Extent, Existence and Expiry of Interim Orders – A Judicial Enigma [Part I]

It is the plain and unqualified obligation of every person against, or in respect of whom an order is made by a court of competent jurisdiction, to obey it unless and until that order is discharged.

Romer L.J.,

Hadkinson v. Hadkinson¹

Disobedience of orders of a court strikes at the very root of the rule of law on which the judicial system rests. Judicial orders are bound to be obeyed at all costs. Howsoever grave the effect may be, is no answer for non-compliance of a judicial order. Judicial orders cannot be permitted to be circumvented.

J.S. Khehar, J.

Subrata Roy Sahara v. Union of India²

The present article delves into a subject of immense relevance for the judicial system of our country, with the ongoing debate on interpretation of interim orders regarding their extent, existence, and expiry after a particular passage of time. In other words, we would attempt to highlight how the question of duration and endurance of interim orders has been answered by the various courts, especially the constitutional courts of the country viz. (High Courts and the Supreme Court), when they were mentioned to be operative for a particular period/duration/time by the court passing the order granting interim relief.

As the analytical description would unfold, what will also be amusing to note is that the constitutional courts of the country have themselves left every corner of this issue ambiguous and ambivalent. It is highly desirable that the Supreme Court of India must step in and resolve the serious conundrum occasioned owing to mutually contradictory judicial verdicts of various High Courts. There is a sharp vertical cleavage of judicial opinion on the duration and expiry of interim orders, when they are passed for a fixed period/time.

The article shall be segregated into the following sub-topics:

1. Purpose and objective of an interim/interlocutory order by any court of law.

2. Classification of interim/interlocutory orders on the basis of their wordings.

3. Origins and applicability of the legal maxim – “actus curiae neminem gravabit”.

4. View of the Supreme Court of India.

5. Views of the High Courts favouring continuation of interim order in various contingencies.

6. Views of the High Courts against continuation of interim order, declaring their expiry date.

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Discussions under topics A to D shall be undertaken in the current part of the article whilst discussions under topics E to G shall be dealt with in Part II of the article

Purpose and objective of an interim/interlocutory order by any court of law

The roots and origins of the concept of interim/interlocutory order in the Indian context can be traced to the provisions of Order 39 Rules 1 to 3 CPC, which are the repository of powers to grant interim relief and temporary injunctions.

Upon perusal of Order 39 Rule 1 CPC, it would indicate that wherein any suit, it is proved by affidavit or otherwise (i) that any property in dispute in a suit is in danger of being wasted, damaged or alienated by any party to the suit, or wrongfully sold in execution of a decree; or (b) that the defendant threatens, or intends, to remove or dispose of the property with a view to defrauding the creditors; (c) that the defendant threatens to dispossess, the plaintiff or otherwise cause injury to the plaintiff in relation to any property in dispute in the suit; the court may grant an order of temporary injunction to restrain such acts.

It has now been well settled that before a court grants a temporary injunction, it needs to be satisfied that a person seeking an injunction has a prima facie case in his favour and that the balance of convenience and possibility of irreparable injury being caused also lies in his favour.

The word “prima facie case” apparently indicates something which at the first impression makes out a triable case. The term “prima facie case” should not be confused with the term “prima facie title” which has to be established at the trial upon permitting the parties to lead evidence. Thus, it means a substantial question has been raised, which upon first sight needs to be investigated and decided on merits.

The word “balance of convenience” denotes that the court must be satisfied that the comparative mischief and hardship which is likely to be caused to the person seeking an injunction is more than the inconvenience likely to be caused to the other party by granting such injunction.

The word “irreparable injury” on the other hand guides the court to be satisfied that the refusal to grant the injunction would result in such injury which cannot be compensated in terms of costs or otherwise and the person seeking injunction needs to be protected from the consequences of apprehended injury.

The aforesaid three ingredients have been noticed by the House of Lords in the celebrated case of American Cyanamid Co. v. Ethicon Ltd.³ The principles regarding grant of injunction as laid down by the Lord Diplock in the Cyanamid case⁴ can be summarised as under:

(1) The plaintiff must first satisfy the court that there is a serious issue to decide and that if the defendants were not restrained and the plaintiff won the action, damages at common law would be inadequate compensation for the plaintiff’s loss.

