under the PC Act

or serious offences against women and children, must be more

cautious and circumspect. [Para 13]

Interim Orders – Whether the High Courts are empowered to

vacate or modify interim relief:

Held: (Per Abhay S. Oka, J. for himself and Dr. Dhananjaya

Y. Chandrachud, CJI., J.B. Pardiwala, Manoj Misra, JJ.) The

High Courts are always empowered to vacate or modify an order

of interim relief passed after hearing the parties on the following,

amongst other grounds: - (a)If a litigant, after getting an order

of stay, deliberately prolongs the proceedings either by seeking

adjournments on unwarranted grounds or by remaining absent

when the main case in which interim relief is granted is called out

for hearing before the High Court with the object of taking undue

advantage of the order of stay; (b)The High Court finds that the

order of interim relief is granted as a result of either suppression

or misrepresentation of material facts by the party in whose favour

the interim order of stay has been made; and (c) The High Court

finds that there is a material change in circumstances requiring

interference with the interim order passed earlier – In a given

case, a long passage of time may bring about a material change

in circumstances – These grounds are not exhaustive – There

can be other valid grounds for vacating an order of stay. [Para 15]

Interim Orders – Whether an interim order can come to an

end automatically only due to the lapse of time:

Held: (Per Abhay S. Oka, J. for himself and Dr. Dhananjaya

Y. Chandrachud, CJI., J.B. Pardiwala, Manoj Misra, JJ.)

Elementary principles of natural justice, which are well recognised

in jurisprudence, mandate that an order of vacating interim relief

or modification of the interim relief is passed only after hearing all 

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the affected parties – An order of vacating interim relief passed

without hearing the beneficiary of the order is against the basic

tenets of justice – Application of mind is an essential part of any

decision-making process – Therefore, without application of mind,

an order of interim stay cannot be vacated only on the ground of

lapse of time when the litigant is not responsible for the delay – An

interim order lawfully passed by a Court after hearing all contesting

parties is not rendered illegal only due to the long passage of

time. [Para 16]

Constitution of India – What is the scope of exercise of powers

u/Art. 142 of the Constitution:

Held: (Per Abhay S. Oka, J. for himself and Dr. Dhananjaya Y.

Chandrachud, CJI., J.B. Pardiwala, Manoj Misra, JJ.) Important

parameters for the exercise of the jurisdiction u/Art. 142 of the

Constitution of India which are relevant for deciding the reference

are as follows: (i) The jurisdiction can be exercised to do complete

justice between the parties before the Court – It cannot be exercised

to nullify the benefits derived by a large number of litigants based

on judicial orders validly passed in their favour who are not parties

to the proceedings before this Court; (ii) Article 142 does not

empower this Court to ignore the substantive rights of the litigants;

(iii) While exercising the jurisdiction u/Art. 142 of the Constitution

of India, this Court can always issue procedural directions to the

Courts for streamlining procedural aspects and ironing out the

creases in the procedural laws to ensure expeditious and timely

disposal of cases – However, while doing so, this Court cannot

affect the substantive rights of those litigants who are not parties

to the case before it – The right to be heard before an adverse

order is passed is not a matter of procedure but a substantive right;

and (iv) The power of this Court u/Art. 142 cannot be exercised to

defeat the principles of natural justice, which are an integral part

of jurisprudence. [Para 37]

Constitution of India – Position of the High Courts and its

power of superintendence:

Held: (Per Abhay S. Oka, J. for himself and Dr. Dhananjaya Y.

Chandrachud, CJI., J.B. Pardiwala, Manoj Misra, JJ.) A High

Court is also a constitutional Court – It is well settled that it is

not judicially subordinate to the Supreme Court – A High Court is

constitutionally independent of the Supreme Court of India – The

power of the High Court u/Art. 227 of the Constitution to have 

[2024] 2 S.C.R. 949

High Court Bar Association, Allahabad v. State of U.P. & Ors.

judicial superintendence over all the Courts within its jurisdiction

will include the power to stay the proceedings before such Courts

– By a blanket direction in the exercise of power u/Art. 142 of the

Constitution of India, the Supreme Court cannot interfere with the

jurisdiction conferred on the High Court of granting interim relief

by limiting its jurisdiction to pass interim orders valid only for six

months at a time – Putting such constraints on the power of the

High Court will also amount to making a dent on the jurisdiction of

the High Courts u/Art. 226 of the Constitution, which is an essential

feature that forms part of the basic structure of the Constitution.

[Paras 23 and 24]

Practice and Procedure – Whether the Court should deal with

an issue not arising for consideration:

Held: (Per Abhay S. Oka, J. for himself and Dr. Dhananjaya

Y. Chandrachud, CJI., J.B. Pardiwala, Manoj Misra, JJ.) In the

case of Sanjeev Coke Manufacturing Company, a Constitution

Bench of the Supreme Court held that (Judges) are not authorised

to make disembodied pronouncements on serious and cloudy

issues of constitutional policy without battle lines being properly

drawn – Judicial pronouncements cannot be immaculate legal

conceptions – It is but right that no important point of law should

be decided without a proper lis between parties properly ranged

on either side and a crossing of the swords – It is inexpedient for

the Supreme Court to delve into problems which do not arise and

express opinion thereon. [Para 25]

Constitution of India – Art. 226 (3) – Making of an application

for vacating interim relief:

Held: (Per Abhay S. Oka, J. for himself and Dr. Dhananjaya

Y. Chandrachud, CJI., J.B. Pardiwala, Manoj Misra, JJ.) On its

plain reading, clause (3) is applicable only when an interim relief

is granted without furnishing a copy of the writ petition along with

supporting documents to the opposite party and without hearing

the opposite party – Even assuming that clause (3) is not directory,

it provides for an automatic vacation of interim relief only if the

aggrieved party makes an application for vacating the interim relief

and when the application for vacating stay is not heard within the

time specified – Clause (3) will not apply when an interim order in

a writ petition u/Art. 226 is passed after the service of a copy of

the writ petition on all concerned parties and after giving them an

opportunity of being heard – It applies only to ex-parte ad interim 

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orders. [Para 26] Per Pankaj Mithal, J. (concurring) It is noticeable

that u/Art. 226(3) of the Constitution of India, the automatic vacation

of the stay order envisages making of an application to the High

Court for the vacation of the interim stay order – Therefore, filing

of an application for vacating the stay order is a sine qua non for

triggering the automatic vacation of the stay order u/Art. 226(3) if

such an application is not decided within the time prescribed of

two weeks. [Para 6]

Directions by Supreme Court – Effect of directions issued by

the Constitutional Courts to decide pending cases in a timebound manner – The three Judges Bench of the Supreme

Court issued various directions in Asian Resurfacing – The

net effect of the directions issued in paragraphs 36 and 37 of

Asian Resurfacing is that the petition in which the High Court

has granted a stay of the proceedings of the trial, must be

decided within a maximum period of six months – If it is not

decided within six months, the interim stay will be vacated

automatically, virtually making the pending case infructuous:

Held: (Per Abhay S. Oka, J. for himself and Dr. Dhananjaya

Y. Chandrachud, CJI., J.B. Pardiwala, Manoj Misra, JJ.) The

Constitution Benches of the Supreme Court have considered the

issue of fixing timelines for the disposal of cases in the cases of

Abdul Rehman Antulay and P. Ramachandra Rao – The principles

laid down in the decision will apply even to civil cases before the

trial courts – The same principles will also apply to a direction

issued to the High Courts to decide cases on a day-to-day basis

or within a specific time – Thus, the directions of the Court that

provide for automatic vacation of the order of stay and the disposal

of all cases in which a stay has been granted on a day-to-day

basis virtually amount to judicial legislation – The jurisdiction of

this Court cannot be exercised to make such a judicial legislation

– Only the legislature can provide that cases of a particular

category should be decided within a specific time – There are

many statutes which incorporate such provisions – However,

all such provisions are usually held to be directory – A judicial

notice will have to be taken of the fact that in all the High Courts

of larger strength having jurisdiction over larger States, the daily

cause lists of individual Benches of the cases of the aforesaid

categories are of more than a hundred matters – Therefore, once

a case is entertained by the High Court and the stay is granted,

the case has a long life – The High Courts cannot be expected to 

[2024] 2 S.C.R. 951

High Court Bar Association, Allahabad v. State of U.P. & Ors.

decide, on a priority basis or a day-to-day basis, only those cases

in which a stay of proceedings has been granted while ignoring

several other categories of cases that may require more priority

to be given – Therefore, constitutional Courts should not normally

fix a time-bound schedule for disposal of cases pending in any

Court – The pattern of pendency of various categories of cases

pending in every Court, including High Courts, is different – The

situation at the grassroots level is better known to the judges

of the concerned Courts – Therefore, the issue of giving out-of

turn priority to certain cases should be best left to the concerned

Courts – The orders fixing the outer limit for the disposal of cases

should be passed only in exceptional circumstances to meet

extraordinary situations. [Paras 28, 29, 30, 32, 33]

Constitution of India – Interim Orders – (i) Whether the

Supreme Court, in the exercise of its jurisdiction u/Art. 142 of

the Constitution of India, can order automatic vacation of all

interim orders of the High Courts of staying proceedings of

Civil and Criminal cases on the expiry of a certain period; (ii)

Whether the Supreme Court, in the exercise of its jurisdiction

u/Art. 142 of the Constitution of India, can direct the High

Courts to decide pending cases in which interim orders of

stay of proceedings has been granted on a day-to-day basis

and within a fixed period:

Held: (Per Abhay S. Oka, J. for himself and Dr. Dhananjaya Y.

