Manipur High Court
M/S Avisy Services Pvt Ltd vs M/S Nimbus Systems (P) Ltd P-33 on 18 February, 2025
Author: A.Guneshwar Sharma
Bench: A.Guneshwar Sharma
Non-reportable
IN THE HIGH COURT OF MANIPUR
AT IMPHAL
MC (WP(C)) No.810 of 2024 in
WP(C) No.846 of 2024
M/S Avisy Services Pvt Ltd, 4 2b,
NDA Pashan Road, Bavdhan, Pune-
411021, Maharashtra, India, represented
by its Managing Director/CEO
... Applicant/R-3 in WP
-Versus-
1. M/s Nimbus Systems (P) Ltd P-33,
Phase III, Kasba Industrial Estate,
Anandapur, Kolkata, West Bengal 700107,
Represented by its authorised person,
Ms Olivia Kamei, PR Executive (Manipur)
Aged 30 years, d/o Solomon Kamei,
Resident of Canchipur Thongju Part III
PO & PS Singjamei, District Imphal East,
Manipur 795002
....Respondent No.1/Writ Petitioner
2. The State of Manipur represented by its
Principal Secretary/Commissioner (Power), Government of
Manipur, Secretariat Complex, Babupara, Imphal West
District, Manipur-795001
.... Respondent No.2/R-1 in WP
3. The Manipur State Power Distribution Company Limited
(MSPDCL), Secure Office Complex, 3rd Floor, AT Line, North
AOC, Imphal, through its Managing Director;
.... Respondent No.2/R-2 in WP
4. M/s Infinite Computer Solutions (India) Ltd., 21,
Bhagawan Marg, Institutional Area, Sector 44, Gurugram,
Haryana-122001, India, represented by its Managing
Director/CEO.
.... Respondent No.2/R-4 in WP
MC[WP(C)] NO. 810 OF 2024 IN WP(C) NO. 846 OF 2024 1
BEFORE
HON'BLE MR. JUSTICE A.GUNESHWAR SHARMA
For the Applicant :: Mr.Sarvan Kumar, Advocate
For the respondents:: Mr.N.Ibotombi, Sr.Adv & Mr. N.
Leo, Advocate for R-1/Writ Petnr.
Mrs. Ch. Sundari, GA for State
Mr. Y. Nirmolchand, Sr. Adv &
Mr. L. Raju for MSPDCL
Mr. Saumitra Singhal, Adv. for R4.
Date of hearing :: 31.01.2025
Date of order :: 18.02.2025
O R D E R (CAV)
[1] This application MC[WP(C)] No. 810 of 2024 is filed by
the applicant/respondent No. 3 for vacation of the interim stay
orders dated 11.12.2024 and 13.12.2024 passed by this Court in
WP(C) No.846 of 2024 filed by the respondent No.1/writ petitioner.
It is stated that the interim orders have been passed ex-parte,
without hearing the applicant and private respondent based on
incomplete facts and narration and non-maintainability of the writ
petition. The application has been filed in terms of liberty granted
by this Court vide order dated 18.12.2024. As permitted by this
Court, the applicant and writ petitioner also filed short written
submissions.
[2] Brief fact leading to filing of the instant misc
application is that the petitioner in WP(C) No.846 of 2024, while
moving the Court for the first time on 11.12.2024, the matter was
ordered to be listed on 13.12.2024 in the motion column as the
learned Government Advocate was without file. It was directed to
maintain status quo as on date till the next date. On 13.12.2024,
this Court was pleased to order that the authorities should not
MC[WP(C)] NO. 810 OF 2024 IN WP(C) NO. 846 OF 2024 2
finalise the bidding evaluation process and the work order shall not
be issued till the next date. On 18.12.2024, this Court issued notice
in the writ petition and learned GA accepted notice on behalf of State
respondent and MSPDCL and Mr. Sharvan Kumar, learned counsel
on behalf of the applicant/respondent No.3 and directed to take step
for notice to respondent No.4 by way of speed post. The interim
order was extended till next date giving liberty to the private
respondents for vacation of the earlier interim order. The matter
was directed to be listed on 20.01.2025. The application for vacation
of the interim orders has three components- (i) being ex-parte
without hearing the private parties, (ii) incomplete and suppression
of facts by the writ petitioner, and (iii) non-maintainability of the
writ petition.