(2) The court, once satisfied with these matters will then consider whether the balance of convenience lies in favour of granting an injunction or not, that is, whether justice would be best served by an order of injunction.

(3) The court does not and cannot judge the merits of the parties’ respective cases and that any decision of justice will be taken in a state of uncertainty about the parties’ rights.

The Supreme Court of India has also followed the same principle as followed by the English courts primarily the three considerations mentioned above. In Colgate Palmolive (India) Ltd. v. Hindustan Lever Ltd.,⁵ the Supreme Court of India referred to the Cyanamid case⁶. It also relied upon the Indian precedents and succinctly enumerated the broad parameters that should govern the judicial discretion in the passing of interim/interlocutory/temporary orders by Indian courts. Vide para 24, the Supreme Court Bench, comprising B.N. Kirpal and U.C. Banerjee, JJ., held thus:

24. We, however, think it fit to note hereinbelow certain specific considerations in the matter of grant of the interlocutory injunction, the basic being non-expression of opinion as to the merits of the matter by the court, since the issue of grant of injunction, usually, is at the earliest possible stage so far as the time-frame is concerned. The other considerations which ought to weigh with the court hearing the application or petition for the grant of injunctions are as below:

(i) Extent of damages being an adequate remedy.

(ii) Protect the plaintiff’s interest for violation of his rights though, however, having regard to the injury that may be suffered by the defendants by reason therefor.

(iii) The court while dealing with the matter ought not to ignore the factum of the strength of one party’s case is stronger than the other’s.

(iv) No fixed rules or notions ought to be had in the matter of grant of the injunction but on the facts and circumstances of each case — the relief being kept flexible.

(v) The issue is to be looked at from the point of view as to whether on the refusal of the injunction the plaintiff would suffer irreparable loss and injury keeping in view the strength of the parties’ case.

(vi) Balance of convenience or inconvenience ought to be considered as an important requirement even if there is a serious question or prima facie case in support of the grant.

(vii) Whether the grant or refusal of the injunction will adversely affect the interest of the general public which can or cannot be compensated otherwise.

The authorities and precedents on principles governing grant of interim relief are innumerable. However, the above ones have been referred to broadly explain the factors that should govern grant of interim relief by any judicial/quasi-judicial court or a tribunal.

Necessarily, therefore, the exercise of passing of any interim order granting any interim relief by necessary implication is an exercise to be undertaken by the courts with due application of mind, preferably through speaking order. The Supreme Court has been consistently holding that interim orders cannot be granted on mere asking or as a matter of force, but only on consideration governing them (as explained above). There has to be an active display of judicial conscience and mental thinking in the process of passing of interim order in favour of any party.

The present article delves into the moot question of whether the effect of an interim order granted to any party must dissipate on procedural grounds, when the time expires. Whether, despite all the diligent efforts of the parties, when the courts are not able to decide on the vacation or withdrawal of interim relief so granted to any party, should the party be denied the fruits of a judicially considered and well-deliberated interim order is the question to be answered.

Classification of interim/interlocutory orders on the basis of their wordings

Even though it may be a singular term  “interlocutory orders”, however the content of these orders may bear different colours. As stated earlier, the grant of interim relief to any party in any proceeding is dependent upon a host of factors. The courts may while granting interim relief, bracket it with certain conditions or riders. The tenure, extent and duration of the interim orders may be limited by the court whilst granting interim relief. Generally, the court restricts the extent and duration of the interim orders in the following words:

(i) “in the meanwhile … during the pendency of the matter”;

(ii) “till the next date of hearing of the matter”;

(iii) “till the next date of listing”;

(iv) “list on (date) … till then interim order (as specified) to operate”; and

(v) “parties are directed to maintain status quo (or any other similar interim order) till further orders of this Court”.

The interim orders of varied wordings may be passed by the court, but each of them has a separate import about its extent and duration. It is the dispute about the interpretation of these interim orders only that has been keeping jurists and Judges puzzled alike, with no definite answer. A one line interim order may at times cascade into another bigger litigation if the stakes on either side are volatile, for protection of which only the interim order of the court was passed.

