published in http://judis.nic.in/supremecourt/imgst.aspx?filename=40571
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 5499 OF 2013
(Arising out of SLP (C) No. 12909 of 2010)
M/s. Hotel Queen Road Pvt. Ltd. & Ors. …APPELLANTS
Mr. Ram Parshotam Mittal & Ors. ….RESPONDENTS
S.L.P.(C) NO. CC No.20730 OF 2009
1 J U D G M E N T
1 ANIL R. DAVE, J.
1. Leave granted.
2. Though the present litigation has a chequered history, we do not
propose to go into the details of the litigation for the reason that
by virtue of the impugned order dated 20th April, 2010 passed in FAO
(OS) 349 of 2009 by the High Court of Delhi, the appellants i.e. the
present respondents had been permitted to withdraw the said appeal.
3. It appears that the appeal was substantially heard by the High Court
but as the High Court was not persuaded to grant any relief to the
appellants therein, the appeal was withdrawn so as to avail
alternative remedy available to the appellants.
4. The appeal was permitted to be withdrawn. In normal circumstances,
the present appellants, who were the respondents in the said appeal,
should not have been aggrieved by withdrawal of the appeal but they
are aggrieved because of certain observations made by the High Court
while permitting withdrawal of the appeal. The said observations,
which have been objected to, are reproduced hereinbelow :
“…All that we wish to observe is what we have said earlier, that the
impugned order does, in fact, partake of a prima facie finding.
Nothing in these Orders shall preclude or prevent either of the
parties to make legal submissions before appropriate Forums.
On 3.3.2010, we had restrained the Respondent from alienating,
selling or creating any third party interest in the Rights issue dated
30.07.2009. When we had passed these Orders, we were desirous only to
maintain status quo. We clarify that it was not passed at that stage,
weighing the respective strength of the cases. In our view, we think
it appropriate and expedient to extend the interim orders upto
5. It was mainly submitted that no such observation could have been made
by the Court while permitting withdrawal of the appeal and the interim
relief which had been granted earlier in the appeal should not have
been continued even after withdrawal or disposal of the said appeal.
It is clear from the aforestated order that the interim relief which
had been granted during the pendency of the appeal had been extended
till 10th May, 2010.
6. The parties have been referred to hereinbelow as they had been arrayed
before the Division Bench of the High Court.
7. So far as the observations made in the impugned order with regard to
the findings of the learned single Judge are concerned, we are of the
view that the said observations cannot be said to be incorrect.
8. Upon perusal of the impugned order, we find that while seeking leave
to withdraw the appeal, a request was made by the learned counsel
appearing for the appellants, which has been recorded by the High
Court as under:
“He seeks leave to withdraw the Appeal with a clarification that the
observation and decision contained in the impugned order should not
influence the mind of either of the aforementioned Judicial Forums.”
9. With regard to the aforestated request made on behalf of the
appellants in relation to withdrawal of appeal, the High Court
observed as under:-
“Since the Appeal has been substantially heard, we are not persuaded
to make any observation as prayed for by the Appellant. We shall only
state that what is palpable from the legal position that the views and
decisions contained in the impugned order are perforce of a prima
10. Thus, upon reading the impugned order, the High Court did not ask the
authority, which was to be approached by the appellants, that the
observations made by the learned single Judge should be ignored. The
order of the learned single Judge was to be challenged by the
appellants before another forum and therefore, the Division Bench did
not state anything on the merits of the order passed by the learned
single Judge. In our opinion, the Division Bench had made innocuous
observations which cannot be said to be unjust or improper.
11. We have heard the learned counsel appearing for both sides and have
also considered the judgments cited by them.
12. So far as the direction with regard to continuation of the interim
relief upto 10th May, 2010 is concerned, the learned counsel appearing
for the appellants had submitted that upon disposal of the appeal, the
High Court had become functus officio and therefore, the High Court
ought not to have extended the interim relief upto 10th May, 2010
especially when the appeal had been withdrawn on 20th April, 2010.