[3] Mr. Sarvan Kumar, learned counsel for the
applicant/respondent No.3 has submitted that the MC (WP(C))
No.810 of 2024 was filed and moved on 19.12.2024 and the Hon'ble
Court issued Notice fixing on 20.1.2025. It is stated that as the
application has not been disposed of within a period of two weeks,
the ad-interim order dated 11.12.2024 and 13.12.2024 should be
vacated automatically in terms of the stipulation under Article 226(3)
of the Constitution of India. Further, it is stated that the writ
petitioner obtained the ad-interim ex-parte order on 11.12.2024 in
absence of applicant/respondent No.3 by suppressing the materials
facts and misled the court by stating incomplete facts about the
bidding process. It is further stated that the bidding process had
already been completed on 14.11.2024 and applicant was declared
as L1 and was about to start the work as assigned by the
department. Further, it is stated that the writ petitioner only stated
about the acknowledgment documents attached without submission
of Bid by the petitioner on 30.08.2024 at 01.52 PM within the time
as per the corrigendum dated 16.8.2024 but suppressed the
material fact that after 30.8.2024 the petitioner modified its bid four
MC[WP(C)] NO. 810 OF 2024 IN WP(C) NO. 846 OF 2024 3
times i.e. on 2.9.2024 at 11.32 AM, 2.9.2924 at 11.37 AM for change
in tender fees and on 5.9.2024 at 4.55 PM, 05.09.2024 at 5.00 PM
and Bid Documents resubmitted and obtained the interim order
dated 13.12.2024. During the course of hearing, learned counsel for
the applicant has heavily relied on the provision of Article 226(3) of
the Constitution of India to impress upon this Court that since the
application MC (WP(C)) No.810 of 2024 for vacation of stay filed on
19.12.2024 could not be disposed of within two weeks, the interim
orders dated 11.12.2024 and 13.12.2024 would automatically stand
vacated. In the written submission dated 04.02.2025 filed by the
applicant and during the course of hearing, the only ground pleaded
is for automatic vacation of the interim order on expiry of 14 days
upon filing of such application as stipulated by Article 226(3).
[4] Mr. Sarvan Kumar, learned counsel for the applicant
refers to the decisions of various High Courts holding that the
provision of Article 226(3) of the Constitution is mandatory and on
expiration of the 14 days, the interim order would stand vacated: (i)
Gheesa Lal v. State of Rajasthan, AIR 1981 Raj 65; (ii)
Krishna Kumar Aganvala v. RBI, AIR 1991 Cal 272; (iii)
Raghunandana v. RTA, Palkkad, AIR 1996 Ker 115; (iv) R C
Chaudhary v. Dr. Bhim Rao Ambedkar University, AIR 2004
All 95. Reliance is also place on a decision of Jhahrkhand High Court
in the case of DAV High School that the application for vacating
the interim order ought to be filed at the earliest possible time.
[5] Learned counsel also draws the attention of this Court
to the decision of a learned Single Judge of this Court in the case of
Mr. Khaipao Haokip v. Mr. G. Suanchinpau & Ors: 2018 SCC
Online Mani 82 holding an ex-parte interim order would stand
vacated on expiry of 2 weeks from the date of filing of an application
under Article 226(3). In arriving the said decision, the learned Single
Judge followed a decision of Full Bench of Gurajrat High Court in the
MC[WP(C)] NO. 810 OF 2024 IN WP(C) NO. 846 OF 2024 4
case of District Development Officer v. Maniben Virabhai:
2000 SCC Online Guj 115.
[6] Mr. Sarvan Kumar, learned counsel for the
applicant has also referred to the concurring decision in the
Constitution Bench judgment in the case of Allahabad High Court
Bar Assn. v. State of U.P., (2024) 6 SCC 267 specially para 52,
53, 54, 55, 56 to the point that a party cannot be made to suffer on
account of any mistake or fault of the court and filing of the
application under Article 226(3) is sine qua non for vacating the
interim order on expiry of the two weeks time. Learned counsel
submits that the applicant/respondent No.3 has already moved an
application on 19.12.2024 and on expiration of 14 days, the interim
orders dated 11.12.2024 would stand vacated automatically.