Chandrachud, CJI., J.B. Pardiwala, Manoj Misra, JJ.) The three

Judges Bench of the Supreme Court decided the case of Asian

Resurfacing and issued directions in paragraphs 36 and 37 – The

direction issued in paragraph 36 was regarding automatic vacation

of stay and direction in paragragh 37 was for conducting day-to-day

hearing within a time frame – The present Bench of the Judges

does not concur with the three judges Bench which decided the

case of Asian Resurfacing and issued directions in paragraphs 36

and 37 – Both directions were issued in the exercise of jurisdiction

u/Art.142 of the Constitution – There cannot be automatic vacation

of stay granted by the High Court – The direction issued (in the

case of Asian Resurfacing) to decide all the cases in which an

interim stay has been granted on a day-to-day basis within a time

frame is also not approved – Blanket directions cannot be issued

in the exercise of the jurisdiction u/Art. 142 of the Constitution

of India – Both the questions framed above are answered in the

negative. [Paras 12, 36]

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Interim Orders – Stay order cannot be automatically vacated:

Held: Per Pankaj Mithal, J. (concurring): The stay order granted

in any proceedings would not automatically stand vacated on the

expiry of a particular period until and unless an application to that

effect has been filed by the other side and is decided following the

principles of natural justice by a speaking order – It is expedient

in the interest of justice to provide that a reasoned stay order

once granted in any civil or criminal proceedings, if not specified

to be time bound, would remain in operation till the decision of

the main matter or until and unless an application is moved for its

vacation and a speaking order is passed adhering to the principles

of natural justice either extending, modifying, varying or vacating

the same. [Paras 7 and 8]

Practice and Procedure – Procedure to be adopted by High

Courts while passing interim order of stay of proceedings

and for dealing with the applications for vacating interim stay:

Held: (Per Abhay S. Oka, J. for himself and Dr. Dhananjaya Y.

Chandrachud, CJI., J.B. Pardiwala, Manoj Misra, JJ.) To avoid

any prejudice to the opposite parties, while granting ex-parte adinterim relief without hearing the affected parties, the High Courts

should normally grant ad-interim relief for a limited duration – After

hearing the contesting parties, the Court may or may not confirm

the earlier ad-interim order – Ad-interim relief, once granted, can be

vacated or affirmed only after application of mind by the concerned

Court – Hence, the Courts must give necessary priority to the

hearing of the prayer for interim relief where adinterim relief has

been granted – Though the High Court is not expected to record

detailed reasons while dealing with the prayer for the grant of stay

or interim relief, the order must give sufficient indication of the

application of mind to the relevant factors – An interim order passed

after hearing the contesting parties cannot be vacated by the High

Court without giving sufficient opportunity of being heard to the party

whose prayer for interim relief has been granted – Even if interim

relief is granted after hearing both sides, as observed earlier, the

aggrieved party is not precluded from applying for vacating the

same on the available grounds – In such a case, the High Court

must give necessary priority to the hearing of applications for

vacating the stay, if the main case cannot be immediately taken

up for hearing – Applications for vacating interim reliefs cannot

be kept pending for an inordinately long time. [Paras 34 and 35]

[2024] 2 S.C.R. 953

High Court Bar Association, Allahabad v. State of U.P. & Ors.

Case Law Cited

Asian Resurfacing of Road Agency Private Limited &

Anr. v. Central Bureau of Investigation, [2018] 2 SCR

1045 : (2018) 16 SCC 299 – Reconsidered.

Prem Chand Garg & Anr. v. The Excise Commissioner,

U.P. and Ors., [1963] Suppl. 1 SCR 885 : (1962)

SCC Online SC 37; Supreme Court Bar Association

v. Union of India & Anr., [1998] 2 SCR 795 : (1998) 4

SCC 409; L. Chandra Kumar v. Union of India & Ors.,

[1997] 2 SCR 1186 : (1997) 3 SCC 261; Sanjeev Coke

Manufacturing Company v. M/s. Bharat Coking Coal Ltd.

& Anr, [1983] 1 SCR 1000 : (1983) 1 SCC 147; Abdul

Rehman Antulay & Ors. v. R.S. Nayak & Anr, [1991]

Suppl. 3 SCR 325 : (1992) 1 SCC 225; P. Ramachandra

Rao v. State of Karnataka, [2002] 3 SCR 60 : (2002) 4

SCC 578 – followed.

Deputy Commissioner of Income Tax & Anr. v. Pepsi

Foods Limited, [2021] 4 SCR 1 : (2021) 7 SCC 413;

Tirupati Balaji Developers (P) Ltd. & Ors. v. State of

Bihar & Ors., [2004] Suppl. 1 SCR 494 : (2004) 5 SCC

1 – relied on.

Mohan Lal Magan Lal Thacker v. State of Gujarat,

[1968] 2 SCR 685 : AIR 1968 SC 733; Raza Buland

Sugar Co. Ltd. v. Municipal Board, Rampur, [1965] 1

SCR 970 : AIR 1965 SC 895; Kailash v. Nanhku & Ors,

[2005] 3 SCR 289 : (2005) 4 SCC 480; Deoraj v. State

of Maharashtra & Ors., [2004] 3 SCR 920 : (2004) 4

SCC 697; All India Judges’ Association & Ors. v. Union

of India & Ors., [2002] 2 SCR 712 : (2002) 4 SCC 247;

Imtiyaz Ahmed v. State of Uttar Pradesh & Ors., [2017]

1 SCR 305 : (2017) 3 SCC 658 – referred to.

List of Acts

Constitution of India; Constitution (Forty-fourth Amendment) Act,

1978; Prevention of Corruption Act, 1988; Income Tax Act, 1961.

List of Keywords

Interim orders; Vacation or modification of interim relief;

Automatic end of interim relief; Lapse of time; Enforcement

of decrees and orders of Supreme Court and orders as to 

954 [2024] 2 S.C.R.

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discovery, etc; Interim orders of the High Courts; Interim orders

of stay of proceedings; Day-to-day basis hearing; Position of

the High Courts; High Court’s power of superintendence; Issue

not arising for consideration; Deciding pending cases in a timebound manner; Effect of directions issued by the Constitutional

Courts; Procedure to be adopted by High Courts while passing

interim order; Applications for vacating interim stay.

Case Arising From

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No.3589

of 2023

With

Special Leave Petition (Crl.) Nos. 13284-13289 of 2023 and Criminal

Appeal... Diary No. 49052 of 2023

From the Judgment and Order dated 03.11.2023 of the High Court of

Judicature at Allahabad in A482 No. 28574 of 2019

Appearances for Parties

Rakesh Dwivedi, VK Shukla, Kavin Gulati, S.G. Hasnain, Ravindra

Singh, Dinesh Goswami, Sr. Advs., Shantanu Krishna, Nitin Sharma,

Nikhil Sharma, Eklavya Dwivedi, Shantanu Sagar, Anukul Raj, Ankit

Mishra, Harmeet Singh Ruprah, Abhinav Shrivastava, Manu Yadav,

Himanshu Tyagi, Kumar Ayush, Ronak Chaturavedi, Ram Kaushik,

Syed Mohd Fazal, Archit Mandhyan, Raman Yadav, Prabhat Ranjan Raj,

Sidharth Sarthi, Anil Kumar, Gunjesh Ranjan, Animesh Tripathi, Anant

Prakash, Mrs. Kanupriya Mishra, Amit Kumar Singh, Salil Srivastava,

Shaurya Vardhan Singh, Ankit Dwivedi, Mrs. Mukti Chowdhary,

Gyanendra Kumar, Mrs. Vijaya Singh, Shashwat Anand, Apoorv Mishra,

Shashank Shukla, Ashutosh Thakur, Vaibhav Jain, Rituvendra Singh,

Aniruddh Kumar, Rajrshi Gupta, Imran Ullah, Tarun Agarwal, Ankit

Saran, Namit Srivastava, Rakesh Dubey, Swetashwa Agarwal, Javed

H Khan, Praval Tripathi, Shariq Ahmed, Satwik Misra, Ishit Saharia,

Ashish Singh, Amit Singh, Sanjay Kumar Singh, Piyush Kumar, Paritosh

Kumar Singh, Pai Amit, N. Ashwani Kumar, Ms. Pankhuri Bhardwaj, Ms.

Bhavana Duhoon, Ms. Ranu Purohit, Abhiyudaya Vats, Ms. Vanshika

Dubey, Kushal Dube, Tathagata Dutta, P. Ashok, Advs. for the Appellant.

Tushar Mehta, SG, Ajay Kumar Misra, Adv. Gen/Sr. Adv., Vijay

Hansaria, Sr. Adv., Tanmaya Agarwal, Wrick Chatterjee, Mrs. Aditi 

[2024] 2 S.C.R. 955

High Court Bar Association, Allahabad v. State of U.P. & Ors.

Agarwal, Vinayak Mohan, Mahfooz Ahsan Nazki, Polanki Gowtham,

Ms. Rajeswari Mukherjee, K.V. Girish Chowdary, T. Vijaya Bhaskar

Reddy, Ms. Archita Nigam, Meeran Maqbool, Ms. Ruchi Guasain,

Fuzail Ahmad Ayyubi, Ibad Mushtaq, Ms. Akanksha Rai, Ms. Anasuya

Choudhury, Ms. Kavya Jhawar, Gaurav Mehrotra, Talha Abdul

Rahman, Nadeem Murtaza, Akber Ahmed, Abhinit Jaiswal, Harsh

Vardhan Mehrotra, Ms. Maria Fatima, Ms. Alina Masoodi, M. Shaz

Khan, Adnan Yousuf Bhat, Ms. Anasuya Chaudhoury, Advs. for the

Respondents.

Judgment / Order of the Supreme Court

Judgment

Abhay S. Oka, J.

Table of Contents*

A. FACTUAL BACKGROUND .............................................. 2

I. Directions in Asian Resurfacing ................................ 2

II. Order of reference to Larger Bench .......................... 7

B. SUBMISSIONS ...................................................................... 8

C. ANALYSIS ............................................................................14

I. Object of passing interim orders ............................. 14

II. High Court’s power to vacate or modify interim

relief..............................................................................16

III. Whether an interim order can come to an end

automatically only due to the lapse of time ........... 17

IV. Scope of exercise of powers under Article 142 of the

Constitution ................................................................ 21

V. Position of High Courts and its power of

superintendence ......................................................29

VI. Whether the Court should deal with an issue not arising

for consideration ....................................................... 32

VII. Clause (3) of Article 226 of the Constitution .......... 33

VIII. Directions issued by the constitutional Courts to

decide pending cases in a time-bound manner .....34

* Ed Note : Pagination as per original judgment.