Origins applicability of the legal maxim – “actus curiae neminem gravabit” for extension and restoration of interlocutory orders

The maxim is founded upon justice and good sense; and affords a safe and certain guide for the administration of the law. In virtue of it where a case stands over for argument from term to term on account of the multiplicity of business in the court, or for judgment from the intricacy of the question, the party ought not to be prejudiced by that delay, but should be allowed to enter up his judgment retrospectively to meet the justice of the case; and therefore, if  one party  to  an  action  dies  during  a  curia  advisari vult,  judgment may be entered “nunc pro tunc”, for the delay is the act of the court, and therefore neither party should suffer for it.

Cases do however, occur, in which injury is caused by the act of a legal tribunal, as by the laches or mistake of its officers; and where, notwithstanding the maxim as to actus curiae, the injured party is altogether without redress.

The maxim referred to above was relied on, referred and applied for by the courts at UK as far back in the beginning of 19th century in the judgment of Pulteney v. Warren⁷, wherein Lord Eldon in the context of above maxim, observed as under:

“If there be a principle, upon which courts of justice ought to act without scruple, it is this; to relieve parties against that injustice occasioned by its own acts or oversights at the instance of the party, against whom the relief is sought. That proposition is broadly laid down in some of the cases.”

This view was followed subsequently by the House of Lords in East India Co. v. John Campion⁸. In another case of Rodger v. Comptoir d’Escompte de Paris⁹, the principle enshrined above in the Latin maxim was reiterated again in following lines:

… One of the first and highest duties of all courts is to take care that the act of the court does no injury to any of the suitors and when the expression “the act of the court” is used, it does not mean merely the act of the primary court, or of any intermediate court of appeal, but the act of the court as a whole from the lowest court which entertains jurisdiction over the matter up to the highest court which finally disposes of the case….

In addition to the above, first few judgments which affirmed and followed the doctrine of “actus curiae neminem gravabit” is Turner v. London and South-Western Railway Co.¹⁰ In this case, the plaintiff had died after the hearing, but before the court rendered its judgment. The court ordered that its judgment be entered “nunc pro tunc”, as of the day when the argument terminated, noting that this would not cause an injustice to the other party and that such a result was appropriate in a case in which the delay had resulted from an act of the court.

Thus in essence, the Latin maxim “actus curiae neminem gravabit”, means “an act of the court should prejudice no one”. At times, judicial proceedings or orders of the court may itself perpetuate injustice. The doctrine therefore allows courts to rectify and undo the wrongs committed to any party due to its own mistakes, shortcomings in judicial proceedings or judicial orders.

The Privy Council as far back as in Debi Bakhsh Singh v. Habib Shah¹¹ pointed out that an abuse of the process of the court may be committed by the court or by a party. Where a court employs a procedure in doing something, which it never intended to do and there is an abuse of the process of the court, it can always be corrected. Lord Shaw spoke for the Bench thus:

“Quite apart from Section 151, any court might have rightly considered itself to possess an inherent power to rectify the mistake which had been inadvertently made.”

Further, in another matter of The Bolivar¹², the Privy Council applying the doctrine further stated thus:

“Where substantial injustice would otherwise result, the court has, in Their Lordships’ opinion, an inherent power to set aside its own judgments of condemnation so as to let in bona fide claims by parties….”

In Jang Singh v. Brij Lal¹³, the Supreme Court of India in relation to the maxim “actus curiae neminem gravabit” observed as follows:

6. … There is no higher principle for the guidance of the court than the one that no act of courts should harm a litigant and it is the bounden duty of courts to see that if a person is harmed by a mistake of the court he should be restored to the position he would have occupied but for that mistake. This is aptly summed up in the maxim:

“actus curiae neminem gravabit”.

Courts have held in many judgments said that to own up any mistake when judicial satisfaction is reached, does not militate against its status or authority. Perhaps it would enhance both.

What would happen if the interim order applicable up to a particular date or any interim arrangement determined by the court does not get extended due to procedural impediments on the part of the court; or owing to omission on the part of its Registry. Whether an interlocutory order passed after due consideration of merits and application of judicial mind with due exercise of judicial conscience and discretion must disappear for the faults in the machineries working in the judicial system. Courts in India have applied the aforementioned doctrine of “actus curiae neminem gravabit” to restore the previously passed interlocutory orders that expired for no fault of the parties.