[7] However, it is the case of respondent No.1/writ
petitioner that on 11.12.2024 at the request of learned GA, the
matter was directed to be listed on 13.12.2024 in motion column
with a direction to maintain status quo as on dated till next date. On
13.12.2023 and after hearing learned counsel for the writ petitioner
and learned GA, this Court passed ad-interim order on merit on
appreciation of various defects in the tendering process and directed
the authorities not to finalize the bidding evaluation process and also
not to issue work order till next date and fixed the matter on
18.12.2024 in the motion column. On 18.12.2024, this Court issued
notice and learned GA accepted notice on behalf of respondent Nos.
1 & 2 and Mr. Sarvan Kumar, learned counsel on behalf of the
applicant herein/respondent No.3 and directed to take step for
respondent No.4 and post the case on 20.01.2025. Earlier interim
order was extended till next date in presence of the learned counsel
for the applicant/respondent No.3 as well as learned GA and the
same was not objected by him. On 19.12.2024, the application, MC
(WP(C)) No.810 of 2024 for vacation of stay was filed by the
applicant/ respondent No.3 and the same was taken up on that day
MC[WP(C)] NO. 810 OF 2024 IN WP(C) NO. 846 OF 2024 5
as unlisted item and this Court issued notice and directed to list the
same on 20.01.2025 for consideration of vacation of the interim
order. Mr. N. Ibotombi, learned senior counsel has pointed out that
earlier interim order was extended in presence of the leaned counsel
for the applicant without any objection and since then the interim
order has been extended from time to time in his presence.
[8] Mr. N. Ibotombi, learned senior counsel for the writ
petitioner urges that once the ex-parte interim has been passed on
consideration of materials before the court and the same has been
extended in presence of the opposite party, the ex-parte ad-interim
order has been converted into an interim order and such an order
cannot automatically be vacated on expiry of 14 days as stipulated
by provision of Article 226(3) of the Constitution. It is submitted that
such interim order has to be vacated on merit after hearing the
parties. It is pointed out that in the present case, the interim order
11.12.2024 and specially order dated 13.12.2024 was extended in
presence of the learned counsel for the applicant on 18.12.2024 and
the same became an interim order and it cannot be vacated
automatically on expiry of 14 days. In this respect, learned senior
counsel relies on para 33 & 34 of the Constitution Bench judgment
in the case of Allahabad High Court Bar Assn. (supra) to the
point that interim order cannot be vacated automatically and the
same can be done after hearing parties. Learned senior counsel also
refers to a Full Bench decision of Gauhati High Court in the case of
Rukuvotu Ringa & Ors v. Meyalemla & Ors: 2024 SCC OnLine
Gau 1399 which follows the decision the Constitution Bench as
referred above. Full Bench has clarified that the ad-interim order is
converted to an interim order only after an opportunity of being
heard is granted to all parties and automatic vacation of ad-interim
order on expiry of two weeks cannot be applied to such order.
[9] Mr. N. Ibotombi, learned senior counsel concludes that
since applicant/respondent No.3 was present on 18.12.2024 when
MC[WP(C)] NO. 810 OF 2024 IN WP(C) NO. 846 OF 2024 6
the interim order was extended and the ex-parte interim order
become an interim order and such the interim order would not
automatically stand vacated on expiry of 2 weeks at the instance of
the respondent No.3. It is also pointed out that the respondent No.4
in whose absence the ex-parte interim order was passed, never filed
an application for vacating ex-parte interim order. It is submitted
that the application is not maintainable.
[10] Learned counsel for other parties did not make any
submission on the question of automatic vacating the interim order
on expiry of the two weeks as contemplated by Article 226(3) of the
Constitution.
[11] This Court has perused the materials on record, the
pleadings, case law and the written submissions. The application MC
(WP(C)) No.810 of 2024 for vacation of stay has been filed by the
applicant/respondent No.3 on three aspects: (i) without hearing
private respondents; (ii) concealment of facts, and (iii) non-
maintainability of the writ petition. However, the submissions during
hearing and written submission have been confined to the issue of
automatic vacation of ex-parte ad-interim order on expiry of two
weeks upon filing of such application or serving of copy of the
application. In the circumstances, this Court will confine for the
moment to the issue of automatic vacation of interim order in terms
of Article 226(3) of the Constitution.
[12] There are divergent views of the High Court in this
regard. In para 4 of the written submission of Mr. Sarvan Kumar,
learned counsel for the applicant, one set of High Courts including
High Court of Manipur held that the provisions of Article 226(3) is
mandatory and the interim order would automatically vacate on
expiry of 2 weeks. Madras High Court held in the case of T.