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IX. Procedure to be adopted by High Courts while passing

interim order of stay of proceedings and for dealing

with the applications for vacating interim stay ......43

D. CONCLUSIONS ...................................................................44

A. FACTUAL BACKGROUND

By the order dated 1st December 2023, a Bench of three Hon’ble

Judges of this Court expressed a view that a decision of this Court

in the case of Asian Resurfacing of Road Agency Private Limited

& Anr. v. Central Bureau of Investigation1

 requires reconsideration

by a larger Bench.

I. Directions in Asian Resurfacing

1. In Asian Resurfacing1

, this Court dealt with the scope of interference

by the High Court with an order of framing charge passed by the

Special Judge under the provisions of the Prevention of Corruption

Act, 1988 (for short, ‘the PC Act’). The issue was whether an order

of framing charge was an interlocutory order. The High Court held

that an order of framing charge under the PC Act was interlocutory.

A Bench of two Hon’ble Judges of this Court, by the order dated 9th

September 2013, referred the case to a larger Bench to consider the

issue of whether the case of Mohan Lal Magan Lal Thacker v. State

of Gujarat2 was correctly decided. A Bench of three Hon’ble Judges

held that the order of framing charge was neither an interlocutory nor

a final order. Therefore, it was held that the High Court has jurisdiction

in appropriate cases to consider a challenge to an order of framing

charge. Furthermore, the High Court has jurisdiction to grant a stay

of the trial proceedings. Thereafter, it proceeded to consider in which

cases a stay of the proceedings ought to be granted. The Bench

considered the question in the context of a criminal trial, particularly

under the PC Act. In paragraphs 30 and 31, the Bench observed thus:

“30. It is well accepted that delay in a criminal trial,

particularly in the PC Act cases, has deleterious effect

on the administration of justice in which the society has a

1 [2018] 2 SCR 1045 : (2018) 16 SCC 299

2 [1968] 2 SCR 685 : AIR 1968 SC 733

[2024] 2 S.C.R. 957

High Court Bar Association, Allahabad v. State of U.P. & Ors.

vital interest. Delay in trials affects the faith in Rule of Law

and efficacy of the legal system. It affects social welfare

and development. Even in civil or tax cases it has been

laid down that power to grant stay has to be exercised

with restraint. Mere prima facie case is not enough. Party

seeking stay must be put to terms and stay should not be

an incentive to delay. The order granting stay must show

application of mind. The power to grant stay is coupled

with accountability. [Siliguri Municipality v. Amalendu Das,

(1984) 2 SCC 436, para 4 : 1984 SCC (Tax) 133; CCE

v. Dunlop India Ltd., (1985) 1 SCC 260, para 5 : 1985

SCC (Tax) 75; State (UT of Pondicherry) v. P.V. Suresh,

(1994) 2 SCC 70, para 15 and State of W.B. v. Calcutta

Hardware Stores, (1986) 2 SCC 203, para 5]

31. Wherever stay is granted, a speaking order must

be passed showing that the case was of exceptional

nature and delay on account of stay will not prejudice

the interest of speedy trial in a corruption case. Once

stay is granted, proceedings should not be adjourned,

and concluded within two-three months.”

(Emphasis added)

2. We have been called upon to decide the correctness of the view

taken in paragraphs 36 and 37 of the said decision, which read thus:

“36. In view of the above, situation of proceedings

remaining pending for long on account of stay needs to

be remedied. Remedy is required not only for corruption

cases but for all civil and criminal cases where on

account of stay, civil and criminal proceedings are held

up. At times, proceedings are adjourned sine die on

account of stay. Even after stay is vacated, intimation

is not received and proceedings are not taken up. In

an attempt to remedy this situation, we consider it

appropriate to direct that in all pending cases where

stay against proceedings of a civil or criminal trial

is operating, the same will come to an end on expiry

of six months from today unless in an exceptional

case by a speaking order such stay is extended.

In cases where stay is granted in future, the same 

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will end on expiry of six months from the date of

such order unless similar extension is granted by

a speaking order. The speaking order must show

that the case was of such exceptional nature that

continuing the stay was more important than having

the trial finalised. The trial court where order of stay

of civil or criminal proceedings is produced, may fix a

date not beyond six months of the order of stay so that

on expiry of period of stay, proceedings can commence

unless order of extension of stay is produced.

37. Thus, we declare the law to be that order framing

charge is not purely an interlocutory order nor a final order.

Jurisdiction of the High Court is not barred irrespective of

the label of a petition, be it under Sections 397 or 482

CrPC or Article 227 of the Constitution. However, the said

jurisdiction is to be exercised consistent with the legislative

policy to ensure expeditious disposal of a trial without the

same being in any manner hampered. Thus considered,

the challenge to an order of charge should be entertained

in a rarest of rare case only to correct a patent error of

jurisdiction and not to reappreciate the matter. Even where

such challenge is entertained and stay is granted,

the matter must be decided on day-to-day basis so

that stay does not operate for an unduly long period.

Though no mandatory time-limit may be fixed, the

decision may not exceed two-three months normally.

If it remains pending longer, duration of stay should

not exceed six months, unless extension is granted

by a specific speaking order, as already indicated.

Mandate of speedy justice applies to the PC Act cases as

well as other cases where at trial stage proceedings are

stayed by the higher court i.e. the High Court or a court

below the High Court, as the case may be. In all pending

matters before the High Courts or other courts relating to

the PC Act or all other civil or criminal cases, where stay

of proceedings in a pending trial is operating, stay will

automatically lapse after six months from today unless

extended by a speaking order on the above parameters.

Same course may also be adopted by civil and criminal 

[2024] 2 S.C.R. 959

High Court Bar Association, Allahabad v. State of U.P. & Ors.

appellate/Revisional Courts under the jurisdiction of the

High Courts. The trial courts may, on expiry of the above

period, resume the proceedings without waiting for any

other intimation unless express order extending stay is

produced.”

(Emphasis added)

3. A Miscellaneous Application was filed in the decided case, in light of

the order passed on 4th December 2019 by the Learned Additional

Chief Judicial Magistrate, Pune. When the learned Magistrate was

called upon to proceed with the trial on the ground of automatic

vacation of stay after the expiry of a period of six months, the

learned Magistrate expressed a view that when the jurisdictional

High Court had passed an order of stay, a Court subordinate to the

High Court cannot pass any order contrary to the order of stay. By

the order dated 15th October 2020, this Court held that when the

stay granted by the High Court automatically expires, unless an

extension is granted for good reasons, the Trial Court, on expiry of

a period of six months, must set a date for trial and go ahead with

the same. Later, an attempt was made to seek clarification of the

law laid down in the case of Asian Resurfacing1

. This Court, by

the order dated 25th April 2022, did not apply the direction issued

in Asian Resurfacing1 to the facts of the case before it. An attempt

was made to apply the directions to an order of stay of the order

of the learned Single Judge of the High Court passed by a Division

Bench in a Letters Patent Appeal.

II. Order of reference to Larger Bench

4. In the order of reference dated 1st December 2023, in paragraph 10,

this Court observed thus:

“10. We have reservations in regard to the correctness

of the broad formulations of principle in the above terms.

There can be no gainsaying the fact that a stay of an

indefinite nature results in prolonging civil or criminal

proceedings, as the case may be, unduly. At the same

time, it needs to be factored in that the delay is not always

on account of conduct of the parties involved. The delay

may also be occasioned by the inability of the Court to

take up proceedings expeditiously. The principle which 

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has been laid down in the above decision to the effect

that the stay shall automatically stand vacated (which

would mean an automatic vacation of stay without

application of judicial mind to whether the stay should

or should not be extended further) is liable to result

in a serious miscarriage of justice.”

(Emphasis added)

5. We are called upon to decide the following questions: -

(a) Whether this Court, in the exercise of its jurisdiction under Article

142 of the Constitution of India, can order automatic vacation

of all interim orders of the High Courts of staying proceedings

of Civil and Criminal cases on the expiry of a certain period?

(b) Whether this Court, in the exercise of its jurisdiction under

Article 142 of the Constitution of India, can direct the High

Courts to decide pending cases in which interim orders of stay

of proceedings has been granted on a day-to-day basis and

within a fixed period?

B. SUBMISSIONS

6. The main submissions were canvassed by Shri Rakesh Dwivedi, the

learned senior counsel appearing on behalf of the appellant in Criminal

Appeal no.3589 of 2023. We are summarising the submissions of

Shri Rakesh Dwivedi as follows:

a. Automatic Vacation of the interim order is in the nature of judicial

legislation. This Court cannot engage in judicial legislation;

b. Article 226 is a part of the basic structure of the Constitution of

India, and it can neither be shut out nor whittled down by the

exercise of powers under Articles 141 and 142;

c. The High Court is also a constitutional Court which is not

judicially subordinate to this Court;

d. An order granting interim relief cannot be passed without an

application of judicial mind. Application of mind is a pre-requisite

of judicial decision making. The absence of application of mind

would render a decision arbitrary. Similarly, an order vacating

interim relief cannot be passed without the application of judicial

mind;

[2024] 2 S.C.R. 961

High Court Bar Association, Allahabad v. State of U.P. & Ors.

e. If an interim order is to be passed, it should be initially for a

short period so that there is an effective opportunity for the

respondent to contest the same;

f. Two Constitution Benches in the cases of Abdul Rehman

Antulay & Ors. v. R.S. Nayak & Anr.3 and P. Ramachandra

Rao v. State of Karnataka4 held that it is not permissible for

this Court to fix the time limit for completion of a trial;

g. No such directions could have been issued in the exercise of

the jurisdiction of this Court under Article 142 of the Constitution

of India;

h. Even under Article 226 (3) of the Constitution, an interim order

cannot be automatically vacated unless a specific application

is made for vacating the interim order;

i. A provision of automatic vacation of the Appellate Tribunal’s stay

order was incorporated in Section 254 (2A) of the Income Tax

Act, 1961 (for short, ‘the IT Act’). It provided that if an appeal

preferred before the Appellate Tribunal was not disposed of

within 365 days, the stay shall stand vacated even if the delay

in disposing of the appeal is not attributable to the assessee.

