Thursday, 31 March 2016

Whether High court can grant exparte interim order without admitting appeal?

 Submission of the learned senior counsel for the
appellant is that Order XLI Rule 5 confers jurisdiction on
the High Court while dealing with an appeal under Section
100 CPC to pass an ex parte order and such an order can
be passed deferring formulation of question of law in grave
situations. Be it stated, for passing an ex parte order the
Court has to keep in mind the postulates provided under
sub-rule (3) of Rule 5 of Order XLI. It has to be made clear
that the Court for the purpose of passing an ex parte order
is obligated to keep in view the language employed under
Section 100 CPC. It is because formulation of substantial
question of law enables the High Court to entertain an
appeal and thereafter proceed to pass an order and at that
juncture, needless to say, the Court has the jurisdiction to
pass an interim order subject to the language employed in
Order XLI Rule 5(3). It is clear as day that the High Court
cannot admit a second appeal without examining whether it
raises any substantial question of law for admission and
thereafter, it is obliged to formulate the substantial question
of law. Solely because the Court has the jurisdiction to
pass an ex parte order, it does not empower it not to
formulate the substantial question of law for the purpose of
admission, defer the date of admission and pass an order of
stay or grant an interim relief. That is not the scheme of
CPC after its amendment in 1976 and that is not the tenor
of precedents of this Court and it has been clearly so stated
in Ram Phal (supra). Therefore, the High Court has
rectified its mistake by vacating the order passed in IA No.
1/2015 and it is the correct approach adopted by the High
Court. Thus, the impugned order is absolutely impregnable.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.3190 OF 2016
(Arising out of S.L.P. (Civil) No. 6662 of 2016)
Raghavendra Swamy Mutt …Appellant
Versus
Uttaradi Mutt ...Respondent
Dated;March 30, 2016.

The present appeal, by special leave, assails the order
dated 11.02.2016 passed by the learned Single Judge of the
High Court of Karnataka at Dharwad in I.A. No.1 of 2016 in
RSA No.100446 of 2015 whereby he has vacated the interim
order dated 16.12.2015 passed in I.A. No.1 of 2015.
2. The facts for the purpose of adjudication of the present
appeal need to be stated in brief. The respondent, Uttaradi
Mutt, filed O.S. No.193/1992 in the Court of Civil Judge,
Koppal but in due course the said suit was transferred to
the Court of Additional Civil Judge, Gangavati and was
registered as O.S. No.74/2010. The suit was filed by the
plaintiff-respondent for the relief(s) for perpetual injunction
for restraining the defendant-Mutt, its agents, servants,
devotees, etc., from entering upon the suit schedule
property or interfering with its possession and enjoyment of
the suit property and/or interfering or disturbing with the
performance of annual “Aradhana” of His Holiness Sri
Padmanabha Teertharu, Sri Kavindra Teertharu and Sri
Vageesha Teertharu. The suit preferred by the plaintiff was
dismissed.
3. The judgment and decree passed in the suit was
assailed before the Principal Civil Judge, Senior Division,
Gangavati and eventually by virtue of the order passed by
this Court in Special Leave Petition (Civil) No. 20346 of
2014, it stood transferred to the Court of Civil Judge, Senior
Division, Dharwad and numbered as R.A. No.123/2014.
The first appellate Court allowed the appeal in part. The
appellate Court restrained the present appellant from
interfering with the plaintiff/respondent Mutt's possession
and enjoyment of suit property subject to the right of thePage 3
3
defendant Mutt to perform Adradhanas and Poojas of the
Vrindavanas at Navavrindavanagatti.
4. After the appeal was disposed of, the respondent filed
execution petition, E.P. No.122/2015 before the Principal
Civil Judge, Junior Division, Gangavati. The executing
court passed certain orders on 10.12.2015. In the
meantime, the appellant, being grieved by the order in the
Regular Appeal, had preferred RSA No.100446/2015. As
the order passed by the executing court affected certain
rights of the appellant, it filed IA No.1 of 2015 seeking
temporary injunction against the respondent. Be it stated,
the respondent had filed a caveat which was defective but it
was allowed to represent through the counsel when the IA
No.1 of 2015 was argued. As is discernible from the
narration of facts, the executing court had directed the
Deputy Superintendent of Police, Gangavati to give police
protection to the decree-holder for possession and
enjoyment of the suit scheduled property and preventing
the judgment-debtor from trespassing into the suit property
violating the decree in RA No.123/2014.
5. When the matter stood thus, IA No.1 of 2015 wasPage 4
4
taken up by the High Court. The learned Single Judge,
while considering the interlocutory application for
injunction, passed the following order:-
“List this matter on 20.01.2016 for filing of
objections to I.A.1/2015 and 2/15. In the
meanwhile, registry to secure the LCR from both
the courts below. The same should reach this
court on or before 16.01.2016. However, it is
made clear that the appellant, who is defendant
in O.S., and respondent who is plaintiff in the
O.S., shall have their right to perform pooja on
regular basis without staking claim with respect
to disputed land, which shall be subject to out
come of this appeal.”