In Pradip Kumar Saha v. Rajesh Rajak¹⁴, the ADJ Court at Siliguri (W.B.) had passed an order whereby the prayer for extension of ad interim order of stay of the operation of the order was refused against which the matter travelled to the High Court. Previously, an ad interim order of injunction was passed on an application filed by the plaintiffs/opposite parties on 17-8-2015 restraining the defendant-petitioner from disturbing the peaceful possession of the plaintiff till 16-9-2015. This interim order was extended from time to time until the Order No. 16 passed in the said suit. But from Order No. 16 till Order No. 24 passed in the said suit, this order was not extended by the trial court. No order came to be passed for extension of interim order, when the matter travelled to the High Court on the question of existence and continuation of interim order when the parties had made diligent efforts. The High Court applying the doctrine of “actus curiae neminem gravabit”, held that act of the court should not cause any prejudice to the litigant and therefore continued the ad interim order granted earlier by the trial court till the final disposal of the pending applications for the extension of the interim relief. Vide para 1, the High Court applying the said doctrine observed thus:

1. … An ad interim order of injunction was passed on an application filed by the plaintiffs/opposite parties on 17-8-2015 restraining the defendant-petitioner from disturbing the peaceful possession of the plaintiff till 16-9-2015. It is not in dispute that such ad interim order of injunction was extended from time to time until the Order No. 16 passed in the said suit. There is no reflection after the said Order No. 16 till the Order No. 24 passed in the said suit that the said ex parte ad interim order of injunction was extended by the trial court. A serious dispute was raised before this Court over the filing of an application seeking extension of the said interim order on each date of listing. My attention is drawn to the orders recorded in the said suit wherefrom it appears that an application seeking extension of ad interim order was filed but there is no reflection that the court extended the said ad interim order of injunction. By an order dated 10-1-2018 the learned Judge in the trial court took up the matter and noticed that the ex parte ad interim order of injunction granted on 17-8-2015 has not been extended on and from 1-7-2016. The learned Judge was of the opinion that it was a mistake on the part of the court in not extending ad interim order of injunction and extended in the manner as if the said ad interim order of injunction was operative through out the proceeding. What can be seen from the tenet of the said order is that the learned Judge in the trial court was swayed by the fact that the act of the court should not cause any prejudice to the litigant. Such principle is well recognised and based on the legal maxim “actus curiae neminem gravabit”.

Vide para 5, the High Court held thus:

5. This Court, therefore, modifies the order dated 10-1-2018 in exercise of the power of superintendence to the extent that the ad interim order of injunction passed on 17-8-2015 is reimposed from the said date and to continue till the disposal of the injunction applications.

A somewhat similar situation arose before the Madras High Court in T. Gnanasambanthan v. Board of Governors¹⁵. In this case, the writ petition was filed challenging the order of discharge passed by the respondents. Through an interim order, the court stayed the operation of the impugned order of discharge. Against this order, a vacate stay petition was filed by the respondents which was not decided within 14 days from the date of filing. Consequently, the respondents issued an office order dated 30-10-2013 relieving the petitioner with effect from 30-10-2013 on the ground that the interim stay automatically got vacated due to Article 226(3) of the Constitution of India. The main issue was whether the stand taken by the respondents on the basis of Article 226(3) to the effect that the stay automatically got vacated is correct or not.

The court noted that due to fault on the part of its Registry and listing section, the application for vacation of interim order could not get listed. This was titled as “act of omission” on the part of the court, warranting invocation of “actus curiae neminem gravabit”. Holding that when the court or its executive machinery is at fault, then the parties should not suffer. Vide para 65, the Madras High Court held thus:

65. But unfortunately, none of the High Courts, whose decisions are relied upon by the respondents, has considered the question from the pedestal of the most fundamental principle of law, namely, that no one shall be prejudiced by an act of court (actus curiae neminem gravabit). An act can either be an act of omission or be an act of commission. The non-listing of an application for vacation of an interim order, if not due to the fault of any of the parties, but due to the fault of the Registry of the court, would fall under the category of “act of omission”. No law can be so absurd as to say that if the court is at fault, the parties shall suffer. I do not think that any case law is required to support the proposition that an act of court shall not prejudice a party.