13. The learned counsel appearing for the appellants had relied upon
certain judgments of this Court to the effect that upon final disposal
of a case, the court becomes functus officio and therefore, the court
should not extend interim relief. The learned counsel had relied upon
the observations made in para 24 of the judgment delivered in the case
of Ajay Mohan and Others v. H.N. Rai and Others (2008) 2 SCC 507,
which reads as under :
“24. The order of the City Civil Court dated 13-10-2006 may be bad but
then it was required to be set aside by the court of appeal. An
appeal had been preferred by the appellants thereagainst but the same
had been withdrawn. The said order dated 13-10-2006, therefore,
attained finality. The High Court, while allowing the appellant to
withdraw the appeal, no doubt, passed an order of status quo for a
period of two weeks in terms of its order dated 23-11-2006 but no
reason therefor had been assigned. It ex facie had no jurisdiction to
pass such an interim order. Once the appeal was permitted to be
withdrawn, the Court became functus officio. It did not hear the
parties on merit. It had not assigned any reason in support thereof.
Ordinarily, a court, while allowing a party to withdraw an appeal,
could not have granted a further relief. (See G.E. Power Controls
India v. S. Lakshmipathy.)
14. On the basis of the aforestated contents of para 24 in the case of
Ajay Mohan (supra), it had been submitted that upon withdrawal of the
appeal, the High Court should not have extended the interim relief
without assigning any reason, especially when the High Court had not
heard the parties on merits.
15. On the other hand, it had been submitted by the learned counsel
appearing for the respondents that in the interest of justice the
court has inherent power to continue interim relief even after
disposal of a case. So as to substantiate the aforesaid submission,
the learned counsel appearing for the respondents had relied upon the
judgment delivered in Padam Sen and Another v. The State of Uttar
Pradesh 1961(1) S.C.R. 884.
16. Similar issue had arisen in the case of The State of Orissa v. Madan
Gopal Rungta A.I.R. (39) 1952 S.C.12. A five-Judge Bench had observed
in the said judgment that:-
“…In our opinion, Art. 226 cannot be used for the purpose of giving
interim relief as the only and final relief on the application as the
High Court has purported to do. The directions have been given here
only to circumvent the provisions of S. 80, Civil P.C., and in our
opinion that is not within the scope of Art.226. An interim relief
can be granted only in aid of and as ancillary to the main relief
which may be available to the party on final determination of his
rights in a suit or proceeding. If the Court was of opinion that
there was no other convenient or adequate remedy open to the
petitioners, it might have proceeded to investigate the case on its
merits and come to a decision as to whether the petitioners succeeded
in establishing that there was an infringement of any of their legal
rights which entitled them to a writ of mandamus or any other
directions of a like nature; and pending such determination it might
have made a suitable interim order for maintaining the status quo
ante. But when the Court declined to decide on the rights of the
parties and expressly held that they should be investigated more
properly in a civil suit, it could not, for the purpose of
facilitating the institution of such suit, issue directions in the
nature of temporary injunctions, under Art.226 of the Constitution.
In our opinion, the language of Art.226 does not permit such an
action. On that short ground, the judgment of the Orissa High Court
under appeal cannot be upheld.”
17. In view of the aforestated judgments, it is very clear that if a
petition is not maintainable and is ultimately withdrawn, the court
should not continue interim relief for a period beyond withdrawal of
the writ petition. However, the aforestated observation would not
apply to a case where the matter is heard on merits and after
considering the facts of the case the court permits withdrawal of the
case. In such a case, the court is at liberty to extend the interim
relief or can grant interim relief for a limited period after
recording reasons for the same.
18. In view of the facts of the case, in our opinion, the High Court was
not in error while extending the interim relief for some time while
permitting withdrawal of the appeal as the High Court has also
recorded the reasons for which the interim relief was extended till
19. In view of the aforestated legal position, in our opinion, the High
Court did not commit any error while extending the interim relief
especially when the matter was heard on merits by the court and only
to facilitate the appellants therein, the High Court had permitted
withdrawal of appeal.
20. In the circumstances, we dismiss the appeal with no order as to costs.
Interim relief which had been granted earlier by this Court stands
S.L.P. (C) No. (CC No.20730) of 2009
1. In view of the fact that FAO (OS) No.349 of 2009 had been permitted
to be withdrawn by the subsequent order passed by the High Court of Delhi
at New Delhi on 20th April, 2010, the special leave petition does not
survive as the impugned order has already been withdrawn. The special
leave petition is dismissed as infructuous.
(ANIL R. DAVE)
July 16, 2013
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