6. As is manifest, the respondent filed objections to I.A.
No.1/2015 and also filed I.A. No.1/2016 for vacation of the
interim order. I.A. No.1/2016 was taken up by the learned
Single Judge who referred to Order XXXIX Rule 3-A of the
Code of Civil Procedure (CPC), the authority in
A. Venkatasubbiah Naidu v. S. Chellappan & others1
,
noted the contentions advanced by the learned counsel for
the parties, adverted to the litigations that had been taken
recourse to by both sides, acquainted itself with the earlier
order passed by the High Court and came to hold thus :-
“On a reading of the aforesaid order it becomes
1 AIR 2000 SC 3032Page 5
5
clear that the interim application filed by the
appellant along with the appeal before this Court
had to be considered independently and on its
own merits. But, in the instant case what has
happened is that this Court, without issuing
notice to the respondent in the second appeal has
granted an interim order which is to be in
operation till the end of the appeal. It is not
known as to whether the appellant had satisfied
the Court on any substantial question of law that
would arise in the matter as the matter was listed
for admission.”
7. After so stating, the High Court opined that the
principle stated in Order XXXIX Rule 3 had not been
followed, notice to the respondent had not been issued
although permission was granted to the counsel to raise
objections and further delved into the distinction between
an appeal under Section 100 CPC and the regular first
appeal, and in the ultimate eventuate, concluded thus:-
“If notice to respondent was to be dispensed with
prior to grant of an ad interim order till the
conclusion of the second appeal then reasons for
doing so had to be recorded. But the interim
order which is sought to be vacated is bereft of
any reason. I am of the view that on this short
ground alone order dated 16.12.2015 has to be
vacated as there are procedural irregularities in
the grant of the ad interim order. Secondly, it is
also not known at this point of time as to
whether, the order passed by this Court in M.F.A.
no.21690/2012 was brought to the notice of this
Court by the appellant or not before the interimPage 6
6
order was passed.
In view of the above, the application I.A.
no.1/2016 for vacating interim order dated
16.12.2015 is allowed. Order dated 16.12.2015
stands vacated. The appellant to seek any date
for admission of the matter and after hearing
learned counsel for the appellant on admission of
the appeal, this Court to consider I.A. no.1/2015
afresh. All contentions on both sides on I.A.
No.1/2015 are kept open.”
8. When the matter was taken up on 18.03.2016, this
Court, after hearing the learned counsel for the parties, had
passed the following order :-
“Having heard learned counsel for the parties, as
an interim measure, it is directed that the
petitioner, Sri Raghavendra Swamy Mutt, is
permitted to do 'aradhana' from 24th to 26th
March, 2016 and not a day prior to that or
beyond that. Needless to say, no equity shall be
claimed by the petitioner on the basis of this
order. That apart, the present arrangement shall
be restricted to this occasion only.”
9. We had, at that time, blissfully perceived being under
the impression that “Aradhana” is a yearly event, that
request to the High Court to dispose of the second appeal
could sub-serve the cause of justice, but the learned
counsel for the parties apprised us that it is a monthly
affair. Ergo, we have heard Dr. Rajiv Dhawan and Mr. R.Page 7
7
Venkataramani, learned senior counsel for the appellant
and Mr. Fali S. Nariman, learned senior counsel for the
respondent.
10. It is submitted by Dr. Dhawan and
Mr. Venkataramani, learned senior counsel, that the High
Court was not justified in vacating the order of stay on the
grounds it has done, for the principle of Order XXXIX Rule
3-A is not applicable when the appellant had prayed for stay
and passing of interim orders. It is urged by them that the
respondent had entered caveat which was defective in
nature but it had participated in the hearing and, therefore,
the interim order could not be regarded as an ex parte
order. Learned senior counsel appearing for the appellant
would further submit that when the judgment and decree
passed in the regular appeal is demonstrably
unsustainable, the High Court should have maintained the
order of stay and finally disposed of I.A. No.1/2015 and
should not have entertained I.A. No.1/2016 seeking
vacation of the order of stay. It has been highlighted that
the language employed in Section 100 CPC though
stipulates that appeal is to be entertained on substantialPage 8
8
question of law involved in the case, it does not bar the High
Court to pass an ad interim order in a grave situation and
that is the basic purport of Order XLI Rule 5 and Order XLII
CPC.