Vide paras 74-75, the Madras High Court further held as follows:

74. … Take for instance a case, where an application for vacating the stay is taken up for hearing within two weeks of its presentation and the court reserves orders. If orders were not pronounced on or before the expiry of the 14th day from the date of filing of the vacate stay application, could it be said that the party, who obtained an interim stay, should still suffer, despite ensuring that the application is heard within two weeks. It is not within the control of any party to have his application or the opposite party’s application listed for hearing. Even if a party succeeds in getting the application listed within two weeks, it is not in his control to ensure that the application is heard before the expiry of two weeks. Even if a party succeeds in making the court hear the application for vacation of the interim order within two weeks, it is not in his control (especially these days) to ensure that it is disposed of within two weeks from the date of filing of the vacate stay application.

75. Therefore, an interpretation that would put a party, who is not at fault, to disastrous consequences, for the failure of an institution or for the happening of something that is beyond his control, is wholly unjustified. If a statutory provision imposes an obligation upon one party and makes the opposite party suffer for the consequences of non-fulfilment of the obligation cast therein, such a provision cannot be said to be mandatory. Unfortunately, none of the High Courts, whose decisions are relied upon by the respondents, has taken note of this basic difference between the person, on whom, an obligation is cast and the person, on whom, the consequences are made to fall under Article 226(3). Hence, with great respect, I am unable to agree with the views expressed by the other High Courts.

From the above judgments, it is clear that the doctrine of “actus curiae neminem gravabit”, can be rightly invoked to continue and restore interim orders that expired due to faults on the part of Registry or the executing machinery of the court. However, a neat and clear case has to be made out by the party pleading for applicability of the doctrine that it is entitled for restitution due to fault on the part of the court, meaning thereby that more often than not one can claim restitution if due diligence is proved on his part.

View of the Supreme Court of India on extent, expiry and duration of interim orders

Not many judgments are available of the Supreme Court on the issue of duration and existence of interlocutory orders. However, there are two judgments that have taken a strict view on their operability, while there are some others on the other end of the spectrum. The first one at hand is the judgment of Arjan Singh v. Punit Ahluwalia¹⁶. In this case, through the interim order dated 2-2-1996, Dr Bawa, one of the respondents, was restrained from transferring the property, which order was to remain in effect till 16-10-1996. An application for extension of the said interim order was filed on this date, but extension could not be granted since the Presiding Officer was on leave on 16-10-1996. Thereafter, the matter was transferred to another court and the interim order was neither extended nor vacated. Therefore, the main issue that arose was whether the order of injunction was operative, so as to attract the provisions of Order 39 Rule 2-A of the Code of Civil Procedure or invoking the inherent jurisdiction of the court under Section 151 thereof. The court held that if the order of injunction was operative up to a particular date, technically the order of injunction shall not remain operative thereafter. Thus, the owner of the land Dr Bawa and Defendant 2 Sanjeev Sharma could have entered into the compromise, to be treating the interim order to be not operative beyond the date it was so held to be. Vide paras 16-17, the Supreme Court held thus:

16. The learned trial Judge passed an interim order on 2-2-1996, which was periodically extended. Indisputably, by reason thereof, Dr Bawa was restrained from transferring the property. A similar order of injunction was passed in Sanjeev Sharma’s case which was made absolute on 28-5-1997. It is, however, again beyond any dispute that the said order of injunction continued from time to time. It was operative till 16-10-1996. It has been noticed by the learned trial Judge that an application for extension was filed. However, because the Presiding Officer was on leave on 16-10-1996 and later the matter was transferred to another court, the interim order was neither extended nor vacated.