This court struck down the provision in the case of Deputy

Commissioner of Income Tax & Anr. v. Pepsi Foods Limited5

on the ground that it was manifestly arbitrary; and

j. The automatic vacation of interim relief is unjust, unfair and

unreasonable.

7. Shri Tushar Mehta, the learned Solicitor General appearing for the

State of Uttar Pradesh, supported the submissions of Shri Dwivedi.

In addition, he submitted that:

a. As held by the Constitution Bench in the case of Raza Buland

Sugar Co. Ltd. v. Municipal Board, Rampur6

, laws of procedure

are grounded in principles of natural justice, which require that

no decision can be reached behind the back of a person and

in his absence;

3 [1991] Suppl. 3 SCR 325 : (1992) 1 SCC 225

4 [2002] 3 SCR 60 : (2002) 4 SCC 578

5 [2021] 4 SCR 1 : (2021) 7 SCC 413

6 [1965] 1 SCR 970 : AIR 1965 SC 895

962 [2024] 2 S.C.R.

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b. If the condition imposed by a provision of law to do a certain

thing within a time frame is upon the institution and the

consequences of that institution failing to comply with the

condition are to fall upon someone who has no control over

the institution, the provision of law will have to be construed

as directory;

c. An interim relief order is always granted after considering the

three factors: prima facie case, the balance of convenience

and irreparable injury to the aggrieved party. Once a finding

is recorded regarding the entitlement of the appellant/

applicant to get the order of stay, the order does not become

automatically bad on the ground that it has lived for six

months; and

d. In the decision of this Court in Kailash v. Nanhku & Ors7

, it

has been held that the process of justice may be speeded up

and hurried, but fairness, which is the basic element of justice,

cannot be permitted to be buried. The discretion conferred upon

the High Court cannot be taken away by exercising power under

Article 142 of the Constitution of India.

8. Shri Gaurav Mehrotra, the learned counsel appearing for the applicant

in I.A. no.252872 of 2023 in Criminal Appeal no.3589 of 2023, in

addition to the aforesaid submissions, relied upon a decision of the

Constitution Bench in the case of Sanjeev Coke Manufacturing

Company v. M/s. Bharat Coking Coal Ltd. & Anr8

, to contend that

the Court should not decide any important question without there

being a proper lis.

9. Shri Vijay Hansaria, the learned senior counsel appearing for the

Gauhati High Court Bar Association, made the following submissions:

a. As regards the interpretation of clause (3) of Article 226 of the

Constitution of India, various High Courts have taken different

views on the issue of whether the provision for automatic

vacation of stay is mandatory or directory. He urged that the

provision will have to be held as a directory;

7 [2005] 3 SCR 289 : (2005) 4 SCC 480

8 [1983] 1 SCR 1000 : (1983) 1 SCC 147

[2024] 2 S.C.R. 963

High Court Bar Association, Allahabad v. State of U.P. & Ors.

b. In Asian Resurfacing1

, the Court was dealing with a petition

filed in the High Court arising from a prosecution under the PC

Act. The cases of other categories were not the subject matter

of challenge before this Court;

c. The power under Article 142 of the Constitution of India can

be exercised for doing complete justice in any case or matter

pending before it. The issue of the duration of the order of stay

did not arise in the case of Asian Resurfacing1

; and

d. A successful litigant whose application for stay is allowed by

the High Court cannot be prejudiced only on the ground that

the High Court does not hear the main case within six months

for reasons beyond the control of the said litigant.

10. Shri Amit Pai, the learned counsel appearing for the appellant in one

of the appeals, while adopting the submissions, relied upon a decision

of this Court in the case of Deoraj v. State of Maharashtra & Ors.9

and contended that recourse is taken to the order of grant of interim

relief as the conclusion of hearing on merits is likely to take some

time. He submitted that the said object has not been considered in

Asian Resurfacing1

. He urged that passing an interim order of stay

is a judicial act. Therefore, such an order must be vacated only by

a judicial act.

11. Prof (Dr) Pankaj K Phadnis, representing the intervenor – Abhinav

Bharat Congress, has filed written submissions. He has contended that

he was not permitted to join the hearing through video conferencing.

He has come out with the draft of Supreme Court Rules, 2024. His

submissions, based on the draft, are entirely irrelevant.

C. ANALYSIS

12. We have no manner of doubt that the direction issued in paragraph

36 of Asian Resurfacing1 regarding automatic vacation of stay

has been issued in the exercise of the jurisdiction of this Court

under Article 142 of the Constitution of India. Even the direction in

paragraph 37 of conducting day-to-day hearing has been issued

in exercise of the same jurisdiction. The effect of the direction

issued in paragraph 36 is that the interim order of stay granted

9 [2004] 3 SCR 920 : (2004) 4 SCC 697

964 [2024] 2 S.C.R.

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in favour of a litigant stands vacated without even giving him an

opportunity of being heard, though there may not be any default

on his part.

I. Object of passing interim orders

13. Before we examine the questions, we need to advert to the object

of passing orders of interim relief pending the final disposal of the

main case. The reason is that the object of passing interim order

has not been considered while deciding Asian Resurfacing1

. An

order of interim relief is usually granted in the aid of the final relief

sought in the case. An occasion for passing an order of stay of

the proceedings normally arises when the High Court is dealing

with a challenge to an interim or interlocutory order passed during

the pendency of the main case before a trial or appellate Court.

The High Court can grant relief of the stay of hearing of the main

proceedings on being satisfied that a prima facie case is made out

and that the failure to stay the proceedings before the concerned

Court in all probability may render the remedy adopted infructuous.

When the High Court passes an interim order of stay, though the

interim order may not expressly say so, the three factors, viz; prima

facie case, irreparable loss, and balance of convenience, are always

in the back of the judges’ minds. Though interim orders of stay of

proceedings cannot be routinely passed as a matter of course, it

cannot be said that such orders can be passed only in exceptional

cases. Nevertheless, the High Courts, while passing orders of stay in

serious cases like the offences under the PC Act or serious offences

against women and children, must be more cautious and circumspect.

An occasion for passing an order of stay of proceeding arises as it is

not possible for the High Court to take up the case for final hearing

immediately. While entertaining a challenge to an order passed in

a pending case, if the pending case is not stayed, the trial or the

appellate Court may decide the pending case, rendering the remedy

before the High Court ineffective. Such a situation often leads to the

passing of an order of remand. In our legal system, which is facing

a docket explosion, an order of remand should be made only as a

last resort. The orders of remand not only result in more delays but

also increase the cost of litigation. Therefore, to avoid the possibility

of passing an order of remand, the grant of stay of proceedings is

called for in many cases.

[2024] 2 S.C.R. 965

High Court Bar Association, Allahabad v. State of U.P. & Ors.

II. High Court’s power to vacate or modify interim relief

14. When a High Court grants a stay of the proceedings while issuing

notice without giving an opportunity of being heard to the contesting

parties, it is not an interim order, but it is an ad-interim order of

stay. It can be converted into an interim order of stay only after an

opportunity of being heard is granted on the prayer for interim relief

to all the parties to the proceedings. Ad-interim orders, by their very

nature, should be of a limited duration. Therefore, such orders do

not pose any problem.

15. The High Courts are always empowered to vacate or modify an order

of interim relief passed after hearing the parties on the following,

amongst other grounds: -

(a) If a litigant, after getting an order of stay, deliberately prolongs

the proceedings either by seeking adjournments on unwarranted

grounds or by remaining absent when the main case in which

interim relief is granted is called out for hearing before the

High Court with the object of taking undue advantage of the

order of stay;

(b) The High Court finds that the order of interim relief is granted as

a result of either suppression or misrepresentation of material

facts by the party in whose favour the interim order of stay has

been made; and

(c) The High Court finds that there is a material change in

circumstances requiring interference with the interim order

passed earlier. In a given case, a long passage of time may

bring about a material change in circumstances.

These grounds are not exhaustive. There can be other valid grounds

for vacating an order of stay.

III. Whether an Interim Order can come to an end automatically

only due to the lapse of time

16. Interim order of stay can come to an end: -

(a) By disposal of the main case by the High Court, in which the

interim order has been passed. The disposal can be either on

merits or for default or other reasons such as the abatement

of the case; or

966 [2024] 2 S.C.R.

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(b) by a judicial order vacating interim relief, passed after hearing

the contesting parties on the available grounds, some of which

we have already referred to by way of illustration.

Elementary principles of natural justice, which are well recognised in

our jurisprudence, mandate that an order of vacating interim relief or

modification of the interim relief is passed only after hearing all the

affected parties. An order of vacating interim relief passed without

hearing the beneficiary of the order is against the basic tenets of

justice. Application of mind is an essential part of any decision-making

process. Therefore, without application of mind, an order of interim

stay cannot be vacated only on the ground of lapse of time when

the litigant is not responsible for the delay. An interim order lawfully

passed by a Court after hearing all contesting parties is not rendered

illegal only due to the long passage of time. Moreover, the directions

issued in Asian Resurfacing1 regarding automatic vacation of interim

orders of stay passed by all High Courts are applicable, irrespective

of the merits of individual cases. If a High Court concludes after

hearing all the concerned parties that a case was made out for the

grant of stay of proceedings of a civil or criminal case, the order of

stay cannot stand automatically set aside on expiry of the period of

six months only on the ground that the High Court could not hear

the main case. If such an approach is adopted, it will be completely

contrary to the concept of fairness. If an interim order is automatically

vacated without any fault on the part of the litigant only because

the High Court cannot hear the main case, the maxim “actus curiae

neminem gravabit” will apply. No litigant should be allowed to suffer

due to the fault of the Court. If that happens, it is the bounden duty

of the Court to rectify its mistake.

