Th. Nalini Devi W/o Irengbam Jugeshwar Singh v. H. Surodhoni Devi, D/o (L) H. Guno Singh
2016-11-08
KH.NOBIN SINGH
body2016
DigiLaw.ai
JUDGMENT AND ORDER : 1. Heard Shri M. Devananda, the learned counsel appearing for the principal respondent / petitioner and Shri N. Kumarjit, the learned Senior Advocate assisted by Shri Jackson, the learned counsels appearing for the applicant/private respondent. 2. This is an application filed by the applicant / the private respondent herein praying for vacating / modifying or cancelling the interim order dated 16-09-2016 which was allowed to continue vide order dated 23-09-2016 passed by this court in W.P. (C) No. 696 of 2016. 3. On 26-10-2016, when this application came up for consideration, Shri N. Kumarjit, the learned senior counsel appearing for the applicant submitted that since the application had not been disposed of within two weeks from the date on which it is received or from the date on which a copy thereof is so furnished, the interim order dated 16-09-2016 stood vacated by operation of the provisions of Article 226(3) of the Constitution of India. However, this contention is vehemently opposed to by Shri M. Devananda, the learned counsel appearing for the principal respondent / petitioner on two points - (a) that the order dated 16-09-2016 passed by this court and in particular, the sentence “List the matter on 23-09-2016 for consideration of interim prayer and in the meantime, the impugned order dated 22-08-2016 shall remain suspended” is not an interim order and (b) that since the application is not filed by referring to the provisions of Article 226(3) of the Constitution of India, it cannot be held that the order dated 16-09-2016 passed by this court stood vacated. 4.
4. Since the issue as regards the applicability of the provisions of Article 226(3) of the Constitution of India to the facts of the present case and in particular, the application has arisen, the same are reproduced herein below for ready reference: “(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.]” The provisions of Article 226(3) which came to be substituted by way of amendment are plain, simple and unambiguous and in fact, this court is of the view that the same require no interpretation at all and to apply them, the following conditions are required to be fulfilled: (a) An interim order shall be made in a proceeding relating to a petition under Clause (1) against any party; (b) The interim order shall be made without furnishing a copy of the petition and documents in support thereof to such party; (c) The interim order shall be made without giving such a party an opportunity of being heard; (d) Such party against whom interim order is made, shall make an application for vacating such interim order with copy being furnished to the party in whose favour interim order has been passed; (e) The High Court shall dispose of the application within two weeks from the date on which it is received or from the date on which copy of such application is furnished; and (f) In the event of the said application being not disposed of by the High Court, on the expiry of the said period the interim order shall stand vacated.” 5.
As regards the first point, the term “interim order” appears to have not been defined in the Constitution of India and moreover, the learned counsel appearing for the principal respondent / petitioner has not brought to the notice of this court any provision of law from any of the statutes wherein the term “interim order” has been defined or any decision rendered by the Hon’ble Supreme Court as regards the term “interim order”. In the Black’s Law Dictionary, the term “interim order” is defined as the “one made in the meantime and until something is done”. If one looks at the meaning given in the Black’s Law Dictionary, it is seen that the term “interim order” means an order passed by the court during the pendency of the petition, suit etc. In the case of BPL LTD and ors. Vs. R. Sudhakar and ors., reported in (2004) 7 SCC 219 , the Hon’ble Supreme Court has observed that what an interim order means or what is its effect and / or consequences of it depend upon its terms. In case of some ambiguity or difficulty in understanding an interim order, which rarely happens, one has to understand the interim order looking to the prayer made for interim relief, facts of a given case and the terms of the interim order. In the present case, on 16-09-2016 this court, while issuing notice to the respondents, was pleased to direct that the matter be listed on 23-09-2016 for consideration of interim prayer and in the meantime, the impugned order shall remain suspended. The purpose of granting a week’s time was to enable the Government Advocate to seek instruction in the matter so that the application could be considered on 23-09-2016 for confirmation of the interim order. But on 23-09-2016, when the application was again listed, the learned Government Advocate prayed that some time be given to him for filing counter and accordingly, the matter was adjourned to 26-10-2016 with the direction that the interim order ought to continue. The said order dated 16-09-2016 was passed by this court by way of an interim measure in terms of the interim prayer made by the petitioner in her petition.
The said order dated 16-09-2016 was passed by this court by way of an interim measure in terms of the interim prayer made by the petitioner in her petition. In view of the decision of the Hon’ble Supreme Court referred to herein above, the order dated 16-09-2016 passed by this court cannot be said to be not an “interim order” and moreover, the term “interim order” mentioned in the Article 226(3) of the Constitution of India can be in any form by way of injunction or stay or any other manner. Therefore, the contention of the learned counsel appearing for the principal respondent / petitioner as regards the first point is not sustainable in law. 6. As regards the second point, it is seen from the materials available on record that the order dated 16-09-2016 was passed by this court in the absence of the applicant / private respondent and without any copy of the petition being served upon her by the principal respondent / petitioner. The application for vacation of the said order was filed on 07-10-2016 and a copy thereof was served on the counsel for the principal respondent / petitioner on the same day and thereafter, two weeks had lapsed on 21-10-2016. In such situation, the only thing that needs to be seen by this court is as to whether the conditions stipulated in Article 226(3) of the Constitution of India have been fulfilled or not and if yes, the consequence ought to follow automatically. It is not necessary for the applicant / private respondent to mention specifically that the application is being filed under the provisions of Article 226(3) of the Constitution of India. Moreover, there was no occasion for the applicant / private respondent to mention the provisions of Article 226(3) of the Constitution of India at the time of moving the application for the reason that the applicant/private respondent was not sure as to when her application would be considered by this court.
Moreover, there was no occasion for the applicant / private respondent to mention the provisions of Article 226(3) of the Constitution of India at the time of moving the application for the reason that the applicant/private respondent was not sure as to when her application would be considered by this court. Thus, this court is of the view that in the present case, all the conditions stipulated in Article 226(3) of the Constitution of India have been fulfilled with the result that the order dated 16-09-2016 stood vacated and therefore, no order is required to be passed in the application except reiterating the fact that the order dated 16- 09-2016 stood vacated by operation of the provisions of Article 226(3) of the Constitution of India and the application is disposed of accordingly.