Gnanasambanthan v. Board of Governor, 2014 SCC OnLine
Mad 235 that the Article 226(3) is directory. Constitution Bench in
Allahabad High Court Bar Assn. (supra) held that it is
MC[WP(C)] NO. 810 OF 2024 IN WP(C) NO. 846 OF 2024 7
unnecessary to decide clause (3) of Article 226 of the Constitution
as mandatory or directory, but laid down that the provision will not
apply when the interim order was passed after service of copy of
writ petition on all parties and after giving opportunity of being
heard. It was held that such interim order to be vacated after
hearing all parties. Full Bench of Gauhati High Court relying on the
Constitution Bench decision held that the provision of Article 226(3)
is mandatory and once the ad-interim is extended, it is converted to
interim order and cannot be vacated automatically on expiry of two
weeks after failure to dispose of the application. Full Bench of
Gauhati High Court differs from the opinion of Full Bench of Gujarat
High Court reported as 2000 SCC Online Guj 115 to the point of
calculation of two weeks and held that the same would be from the
date on which the application was placed before the Court.
[13] It will be appropriate to refer to the decisions of
Constitution Bench and Full Bench of Gauhati High Court. The same
are reproduced below:
[14] In the case Allahabad High Court Bar Assn. v.
State of U.P., (2024) 6 SCC 267, a Constitution Bench of Five
Judges of Hon'ble Supreme Court, while considering the correctness
of the decision in Asian Resurfacing [(2018) 16 SCC 299] of
automatic vacation of stay orders passed by High Court in all cases
on expiry of 6 months, discussed the provisions of Article 226(3) of
the Constitution with respect to vacation of ex-parte interim order.
The relevant para (specially para 33, 34, 44 & 45) are extracted
below for ready reference:
ABHAY S. OKA, J. (for Chandrachud, C.J., himself,
Pardiwala and Manoj Misra, JJ.;
VII. Clause (3) of Article 226 of the Constitution
33. 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:
MC[WP(C)] NO. 810 OF 2024 IN WP(C) NO. 846 OF 2024 8
"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."
34. On its plain reading, clause (3) of Article 226 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 parties concerned and after giving them
an opportunity of being heard. It applies only to ex parte ad
interim orders.
..........................................................
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
MC[WP(C)] NO. 810 OF 2024 IN WP(C) NO. 846 OF 2024 9
44. 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 court concerned. 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.
45. 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
46. Hence, with greatest respect to the Bench which
decided the case, we are unable to concur with the
directions issued in paras 36 and 37 of the decision in Asian
MC[WP(C)] NO. 810 OF 2024 IN WP(C) NO. 846 OF 2024 10
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-to-day 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 para 7 above in the negative.
47. Subject to what we have held earlier, we summarise our
main conclusions as follows:
47.1. 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;
47.2. 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:
(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.
47.3. 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
MC[WP(C)] NO. 810 OF 2024 IN WP(C) NO. 846 OF 2024 11
only in exceptional circumstances. The issue of prioritising
the disposal of cases should be best left to the decision of
the courts concerned where the cases are pending; and
47.4. While dealing with the prayers for the grant of interim
relief, the High Courts should take into consideration the
guidelines incorporated in paras 44 and 45 above.
48. 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 Asian Resurfacing1, the orders
of automatic vacation of stay shall remain valid.
........
PANKAJ MITHAL, J. (concurring)-- Concurring with the
opinion expressed by my Brother Oka, J. for himself and
other puisne Judges, including the Hon'ble Chief Justice, I
would like to add that in Asian Resurfacing of Road Agency
(P) Ltd. v. CBI1, 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 the 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.
51. The above directions in Asian Resurfacing1 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:
MC[WP(C)] NO. 810 OF 2024 IN WP(C) NO. 846 OF 2024 12
"226. (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."
52. 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 Resurfacing1. 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.
53. 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.
54. 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
MC[WP(C)] NO. 810 OF 2024 IN WP(C) NO. 846 OF 2024 13
vacated otherwise than by a speaking order, more so, when
its extension also requires reasons to be recorded.
55. 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 order
under Article 226(3) if such an application is not decided
within the time prescribed of two weeks.
56. 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.