17. In the subsequent clarification in the case of Asian Resurfacing1

,

a direction has been issued to the Trial Courts to immediately fix a

date for hearing after the expiry of the period of six months without

waiting for any formal order of vacating stay passed by the High

Court. This gives an unfair advantage to the respondent in the case

before the High Court. Moreover, it adversely affects a litigant’s

right to the remedies under Articles 226 and 227 of the Constitution

of India. Such orders virtually defeat the right of a litigant to seek

and avail of statutory remedies such as revisions, appeals, and

applications under Section 482 of the Code of Criminal Procedure, 

[2024] 2 S.C.R. 967

High Court Bar Association, Allahabad v. State of U.P. & Ors.

1973 (for short, ‘Cr. PC’) as well as the remedies under the Code

of Civil Procedure, 1908 (for short, ‘CPC’). All interim orders of stay

passed by all High Courts cannot be set at naught by a stroke of

pen only on the ground of lapse of time.

18. The legislature attempted to provide for an automatic vacation of

stay granted by the Income Tax Appellate Tribunal by introducing the

third proviso to Section 254 (2A) of the IT Act. It provided that if an

appeal in which the stay was granted was not heard within a period

of 365 days, it would amount to the automatic vacation of stay. In

the case of Pepsi Foods Limited5

, this Court held that a provision

automatically vacating a stay was manifestly arbitrary and, therefore,

violative of Article 14 of the Constitution of India. Paragraphs 20 and

22 of the said decision read thus:

“20. Judged by both these parameters, there can be

no doubt that the third proviso to Section 254(2-A) of

the Income Tax Act, introduced by the Finance Act,

2008, would be both arbitrary and discriminatory and,

therefore, liable to be struck down as offending Article

14 of the Constitution of India. First and foremost, as

has correctly been held in the impugned judgment,

unequals are treated equally in that no differentiation

is made by the third proviso between the assessees

who are responsible for delaying the proceedings and

assessees who are not so responsible. This is a little

peculiar in that the legislature itself has made the aforesaid

differentiation in the second proviso to Section 254(2-A) of

the Income Tax Act, making it clear that a stay order may

be extended up to a period of 365 days upon satisfaction

that the delay in disposing of the appeal is not attributable

to the assessee. We have already seen as to how, as

correctly held by Narang Overseas [Narang Overseas (P)

Ltd. v. Income Tax Appellate Tribunal, 2007 SCC OnLine

Bom 671 : (2007) 295 ITR 22] , the second proviso was

introduced by the Finance Act, 2007 to mitigate the rigour

of the first proviso to Section 254(2-A) of the Income Tax

Act in its previous avatar. Ordinarily, the Appellate Tribunal,

where possible, is to hear and decide appeals within a

period of four years from the end of the financial year in

which such appeal is filed. It is only when a stay of the 

968 [2024] 2 S.C.R.

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impugned order before the Appellate Tribunal is granted,

that the appeal is required to be disposed of within 365

days. So far as the disposal of an appeal by the Appellate

Tribunal is concerned, this is a directory provision. However,

so far as vacation of stay on expiry of the said period is

concerned, this condition becomes mandatory so far as

the assessee is concerned.”

21. .. .. .. .. .. .. .. .. .. ..

22. Since the object of the third proviso to Section

254(2-A) of the Income Tax Act is the automatic vacation

of a stay that has been granted on the completion of

365 days, whether or not the assessee is responsible

for the delay caused in hearing the appeal, such object

being itself discriminatory, in the sense pointed out

above, is liable to be struck down as violating Article

14 of the Constitution of India. Also, the said proviso

would result in the automatic vacation of a stay upon

the expiry of 365 days even if the Appellate Tribunal

could not take up the appeal in time for no fault of

the assessee. Further, the vacation of stay in favour

of the Revenue would ensue even if the Revenue is

itself responsible for the delay in hearing the appeal. In

this sense, the said proviso is also manifestly arbitrary

being a provision which is capricious, irrational and

disproportionate so far as the assessee is concerned.”

(Emphasis added)

Therefore, even if the legislature were to come out with such a

provision for automatic vacation of stay, the same may not stand

judicial scrutiny as it may suffer from manifest arbitrariness.

IV. Scope of exercise of powers under Article 142 of the

Constitution

19. The directions issued in Asian Resurfacing1

 are obviously issued

in the exercise of jurisdiction of this Court under Article 142 of the

Constitution, which confers jurisdiction on this Court to pass such

a decree or make such order necessary for doing complete justice

in any case or matter pending before it. In Asian Resurfacing1

,

the first issue was, whether an order framing of charge in a case 

[2024] 2 S.C.R. 969

High Court Bar Association, Allahabad v. State of U.P. & Ors.

under the PC Act was in the nature of an interlocutory order. The

second question was of the scope of powers of the High Court to

stay proceedings of the trial under the PC Act while entertaining a

challenge to an order of framing charge. The question regarding the

duration of the interim orders passed by the High Courts in various

other proceedings did not specifically arise for consideration in the

case of Asian Resurfacing1

. The provisions of Article 142 of the

Constitution of India are meant to further the cause of justice and

to secure complete justice. The directions in the exercise of power

under Article 142 cannot be issued to defeat justice. The jurisdiction

under Article 142 cannot be invoked to pass blanket orders setting at

naught a very large number of interim orders lawfully passed by all

the High Courts, and that too, without hearing the contesting parties.

The jurisdiction under Article 142 can be invoked only to deal with

extraordinary situations for doing complete justice between the parties

before the Court.

20. While dealing with the scope of power under Article 142, a Constitution

Bench of this Court in the case of Prem Chand Garg & Anr. v. The

Excise Commissioner, U.P. and Ors.10, in paragraphs 12 and 13

held thus:

“12. Basing himself on this decision, the Solicitor-General

argues that the power conferred on this Court under

Article 142(1) is comparable to the privileges claimed by

the members of the State Legislatures under the latter

part of Article 194(3), and so, there can be no question of

striking down an order passed by this Court under Article

142(1) on the ground that it is inconsistent with Article 32. It

would be noticed that this argument proceeds on the basis

that the order for security infringes the fundamental right

guaranteed by Article 32 and it suggests that under Article

142(1) this Court has jurisdiction to pass such an order. In

our opinion, the argument thus presented is misconceived.

In this connection, it is necessary to appreciate the actual

decision in the case of Sharma [(1959) 1 SCR 806 at

859-860] and its effect. The actual decision was that the

rights claimable under the latter part of Article 194(3) were

10 [1963] Supp. 1 S.C.R. 885 : 1962 SCC Online SC 37

970 [2024] 2 S.C.R.

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not subject to Article 19(1)(a), because the said rights had

been expressly provided for by a constitutional provision

viz. Article 194(3), and it would be impossible to hold that

one part of the Constitution is inconsistent with another

part. The position would, however, be entirely different if

the State Legislature was to pass a law in regard to the

privileges of its members. Such a law would obviously

have to be consistent with Article 19(1)(a). If any of the

provisions of such a law were to contravene any of the

fundamental rights guaranteed by Part III, they would be

struck down as being unconstitutional. Similarly, there can

be no doubt that if in respect of petitions under Article 32

a law is made by Parliament as contemplated by Article

145(1), and such a law, in substance, corresponds to the

provisions of Order 25 Rule 1 or Order 41 Rule 10, it would

be struck down on the ground that it purports to restrict the

fundamental right guaranteed by Article 32. The position

of an order made either under the rules framed by this

Court or under the jurisdiction of this Court under Article

142(1) can be no different. If this aspect of the matter is

borne in mind, there would be no difficulty in rejecting the

Solicitor-General’s argument based on Article 142(1). The

powers of this Court are no doubt very wide and they

are intended to be and will always be exercised in the

interest of justice. But that is not to say that an order

can be made by this Court which is inconsistent with

the fundamental rights guaranteed by Part III of the

Constitution. An order which this Court can make in

order to do complete justice between the parties, must

not only be consistent with the fundamental rights

guaranteed by the Constitution, but it cannot even be

inconsistent with the substantive provisions of the

relevant statutory laws. Therefore, we do not think it

would be possible to hold that Article 142(1) confers upon

this Court powers which can contravene the provisions of

Article 32.

13. In this connection, it may be pertinent to point out

that the wide powers which are given to this Court for

doing complete justice between the parties, can be 

[2024] 2 S.C.R. 971

High Court Bar Association, Allahabad v. State of U.P. & Ors.

used by this Court, for instance, in adding parties to the

proceedings pending before it, or in admitting additional

evidence, or in remanding the case, or in allowing a new

point to be taken for the first time. It is plain that in

exercising these and similar other powers, this Court

would not be bound by the relevant provisions of

procedure if it is satisfied that a departure from the

said procedure is necessary to do complete justice

between the parties.”

(Emphasis added)

21. Another Constitution Bench in the case of Supreme Court Bar

Association v. Union of India & Anr.11, in paragraphs 47 and 48,

held thus:

“47. The plenary powers of this Court under Article 142

of the Constitution are inherent in the Court and are

complementary to those powers which are specifically

conferred on the Court by various statutes though are

not limited by those statutes. These powers also exist

independent of the statutes with a view to do complete

justice between the parties. These powers are of very wide

amplitude and are in the nature of supplementary powers.

This power exists as a separate and independent basis

of jurisdiction apart from the statutes. It stands upon the

foundation and the basis for its exercise may be put on a

different and perhaps even wider footing, to prevent injustice

in the process of litigation and to do complete justice

between the parties. This plenary jurisdiction is, thus,

the residual source of power which this Court may draw

upon as necessary whenever it is just and equitable to

do so and in particular to ensure the observance of the

due process of law, to do complete justice between the

parties, while administering justice according to law.

There is no doubt that it is an indispensable adjunct to all

other powers and is free from the restraint of jurisdiction

and operates as a valuable weapon in the hands of the

Court to prevent “clogging or obstruction of the stream of

11 [1998] 2 SCR 795 : (1998) 4 SCC 409

972 [2024] 2 S.C.R.

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justice”. It, however, needs to be remembered that the

powers conferred on the Court by Article 142 being

curative in nature cannot be construed as powers which

authorise the Court to ignore the substantive rights of

a litigant while dealing with a cause pending before it.

