Research › Search › Judgment

Jharkhand High Court · body

2005 DIGILAW 286 (JHR)

DHONBAD v. STATE OF JHARKHAND

2005-04-13

N.N.TIWARI

body2005
Judgment : ( 1 ) IN this application, the respondent No. 4/applicant has prayed for vacating the interim order dated 6-5-2003 passed in the writ application, W. P. (S) No. 2135 of 2003 from perusal of the said order dated 6-5-2003, it appears that the notice was issued to the respondent No. 4 and the counsel for the State was given five weeks time to obtain instructions and file counter affidavit. The case was fixed for admission for 11th of July, 2003 and the following interim order was passed :- "until further order the respondent No. 4 shall not function, but the petitioner shall pay him the subsistence allowance. The petitioner may also proceed against the Respondent No. 4 departmentally and may pass appropriate order in accordance with law, after notice to him subject to the decision of the case. It will be open to the concerned respondents to ask for appropriate modification/clarification of this interim order. " ( 2 ) IT appears from the record that the respondent No. 4 i. e. the applicant appeared on 10-7-2003 and filed a detailed counter affidavit. The respondent No. 4 applicant, however, did not chose to object the interim order at that time and he did not file any application for vacating the interim order. The respondent No. 4/applicant, thereafter, filed supplementary counter affidavit on 9-9-2003, but even on that day, no application was filed for vacating the interim order. Thereafter, by an order dated 4-11-2003, this writ application was admitted for hearing. The respondent No. 4 at that time too did not object to the interim order and did not file any application for vacating the same. After more than a year from the date of admission, the respondent No. 4-appli-cant has filed the instant application dated 4-1-2005 praying therein for vacating the interim order dated 6-5-2003. ( 3 ) WHEN this interlocutory application is taken up for hearing, Mr. K. K. Jha kamal learned counsel appearing on behalf of the respondent No. 4-applicant submitted that he does not want to go into the merits of his application as the same having not been disposed of within the period prescribed under article 226 (3) of the Constitution, the interim order automatically stood vacated under the said provision. ( 4 ) MR. ( 4 ) MR. J. K. Pasari, learned counsel appearing on behalf of the petitioner refuted the said stand of the respondent No. 4 and submitted that there is absolutely no merit in the application filed by the respondent no. 4-applicant, but since the respondent no 4-applicant, himself has not pressed the petition on merit, the petitioner does not want to address this Court on the same. However, learned counsel submitted that the claim of automatic vacation of the interim order passed in the writ application is wholly misconceived, frivolous and baseless. Learned counsel submitted that the respondent No. 4 has appeared as far back as in the year 2003 and filed his counter affidavit and thereafter he also filed a supplementary counter affidavit, but he did not prefer to file any application for vacating the interim order. According to the learned counsel, since the petitioner did not file the application for vacating the interim order when he first time appeared in the year 2003, there is no consequential effect of Article 226 (3)on any petition filed thereafter. Learned counsel submitted that the nature of the interim order passed in this case does not come within the ambit of Article 226 (3) as the order is (i) to pay subsistence allowance to the respondent No. 4; and (ii) to proceed against the respondent No. 4 departmentally and to pass appropriate order in accordance with law after notice to him subject to the decision of the case. Learned counsel submitted that the object behind Article 226 (3)of the Constitution of India is to afford an opportunity of hearing to a party against whom an interim order is passed in his absence. In this case, the order passed against the respondent No. 4 is to proceed depart-mentally and pass appropriate order in accordance with law after notice to the respondent No. 4 and that too the same has been made subject to the decision of the case. Liberty was given to the petitioner to ask for appropriate modification/clarification of the interim order, but the respondent No. 4 applicatn has not filed any application for modification/clarification, when he appeared for the first time in 2003. The instant application has been filed at this stage after about more than a year of his appearance and filing his counter affidavit and supplementary counter affidavit. The instant application has been filed at this stage after about more than a year of his appearance and filing his counter affidavit and supplementary counter affidavit. The relevant provision, which has been relied upon by the learned counsel for the respondent no. 4-application, i. e. , Article 226 (3) of the constitution of India, runs as follows:-"art. 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 (I), 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 on 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 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. " ( 5 ) FROM reading the said provision, it appears that the application for vacating the stay has to be filed by a person against whom the copy of the petition or the document in support of the plea of such interim order has not been furnished and opportunity of hearing has not been given. A bare reading of the provision makes it clear that the party against whom the interim order has been passed without giving him opportunity of hearing, may make an application for vacating such order at the earliest possible point of time and not leisurely and with deliberate ease at any point of time. In that case, the Court has to dispose of the application within a period of two weeks from the date on which it is received. In that case, the Court has to dispose of the application within a period of two weeks from the date on which it is received. There is thus element of urgency in the provision. It is expected of a party against whom an interim order is passed, if he so intends to make an application for vacation of the same when he appears at the first instance for bringing his application for consequential automatic vacation of the order under Article 226 (3 ). A party cannot be allowed to take benefit of the said provision of urgent nature at any stage of litigation. If the party against whom the interim order is passed does not object to the same on his first appearance and does not file an application for vacating the interim order/say, though files his reply to contest the case on merit, the provision of automatic vacation of interim order as envisaged in Article 226 (3) shall not be available to him even if the application is not disposed of within two weeks from the date of its receipt or furnishing the copy to the other side, as the case may be. ( 6 ) IN the instant case, the respondent no. 4 appeared on 10-7-2003 and filed his counter affidavit. He did not file any application for vacating the interim order. The respondent No. 4-applicant, thus, did not complain any injury by the said interim order for more than a year of his appearance and coming to know about the order, rather accepted the same impliedly as he did not file an application for vacating the said order inspite of the liberty given by the Court to file an application for modification/clarification of the interim order. The respondent no. 4-applicant then filed supplementary counter affidavit on 9-9-2003, at that stage also he did not make any objection to the interim order and did not file any application. Thereafter, the was heard on the point of admission and by order dated 4-11-2003, the writ application was admitted for hearing. Even at that stage, the respondent No. 4- applicant did not object to the interim order and did not file any application for vacating the same. Thereafter, the was heard on the point of admission and by order dated 4-11-2003, the writ application was admitted for hearing. Even at that stage, the respondent No. 4- applicant did not object to the interim order and did not file any application for vacating the same. ( 7 ) IN my opinion, therefore the respondent No. 4-applicant cannot get advantage of the automatic vacation of interim order as envisaged in Article 226 (3) of the Constitution in the circumstances of this case discussed above and Accordingly, it is held that the interim order dated 6-5-2003 passed in this case has not been automatically vacated as being understood and claimed by the respondent No. 4-applicant. ( 8 ) SINCE the respondent No. 4-applicant has not pressed this application on merit, I have not gone into the merits of the grounds taken in this application. ( 9 ) THIS interlocutory application is, therefore, dismissed as not pressed with the abovementioned observations. --- *** --- .