[15] A Three Judges Full Bench of Gauhati High Court held
in the case of Rukuvotu Ringa & Ors v. Meyalemla & Ors: 2024
SCC OnLine Gau 1399 that the provision of Article 226(3) of the
Constitution of India is not directory (ie, mandatory) and laid down
procedures for vacating the ad-interim order on application by the
party not heard at the time of passing such ad-interim order. It has
been clarified that the ad-interim is converted to an interim order
only after an opportunity of being heard is granted to all parties and
automatic vacation of ad-interim order on expiry of two weeks
cannot be applied to such order. In arriving the decision, reference
is made to the decision of Hon'ble Supreme Court in the case of
High Court Bar Association Allahabad (supra) and partly
differs from the Full Bench decision of Gujarat High Court in the case
of District Development Officer (supra). Relevant para are
reproduced below:
45. Accordingly, we decide the reference as herein under.
(i) Article 226(3) of the Constitution is not a directory
provision.
MC[WP(C)] NO. 810 OF 2024 IN WP(C) NO. 846 OF 2024 14
(ii) An order referred to in Article 226(3) of
the Constitution is an ad-interim order. The said ad-interim
order is required to be of limited duration or in other words,
the existence of the ad-interim order has to limited to a date
so fixed.
(iii) The ad-interim order is converted to an interim order
only after an opportunity of being heard is granted on the
prayer for interim relief to all parties to the proceedings.
(iv) The High Court on an application filed under
Article 226(3) of the Constitution may reject the application
or vacate, modify and/or alter the ad-interim order or may
extend the ad-interim order in the presence of the parties
to the lis. Once the ad-interim order is extended after
hearing both the parties, it shall then be converted into an
interim order and the prescription for automatic vacation of
the ad-interim order for not being disposed within two
weeks cannot be applied. However, the High Court can still
vacate the interim order on various grounds viz. (i) when a
litigant, after obtaining an interim order deliberately
prolongs the proceedings either by seeking adjournments
on unwarranted grounds or remains absent when the main
case in which the interim relief is granted is called out for
hearing before the High Court with the object of taking
undue advantage of the interim order and/or (ii) when the
High Court finds that the interim order is granted as a result
of either suppression or misrepresentation of material facts
by the party in whose favour the interim order of stay was
made and/or (iii) the High Court finds that there are material
changes in the circumstances requiring interference with the
interim order passed earlier. The above grounds so stated
are not exhaustive and there can be other valid grounds for
vacating an interim order.
(v) The term "makes an application to the High Court" and
"the date on which it is received" would mean when the
application is filed seeking vacation of an ad-interim order
is placed before the learned Judge(s) who is/are holding the
roster as endorsed by the learned Chief Justice of the High
Court and date on which such an application is listed before
the learned Judge(s) for the first time.
[16] From the above, it is clear that ex-parte ad-interim
order has become interim order once, the same has been extended
in presence of the opposite party and the automatic vacation of the
MC[WP(C)] NO. 810 OF 2024 IN WP(C) NO. 846 OF 2024 15
interim order on failure to dispose of the application for vacation of
stay order within two weeks as stipulated by Article 226(3) of the
Constitution will not be applicable. This has been observed by the
majority in para 33, 34, 44 & 45 in High Court Bar Association
Allahabad (supra). In the present case, the interim orders dated
11.12.2024 and 13.12.2024 were extended in presence of applicant/
respondent No.3 on 18.12.2024 without any objection and the same
become interim order. It may be noted that the respondent No.4
who was not heard at the time of passing of the interim orders, did
not file any application under the provision of Article 226(3) of the
Constitution for vacation of the interim order. In the circumstances,
the ex-parte interim orders dated 11.12.2024 and 13.12.2024 (now
converted to interim order upon extension in presence of the
applicant/respondent No.3 vide order dated 18.12.2024) have to be
vacated after hearing the parties on merit. As a result, automatic
vacation of interim order on expiry of two-week time stipulated by
clause 3 of the Article 226 of the Constitution of India will not be
applicable in the peculiar facts of the present case.
[17] List the application MC(WP(C)) No. 810 of 2024 and
connected matters on 26.02.2025 for further proceeding.
JUDGE
Priyojit
RAJKUMAR Digitally
RAJKUMAR
signed by
PRIYOJIT PRIYOJIT SINGH
Date: 2025.02.18
SINGH 17:57:30 +05'30'
MC[WP(C)] NO. 810 OF 2024 IN WP(C) NO. 846 OF 2024 16