17. Was the order of injunction operative so as to attract the provisions of Rule 2-A of Order 39 of the Code of Civil Procedure or invoking the inherent jurisdiction of the court under Section 151 thereof? The learned trial Judge opined that it was so because it was for the court to pass an appropriate order thereunder. The High Court, however, differed with the aforementioned finding of the learned trial Judge to hold that no order of injunction was operative. It, furthermore, held that any transaction carried out in violation of the order of the court is void; it would be a nullity. The decision of the High Court is based on the decisions of different High Courts including Pranakrushna v. Umakanta Panda¹⁷, Phani Bhusan Dey v. Sudhamoyee Roy¹⁸ and Harbalas v. State of Haryana¹⁹. We agree with the High Court on this issue. If the order of injunction was operative up to a particular date, technically the order of injunction shall not remain operative thereafter. The owner of the land Dr Bawa and Defendant 2 Sanjeev Sharma, thus, could have entered into the compromise. The effect thereof would be that the said deed of sale was not binding on the appellant. It would be hit by the doctrine of lis pendens, as adumbrated under Section 52 of the Transfer of Property Act. The said deed of sale would not come in the court’s way in passing a decree in favour of the appellant. Its validity or otherwise would not be necessary to be considered as the appellant is not bound thereby. Sanjeev Sharma and consequently Punit Ahluwalia would be deemed to be aware of the pendency of the suit. Even Section 19 of the Specific Relief Act will be attracted.

A similar issue arose thereafter in Ashok Kumar v. State of Haryana²⁰. The appellant landowners acquired the said lands in 1993 and raised certain construction thereupon. A notification was issued on 20-12-1996 for acquisition of the said lands by the State of Haryana. A suit was filed by the landowners in the Court of the Civil Judge, Senior Division, Panipat, questioning the validity of the said notification. On an application for grant of injunction filed by the appellants, an order of interim injunction was passed on 30-8-1997. The said interim order was extended from time to time. The matter was placed on 28-7-1998 on the ground that the Presiding Officer was to remain on leave on 29-7-1998. The matter was adjourned to 9-9-1998. However, the order of injunction was not extended. After some adjournments, the suit was dismissed for default on 19-8-2000. The main issue was whether the order of an interim injunction granted by the learned Civil Judge, Senior Division, Panipat, was operative till 9-9-1998 or 19-8-2000. The Supreme Court held that the interim order having been extended till a particular date, the contention raised by the respondents herein that they were under a bona fide belief that the injunction order would continue till it was vacated cannot be accepted. It was stated  that although in the earlier order dated 30-8-1997, the term “in the meantime” was used, which was repeated in order dated 24-9-1997, but in the subsequent orders beginning from 29-11-1997, the expression used was “till then”. Vide paras 11-12, the Supreme Court held thus:

11. The short question which arises for consideration in this appeal is as to whether the order of ad interim injunction granted by the learned Civil Judge, Senior Division, Panipat, was operative till 9-9-1998 or 19-8-2000. We have noticed hereinbefore the nature of the orders passed by the learned Civil Judge. Although in its order dated 30-8-1997, the learned Civil Judge, used the term “in the meantime”, which was repeated in its order dated 24-9-1997, but in the subsequent orders beginning from 29-11-1997, the expression used was “till then”.

12. The term of the order of the learned Judge, in our opinion, does not leave any manner of doubt whatsoever that the interim order was only extended from time to time. The interim order having been extended till a particular date, the contention raised by the respondents herein that they were under a bona fide belief that the injunction order would continue till it was vacated cannot be accepted.

From the above exposition, it is clear that a lot depends on the exact language of the interim order passed by the court. If the interim order passed by the court is intended to have a limited effect for a definite time, then in such circumstances, it cannot be held to possess an operation beyond its reach by presumptions. If one follows the view taken by the Supreme Court, then there is no warrant for the proposition, that unless an order of stay passed once even for the limited period is vacated by an express order or otherwise; the same would continue to operate.

However, till date, the Supreme Court of India has not dealt with or adjudicated any case, where arguments have been taken on the applicability of doctrine of “actus curiae neminem gravabit”. Both the judgments of Arjan Singh²¹ and Ashok Kumar²² were decided essentially on the facts of the case, without delving into the larger issue of applicability of the above Latin maxim. The argument always remains open for an aggrieved party to persuade the Supreme Court to take another view.

With this, the Part I of this article gets concluded. In the sequel to this part, the discussion shall veer around the sharp cleavage of judicial opinion amongst various High Courts on the subject. This cleavage of judicial opinion shows far more serious questions than it answers, requiring intervention by the Supreme Court of India at the earliest to solve one of the complex judicial enigmas which our legal fraternity faces every day.

The remaining discourse on the subject shall continue in Part II of this article to follow after a short while.

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