This power cannot be used to “supplant” substantive law

applicable to the case or cause under consideration of the

Court. Article 142, even with the width of its amplitude,

cannot be used to build a new edifice where none

existed earlier, by ignoring express statutory provisions

dealing with a subject and thereby to achieve something

indirectly which cannot be achieved directly. Punishing

a contemner advocate, while dealing with a contempt of

court case by suspending his licence to practice, a power

otherwise statutorily available only to the Bar Council of

India, on the ground that the contemner is also an advocate,

is, therefore, not permissible in exercise of the jurisdiction

under Article 142. The construction of Article 142 must be

functionally informed by the salutary purposes of the article,

viz., to do complete justice between the parties. It cannot

be otherwise. As already noticed in a case of contempt of

court, the contemner and the court cannot be said to be

litigating parties.

48. The Supreme Court in exercise of its jurisdiction

under Article 142 has the power to make such order as

is necessary for doing complete justice “between the

parties in any cause or matter pending before it”. The

very nature of the power must lead the Court to set

limits for itself within which to exercise those powers

and ordinarily it cannot disregard a statutory provision

governing a subject, except perhaps to balance the

equities between the conflicting claims of the litigating

parties by “ironing out the creases” in a cause or matter

before it. Indeed this Court is not a court of restricted

jurisdiction of only dispute-settling. It is well recognised and

established that this Court has always been a law-maker

and its role travels beyond merely dispute-settling. It is a

“problem-solver in the nebulous areas” (see K. Veeraswami

v. Union of India [(1991) 3 SCC 655 : 1991 SCC (Cri) 734] 

[2024] 2 S.C.R. 973

High Court Bar Association, Allahabad v. State of U.P. & Ors.

but the substantive statutory provisions dealing with the

subject-matter of a given case cannot be altogether ignored

by this Court, while making an order under Article 142.

Indeed, these constitutional powers cannot, in any way,

be controlled by any statutory provisions but at the same

time these powers are not meant to be exercised when

their exercise may come directly in conflict with what has

been expressly provided for in a statute dealing expressly

with the subject.”

(Emphasis added)

22. It is very difficult to exhaustively lay down the parameters for the

exercise of powers under Article 142 of the Constitution of India

due to the very nature of such powers. However, a few important

parameters which are relevant to the issues involved in the reference

are as follows:-

(i) The jurisdiction can be exercised to do complete justice between

the parties before the Court. It cannot be exercised to nullify the

benefits derived by a large number of litigants based on judicial

orders validly passed in their favour who are not parties to the

proceedings before this Court;

(ii) Article 142 does not empower this Court to ignore the substantive

rights of the litigants; and

(iii) While exercising the jurisdiction under Article 142 of the

Constitution of India, this Court can always issue procedural

directions to the Courts for streamlining procedural aspects

and ironing out the creases in the procedural laws to ensure

expeditious and timely disposal of cases. This is because, while

exercising the jurisdiction under Article 142, this Court may not

be bound by procedural requirements of law. However, while

doing so, this Court cannot affect the substantive rights of those

litigants who are not parties to the case before it. The right to

be heard before an adverse order is passed is not a matter of

procedure but a substantive right.

(iv) The power of this Court under Article 142 cannot be exercised

to defeat the principles of natural justice, which are an integral

part of our jurisprudence.

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V. Position of the High Courts and its power of superintendence

23. A High Court is also a constitutional Court. It is well settled that it is

not judicially subordinate to this Court. In the case of Tirupati Balaji

Developers (P) Ltd. & Ors. v. State of Bihar & Ors.12, this Court

has explained the position of the High Courts vis-à-vis this Court. In

paragraph 8, this Court observed thus:

“8. Under the constitutional scheme as framed for

the judiciary, the Supreme Court and the High Courts,

both are courts of record. The High Court is not a

court “subordinate” to the Supreme Court. In a way

the canvas of judicial powers vesting in the High Court is

wider inasmuch as it has jurisdiction to issue all prerogative

writs conferred by Article 226 of the Constitution for the

enforcement of any of the rights conferred by Part III of the

Constitution and for any other purpose while the original

jurisdiction of the Supreme Court to issue prerogative writs

remains confined to the enforcement of fundamental rights

and to deal with some such matters, such as Presidential

elections or inter-State disputes which the Constitution does

not envisage being heard and determined by High Courts.

The High Court exercises power of superintendence

under Article 227 of the Constitution over all subordinate

courts and tribunals; the Supreme Court has not been

conferred with any power of superintendence. If the

Supreme Court and the High Courts both were to be

thought of as brothers in the administration of justice,

the High Court has larger jurisdiction but the Supreme

Court still remains the elder brother. There are a few

provisions which give an edge, and assign a superior place

in the hierarchy, to the Supreme Court over High Courts.

So far as the appellate jurisdiction is concerned, in all civil

and criminal matters, the Supreme Court is the highest and

the ultimate court of appeal. It is the final interpreter of the

law. Under Article 139-A, the Supreme Court may transfer

any case pending before one High Court to another High

Court or may withdraw the case to itself. Under Article 141

12 [2004] Supp. 1 SCR 494 : (2004) 5 SCC 1

[2024] 2 S.C.R. 975

High Court Bar Association, Allahabad v. State of U.P. & Ors.

the law declared by the Supreme Court shall be binding

on all courts, including High Courts, within the territory of

India. Under Article 144 all authorities, civil and judicial, in

the territory of India — and that would include High Courts

as well — shall act in aid of the Supreme Court.”

(Emphasis added)

A High Court is constitutionally independent of the Supreme Court of

India and is not subordinate to this Court. This Court has dealt with

the issue of jurisdiction of the High Courts in the case of L. Chandra

Kumar v. Union of India & Ors13. The relevant part of paragraph 78

and paragraph 79 read thus:

“78. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. We, therefore,

hold that the power of judicial review over legislative

action vested in the High Courts under Article 226 and

in this Court under Article 32 of the Constitution is

an integral and essential feature of the Constitution,

constituting part of its basic structure. Ordinarily,

therefore, the power of High Courts and the Supreme

Court to test the constitutional validity of legislations

can never be ousted or excluded.

79. We also hold that the power vested in the High

Courts to exercise judicial superintendence over

the decisions of all courts and tribunals within their

respective jurisdictions is also part of the basic

structure of the Constitution. This is because a situation

where the High Courts are divested of all other judicial

functions apart from that of constitutional interpretation, is

equally to be avoided.”

(Emphasis added)

24. The power of the High Court under Article 227 of the Constitution to

have judicial superintendence over all the Courts within its jurisdiction

will include the power to stay the proceedings before such Courts. By

a blanket direction in the exercise of power under Article 142 of the

Constitution of India, this Court cannot interfere with the jurisdiction

13 [1997] 2 SCR 1186 : (1997) 3 SCC 261

976 [2024] 2 S.C.R.

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conferred on the High Court of granting interim relief by limiting its

jurisdiction to pass interim orders valid only for six months at a time.

Putting such constraints on the power of the High Court will also

amount to making a dent on the jurisdiction of the High Courts under

Article 226 of the Constitution, which is an essential feature that forms

part of the basic structure of the Constitution.

VI. Whether the Court should deal with an issue not arising for

consideration

25. In the case of Sanjeev Coke Manufacturing Company,

8

 a Constitution

Bench of this Court in paragraph 11 held thus:

“11. ..............................................................We have

serious reservations on the question whether it is open to a

court to answer academic or hypothetical questions on such

considerations, particularly so when serious constitutional

issues are involved. We (Judges) are not authorised to

make disembodied pronouncements on serious and

cloudy issues of constitutional policy without battle

lines being properly drawn. Judicial pronouncements

cannot be immaculate legal conceptions. It is but

right that no important point of law should be decided

without a proper lis between parties properly ranged

on either side and a crossing of the swords. We think

it is inexpedient for the Supreme Court to delve into

problems which do not arise and express opinion

thereon.”

(Emphasis added)

In Asian Resurfacing1, there was no lis before this

Court arising out of the orders of stay granted in different

categories of cases pending before the various High Courts.

This Court was dealing with a case under the PC Act. Thus,

an attempt was made to delve into an issue which did not

arise for consideration.

VII. Clause (3) Of Article 226 of the Constitution

26. In this case, it is unnecessary for this Court to decide whether clause

(3) of Article 226 of the Constitution of India is mandatory or directory.

Clause (3) of Article 226 reads thus:

[2024] 2 S.C.R. 977

High Court Bar Association, Allahabad v. State of U.P. & Ors.

“226. Power of High Courts to issue certain writs:

(1) .. .. .. .. .. .. .. .. .. .. .. .. .. ..

(2) .. .. .. .. .. .. .. .. .. .. .. .. .. ..

(3) Where any party against whom an interim order, whether

by way of injunction or stay or in any other manner, is

made on, or in any proceedings relating to, a petition under

clause (1), without—

(a) furnishing to such party copies of such petition and

all documents in support of the plea for such interim

order; and

(b) giving such party an opportunity of being heard,

makes an application to the High Court for the vacation

of such order and furnishes a copy of such application to

the party in whose favour such order has been made or

the counsel of such party, the High Court shall dispose

of the application within a period of two weeks from the

date on which it is received or from the date on which

the copy of such application is so furnished, whichever is

later, or where the High Court is closed on the last day of

that period, before the expiry of the next day afterwards

on which the High Court is open; and if the application is

not so disposed of, the interim order shall, on the expiry

of that period, or, as the case may be, the expiry of the

said next day, stand vacated.”

On its plain reading, clause (3) is applicable only when an

interim relief is granted without furnishing a copy of the writ

petition along with supporting documents to the opposite

party and without hearing the opposite party. Even assuming

that clause (3) is not directory, it provides for an automatic

vacation of interim relief only if the aggrieved party makes

an application for vacating the interim relief and when the

application for vacating stay is not heard within the time

specified. Clause (3) will not apply when an interim order in

a writ petition under Article 226 is passed after the service of

a copy of the writ petition on all concerned parties and after

giving them an opportunity of being heard. It applies only to

ex-parte ad interim orders.

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VIII. Directions issued by the constitutional Courts to decide

pending cases in a time-bound manner

27. The net effect of the directions issued in paragraphs 36 and

37 of Asian Resurfacing1 is that the petition in which the High

Court has granted a stay of the proceedings of the trial, must be

decided within a maximum period of six months. If it is not decided

within six months, the interim stay will be vacated automatically,

virtually making the pending case infructuous. In fact, in paragraph

37, this Court directed that the challenge to the order of framing

charge should be entertained in a rare case, and when the stay

is granted, the case should be decided by the High Court on a

day-to-day basis so that the stay does not operate for an unduly

long period.

28. The Constitution Benches of this Court have considered the issue

of fixing timelines for the disposal of cases in the cases of Abdul

Rehman Antulay3 and P. Ramachandra Rao4

. In the case of Abdul

Rehman Antulay3

, in paragraph 83, this Court held thus:

“83. But then speedy trial or other expressions conveying

the said concept — are necessarily relative in nature. One

may ask — speedy means, how speedy? How long a delay

is too long? We do not think it is possible to lay down any

time schedules for conclusion of criminal proceedings. The

nature of offence, the number of accused, the number

of witnesses, the workload in the particular court, means

of communication and several other circumstances have

to be kept in mind. For example, take the very case in

which Ranjan Dwivedi (petitioner in Writ Petition No.

268 of 1987) is the accused. 151 witnesses have been

examined by the prosecution over a period of five years.

Examination of some of the witnesses runs into more than

100 typed pages each. The oral evidence adduced by the

prosecution so far runs into, we are told, 4000 pages.

Even though, it was proposed to go on with the case five

days of a week and week after week, it was not possible

for various reasons viz., non-availability of the counsel,

non-availability of accused, interlocutory proceedings

and other systemic delays. A murder case may be a

simple one involving say a dozen witnesses which can 

[2024] 2 S.C.R. 979

High Court Bar Association, Allahabad v. State of U.P. & Ors.

be concluded in a week while another case may involve a

large number of witnesses, and may take several weeks.

Some offences by their very nature e.g., conspiracy cases,

cases of misappropriation, embezzlement, fraud, forgery,

sedition, acquisition of disproportionate assets by public

servants, cases of corruption against high public servants

and high public officials take longer time for investigation

and trial. Then again, the workload in each court, district,

region and State varies. This fact is too well known to merit

illustration at our hands. In many places, requisite number

of courts are not available. In some places, frequent

strikes by members of the bar interferes with the work

schedules. In short, it is not possible in the very nature of

things and present-day circumstances to draw a time-limit

beyond which a criminal proceeding will not be allowed to

go. Even in the USA, the Supreme Court has refused to

draw such a line. Except for the Patna Full Bench decision

under appeal, no other decision of any High Court in this

country taking such a view has been brought to our notice.

Nor, to our knowledge, in United Kingdom. Wherever a

complaint of infringement of right to speedy trial is made

the court has to consider all the circumstances of the case

including those mentioned above and arrive at a decision

whether in fact the proceedings have been pending for

an unjustifiably long period. In many cases, the accused

may himself have been responsible for the delay. In such

cases, he cannot be allowed to take advantage of his

own wrong. In some cases, delays may occur for which

neither the prosecution nor the accused can be blamed

but the system itself. Such delays too cannot be treated

as unjustifiable — broadly speaking. Of course, if it is a

minor offence — not being an economic offence — and

the delay is too long, not caused by the accused, different

considerations may arise. Each case must be left to be

decided on its own facts having regard to the principles

enunciated hereinafter. For all the above reasons, we are

of the opinion that it is neither advisable nor feasible

to draw or prescribe an outer time-limit for conclusion

of all criminal proceedings. It is not necessary to do

so for effectuating the right to speedy trial. We are also 

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not satisfied that without such an outer limit, the right

becomes illusory.”

(Emphasis added)

In paragraph 27 of the decision in the case of P. Ramachandra Rao4

,

this Court observed thus:

“27. Prescribing periods of limitation at the end of

which the trial court would be obliged to terminate the

proceedings and necessarily acquit or discharge the

accused, and further, making such directions applicable

to all the cases in the present and for the future amounts

to legislation, which, in our opinion, cannot be done by

judicial directives and within the arena of the judicial

law-making power available to constitutional courts,

howsoever liberally we may interpret Articles 32, 21, 141

and 142 of the Constitution. The dividing line is fine but

perceptible. Courts can declare the law, they can interpret

the law, they can remove obvious lacunae and fill the gaps

but they cannot entrench upon in the field of legislation

properly meant for the legislature. Binding directions can be

issued for enforcing the law and appropriate directions may

issue, including laying down of time-limits or chalking out a

calendar for proceedings to follow, to redeem the injustice

done or for taking care of rights violated, in a given case

or set of cases, depending on facts brought to the notice

of the court. This is permissible for the judiciary to do.

But it may not, like the legislature, enact a provision

akin to or on the lines of Chapter XXXVI of the Code

of Criminal Procedure, 1973.”

(Emphasis added)

The principles laid down in the decision will apply even to civil cases

before the trial courts. The same principles will also apply to a

direction issued to the High Courts to decide cases on a day-to-day

basis or within a specific time. Thus, the directions of the Court that

provide for automatic vacation of the order of stay and the disposal

of all cases in which a stay has been granted on a day-to-day basis

virtually amount to judicial legislation. The jurisdiction of this Court

cannot be exercised to make such a judicial legislation. Only the 

[2024] 2 S.C.R. 981

High Court Bar Association, Allahabad v. State of U.P. & Ors.

legislature can provide that cases of a particular category should

be decided within a specific time. There are many statutes which

incorporate such provisions. However, all such provisions are usually

held to be directory.

29. Ideally, the cases in which the stay of proceedings of the civil/criminal

trials is granted should be disposed of expeditiously by the High

Courts. However, we do not live in an ideal world. A judicial notice

will have to be taken of the fact that except High Courts of smaller

strength having jurisdiction over smaller States, each High Court is

flooded with petitions under Article 227 of the Constitution of India for

challenging the interim orders passed in civil and criminal proceedings,

the petitions under Section 482 of the Cr.PC for challenging the

orders passed in the criminal proceedings and petitions filed in the

exercise of revisional jurisdiction under the CPC and the Cr. PC. A

judicial notice will have to be taken of the fact that in all the High

Courts of larger strength having jurisdiction over larger States, the

daily cause lists of individual Benches of the cases of the aforesaid

categories are of more than a hundred matters. Therefore, once a

case is entertained by the High Court and the stay is granted, the

case has a long life.

30. There is a huge filing of regular appeals, both civil and criminal in

High Courts. After all, the High Courts deal with many other important

matters, such as criminal appeals against acquittal and conviction,

bail petitions, writ petitions, and other proceedings that involve the

issues of liberty under Article 21 of the Constitution of India. The High

Courts deal with matrimonial disputes, old appeals against decrees of

civil courts, and appeals against appellate decrees. There are cases

where senior citizens or second or third-generation litigants are parties.

The High Courts cannot be expected to decide, on a priority basis or

a day-to-day basis, only those cases in which a stay of proceedings

has been granted while ignoring several other categories of cases

that may require more priority to be given.

31. The situation in Trial and district Courts is even worse. In 2002,

in the case of All India Judges’ Association & Ors. v. Union of

India & Ors.14, this Court passed an order directing that the judgeto-population ratio within twenty years should be 50 per million. Even

14 [2002] 2 SCR 712 : (2002) 4 SCC 247

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as of today, we are not able to reach the ratio of even 25 per million.

The directions issued in the case of Imtiyaz Ahmed v. State of

Uttar Pradesh & Ors.15 have not been complied with by the States

by increasing the Judge strength of the Trial and District Courts.

The figures of pendency of cases in our trial Courts are staggering.

There are different categories of cases which, by their very nature,

are required to be given utmost priority, such as the cases of the

accused in jail and the cases of senior citizens. For example, there are

many legislations like the Hindu Marriage Act, 1955, the Protection of

Women from Domestic Violence Act, 2005, the Negotiable Instruments

Act, 1881 etc which prescribe specific time limits for the disposal of

cases. However, due to the huge filing and pendency, our Courts

cannot conclude the trials within the time provided by the statutes.

There is a provision in the Code of Criminal Procedure, 1973, in the

form of Section 309, which requires criminal cases to be heard on a

day-to-day basis once the recording of evidence commences. The

same Section provides that in case of certain serious offences against

women, the cases must be decided within two months of filing the

charge sheet. Unfortunately, our Criminal Courts are not in a position

to implement the said provision. Apart from dealing with huge arrears,

our Trial Courts face the challenge of dealing with a large number of

cases made time-bound by our constitutional Courts. Therefore, in

the ordinary course, the constitutional Courts should not exercise the

power to direct the disposal of a case before any District or Trial Court

within a time span. In many cases, while rejecting a bail petition, a

time limit is fixed for disposal of trial on the ground that the petitioner

has undergone incarceration for a long time without realising that

the concerned trial Court may have many pending cases where the

accused are in jail for a longer period. The same logic will apply to the

cases pending before the High Courts. When we exercise such power

of directing High Courts to decide cases in a time-bound manner, we

are not aware of the exact position of pendency of old cases in the

said Courts, which require priority to be given. Bail petitions remain

pending for a long time. There are appeals against conviction pending

where the appellants have been denied bail.

32. Therefore, constitutional Courts should not normally fix a time-bound

schedule for disposal of cases pending in any Court. The pattern of

15 [2017] 1 SCR 305 : (2017) 3 SCC 658

[2024] 2 S.C.R. 983

High Court Bar Association, Allahabad v. State of U.P. & Ors.

pendency of various categories of cases pending in every Court,

including High Courts, is different. The situation at the grassroots level

is better known to the judges of the concerned Courts. Therefore,

the issue of giving out-of-turn priority to certain cases should be best

left to the concerned Courts. The orders fixing the outer limit for the

disposal of cases should be passed only in exceptional circumstances

to meet extraordinary situations.

33. There is another important reason for adopting the said approach.

Not every litigant can easily afford to file proceedings in the

constitutional Courts. Those litigants who can afford to approach the

constitutional Courts cannot be allowed to take undue advantage by

getting an order directing out-of-turn disposal of their cases while

all other litigants patiently wait in the queue for their turn to come.

The Courts, superior in the judicial hierarchy, cannot interfere with

the day-to-day functioning of the other Courts by directing that only

certain cases should be decided out of turn within a time frame. In

a sense, no Court of law is inferior to the other. This Court is not

superior to the High Courts in the judicial hierarchy. Therefore, the

Judges of the High Courts should be allowed to set their priorities on

a rational basis. Thus, as far as setting the outer limit is concerned,

it should be best left to the concerned Courts unless there are very

extraordinary circumstances.

IX. Procedure to be adopted by High Courts while passing interim

order of stay of proceedings and for dealing with the applications

for vacating interim stay

34. At the same time, we cannot ignore that once the High Court stays

a trial, it takes a very long time for the High Court to decide the main

case. To avoid any prejudice to the opposite parties, while granting

ex-parte ad-interim relief without hearing the affected parties, the High

Courts should normally grant ad-interim relief for a limited duration. After

hearing the contesting parties, the Court may or may not confirm the

earlier ad-interim order. Ad-interim relief, once granted, can be vacated

or affirmed only after application of mind by the concerned Court. Hence,

the Courts must give necessary priority to the hearing of the prayer

for interim relief where ad-interim relief has been granted. Though the

High Court is not expected to record detailed reasons while dealing

with the prayer for the grant of stay or interim relief, the order must give

sufficient indication of the application of mind to the relevant factors.

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35. An interim order passed after hearing the contesting parties cannot

be vacated by the High Court without giving sufficient opportunity

of being heard to the party whose prayer for interim relief has been

granted. Even if interim relief is granted after hearing both sides, as

observed earlier, the aggrieved party is not precluded from applying

for vacating the same on the available grounds. In such a case, the

High Court must give necessary priority to the hearing of applications

for vacating the stay, if the main case cannot be immediately taken

up for hearing. Applications for vacating interim reliefs cannot be

kept pending for an inordinately long time. The High Courts cannot

take recourse to the easy option of directing that the same should

be heard along with the main case. The same principles will apply

where ad-interim relief is granted. If an ad-interim order continues for

a long time, the affected party can always apply for vacating ad-interim

relief. The High Court is expected to take up even such applications

on a priority basis. If an application for vacating ex-parte ad interim

relief is filed on the ground of suppression of facts, the same must

be taken up at the earliest.

D. CONCLUSIONS

36. Hence, with greatest respect to the Bench which decided the case,

we are unable to concur with the directions issued in paragraphs

36 and 37 of the decision in the case of Asian Resurfacing1

. We

hold that there cannot be automatic vacation of stay granted by the

High Court. We do not approve the direction issued to decide all

the cases in which an interim stay has been granted on a day-today basis within a time frame. We hold that such blanket directions

cannot be issued in the exercise of the jurisdiction under Article 142

of the Constitution of India. We answer both the questions framed

in paragraph 5 above in the negative.

37. Subject to what we have held earlier, we summarise our main

conclusions as follows:

a. A direction that all the interim orders of stay of proceedings

passed by every High Court automatically expire only by reason

of lapse of time cannot be issued in the exercise of the jurisdiction

of this Court under Article 142 of the Constitution of India;

b. Important parameters for the exercise of the jurisdiction under

Article 142 of the Constitution of India which are relevant for

deciding the reference are as follows:

[2024] 2 S.C.R. 985

High Court Bar Association, Allahabad v. State of U.P. & Ors.

(i) The jurisdiction can be exercised to do complete justice

between the parties before the Court. It cannot be exercised

to nullify the benefits derived by a large number of litigants

based on judicial orders validly passed in their favour who

are not parties to the proceedings before this Court;

(ii) Article 142 does not empower this Court to ignore the

substantive rights of the litigants;

(iii) While exercising the jurisdiction under Article 142 of the

Constitution of India, this Court can always issue procedural

directions to the Courts for streamlining procedural aspects

and ironing out the creases in the procedural laws to ensure

expeditious and timely disposal of cases. However, while

doing so, this Court cannot affect the substantive rights of

those litigants who are not parties to the case before it.

The right to be heard before an adverse order is passed

is not a matter of procedure but a substantive right; and

(iv) The power of this Court under Article 142 cannot be

exercised to defeat the principles of natural justice, which

are an integral part of our jurisprudence.

c. Constitutional Courts, in the ordinary course, should refrain

from fixing a time-bound schedule for the disposal of cases

pending before any other Courts. Constitutional Courts may

issue directions for the time-bound disposal of cases only in

exceptional circumstances. The issue of prioritising the disposal

of cases should be best left to the decision of the concerned

Courts where the cases are pending; and

d. While dealing with the prayers for the grant of interim relief,

the High Courts should take into consideration the guidelines

incorporated in paragraphs 34 and 35 above.

38. We clarify that in the cases in which trials have been concluded as

a result of the automatic vacation of stay based only on the decision

in the case of Asian Resurfacing1

, the orders of automatic vacation

of stay shall remain valid.

39. The reference is answered accordingly. We direct the Registry to

place the pending petitions before the appropriate Benches for

expeditious disposal.

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Pankaj Mithal, J.

1. Concurring with the opinion expressed by my brother Justice Oka for

himself and other puisne Judges, including the Hon’ble Chief Justice, I

would like to add that in Asian Resurfacing of Road Agency Private

Limited & Anr. vs. Central Bureau of Investigation1

, this Court

while deciding the issues arising therein went ahead in observing

and directing that where a challenge to an order framing charge is

entertained and stay is granted, the matter must be decided on day to

day basis so that the stay may not continue for an unduly long time.

It was further observed that though no mandatory time limit may be

fixed for deciding such a challenge, the stay order may not normally

exceed two to three months or a maximum of six months unless it is

extended by specific speaking order. Further directions were issued

that in all pending matters before the High Court or other Courts

relating to Prevention of Corruption Act or all other civil or criminal

cases where stay is operating in pending trials, it will automatically

lapse after six months unless a speaking order is passed extending

the same. The Trial Court may, on expiry of the above period resume

the proceedings without waiting for any intimation unless express

order extending the stay is produced before the Court.

2. The above directions in Asian Resurfacing issued in exercise of

power of doing complete justice under Article 142 of the Constitution

of India are analogous to the constitutional provision as contained in

clause (3) of Article 226 of the Constitution of India which has been

inserted with effect from 1.8.1979 vide the Constitution (Forty-fourth

Amendment) Act, 1978. It reads as under:

“(3) Where any party against whom an interim order,

whether by way of injunction or stay or in any other manner,

is made on, or in any proceedings relating to, a petition

under clause (1), without—

(a) furnishing to such party copies of such petition and

all documents in support of the plea for such interim

order; and

(b) giving such party an opportunity of being heard,

1 [2018] 2 SCR 1045 : (2018) 16 SCC 299

[2024] 2 S.C.R. 987

High Court Bar Association, Allahabad v. State of U.P. & Ors.

makes an application to the High Court for the vacation

of such order and furnishes a copy of such application to

the party in whose favour such order has been made or

the counsel of such party, the High Court shall dispose

of the application within a period of two weeks from the

date on which it is received or from the date on which

the copy of such application is so furnished, whichever is

later, or where the High Court is closed on the last day of

that period, before the expiry of the next day afterwards

on which the High Court is open; and if the application is

not so disposed of, the interim order shall, on the expiry

of that period, or, as the case may be, the expiry of the

said next day, stand vacated.”

3. No doubt, the above provision is in respect to petitions filed before the

High Court invoking the extraordinary jurisdiction of the Court and is

not meant to be applied specifically to other proceedings, nonetheless

the principles behind the said provision can always be extended to

other proceedings as has been done in Asian Resurfacing. It is worth

noting that wherever under a statute any such time limit has been

prescribed or is fixed for deciding a particular nature of proceeding,

it has been held to be directory in nature rather than mandatory. So

appears to be the position with regard to the applicability of Article

226(3) of the Constitution of India.

4. It is well recognised that no one can be made to suffer on account of

any mistake or fault of the Court which means that even delay on part

of the Court in deciding the proceedings or any application therein

would not be detrimental to any of the parties to the litigation much

less to the party in whose favour an interim stay order is passed.

5. It is settled in law that grant of interim stay order ought to be

ordinarily by a speaking order and therefore as a necessary corollary,

a stay order once granted cannot be vacated otherwise than by a

speaking order, more so, when its extension also requires reasons

to be recorded.

6. It is noticeable that under Article 226(3) of the Constitution of India,

the automatic vacation of the stay order envisages making of an

application to the High Court for the vacation of the interim stay

order. Therefore, filing of an application for vacating the stay order

is a sine qua non for triggering the automatic vacation of the stay 

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order under Article 226(3) if such an application is not decided within

the time prescribed of two weeks.

7. In other words, applying the above analogy or principle, the stay order

granted in any proceedings would not automatically stand vacated

on the expiry of a particular period until and unless an application to

that effect has been filed by the other side and is decided following

the principles of natural justice by a speaking order.

8. Sometimes, in quest of justice we end up doing injustice. Asian

Resurfacing is a clear example of the same. Such a situation created

ought to be avoided in the normal course or if at all it arises be

remedied at the earliest. In doing so, we have to adopt a practical

and a more pragmatic approach rather than a technical one which

may create more problems burdening the courts with superfluous

or useless work. It is well said that useless work drives out the

useful work. Accordingly, it is expedient in the interest of justice

to provide that a reasoned stay order once granted in any civil or

criminal proceedings, if not specified to be time bound, would remain

in operation till the decision of the main matter or until and unless

an application is moved for its vacation and a speaking order is

passed adhering to the principles of natural justice either extending,

modifying, varying or vacating the same.

9. The reference made to this Court is answered and disposed of

accordingly.

Headnotes prepared by: Ankit Gyan Result of the case:

Reference answered.