11. Combating the aforesaid submissions, it is urged by
Mr. Nariman, learned senior counsel appearing for the
respondent that the interim order passed by the High Court
in I.A. No.1/2015 from all angles is an ex parte order, for
adjournment was sought on behalf of respondent to argue
the matter but the same was declined. Learned senior
counsel would propone that passing an order of stay or
issuing an order of injunction in a second appeal is quite
different than an interim order passed in a regular first
appeal preferred under Section 96 CPC. It is canvassed by
him that formulation of substantial question of law by the
Court under Section 100 CPC is an imperative to proceed
with the appeal and the Court cannot proceed unless the
condition precedent is satisfied and in such a situation, the
question of passing any interim order or granting any
interim relief does not arise. Mr. Nariman has drawn
support from a two-Judge Bench decision in Ram Phal v.Page 9
9
Banarasi & Ors.2
.
12. To appreciate the controversy, it is seemly to refer to
Section 100 CPC. It reads as follows:-
“Section 100. Second appeal.—
(1) Save as otherwise expressly provided in the
body of this Code or by any other law for the time
being in force, an appeal shall lie to the High
Court from every decree passed in appeal by any
Court subordinate to the High Court, if the High
Court is satisfied that the case involves a substantial
question of law.
(2) An appeal may lie under this section from an
appellate decree passed ex-parte.
(3) In an appeal under this section, the memorandum
of appeal shall precisely state the substantial
question of law involved in the appeal.
(4) Where the High Court is satisfied that a substantial
question of law is involved in any case, it
shall formulate that question.
(5) The appeal shall be heard on the question so
formulated and the respondent shall, at the hearing
of the appeal, be allowed to argue that the
case does not involve such question :
Provided that nothing in this sub-section shall be
deemed to take away or abridge the power of the
Court to hear, for reasons to be recorded, the appeal
on any other substantial question of law, not
formulated by it, if it is satisfied that the case involves
such question.”
13. Section 101 CPC reads as under:-
2 (2003) 11 SCC 762Page 10
10
“Section 101. Second appeal on no other
grounds.—No second appeal shall lie except on
the ground mentioned in section 100.”
14. A plain reading of Section 100 CPC makes it explicit
that the High Court can entertain a second appeal if it is
satisfied that the appeal involves a substantial question of
law. More than a decade and a half back, in Ishwar Dass
Jain v. Sohan Lal3
 it has been ruled that after the 1976
Amendment, it is essential for the High Court to formulate a
substantial question of law and it is not permissible to
reverse the judgment of the first appellate court without
doing so.
15. In Roop Singh v. Ram Singh4
 the Court had to say
thus:-
“It is to be reiterated that under Section 100 CPC
jurisdiction of the High Court to entertain a second
appeal is confined only to such appeals
which involve a substantial question of law and it
does not confer any jurisdiction on the High
Court to interfere with pure questions of fact
while exercising its jurisdiction under Section
100 CPC.”
16. In Municipal Committee, Hoshiarpur v. Punjab SEB
3 (2000) 1 SCC 434
4 (2000) 3 SCC 708Page 11
11
& Others5
 it has been categorically laid down that the
existence of a substantial question of law is a condition
precedent for entertaining the second appeal and on failure
to do so, the judgment rendered by the High Court is
unsustainable. It has been clearly stated that existence of a
substantial question of law is the sine qua non for the
exercise of jurisdiction under the provisions of Section 100
CPC.
17. In Umerkhan v. Bismillabi alias Babulal Shaikh
and others6
 a two-Judge Bench was constrained to
ingeminate the legal position thus:-
“In our view, the very jurisdiction of the High
Court in hearing a second appeal is founded on
the formulation of a substantial question of law.
The judgment of the High Court is rendered
patently illegal, if a second appeal is heard and
judgment and decree appealed against is reversed
without formulating a substantial question of
law. The second appellate jurisdiction of the High
Court under Section 100 is not akin to the appellate
jurisdiction under Section 96 of the Code; it
is restricted to such substantial question or
questions of law that may arise from the judgment
and decree appealed against. As a matter of
law, a second appeal is entertainable by the High
Court only upon its satisfaction that a substantial
question of law is involved in the matter and
its formulation thereof. Section 100 of the Code
5 (2010) 13 SCC 216
6 (2011) 9 SCC 684Page 12
12
provides that the second appeal shall be heard on
the question so formulated. It is, however, open
to the High Court to reframe substantial question
of law or frame substantial question of law afresh
or hold that no substantial question of law is involved
at the time of hearing the second appeal
but reversal of the judgment and decree passed
in appeal by a court subordinate to it in exercise
of jurisdiction under Section 100 of the Code is
impermissible without formulating substantial
question of law and a decision on such question.”
18. In the instant case, the High Court has not yet
admitted the matter. It is not in dispute that no substantial
question of law has been formulated as it could not have
been when the appeal has not been admitted. We say so,
as appeal under Section 100 CPC is required to be admitted
only on substantial question/questions of law. It cannot be
formal admission like an appeal under Section 96 CPC.
That is the fundamental imperative. It is peremptory in
character, and that makes the principle absolutely cardinal.
The issue that arises for consideration is; whether the High
Court without admitting the second appeal could have
entertained IA No. 1/2015 which was filed seeking interim
relief. In Ram Phal (supra), from which Mr. Nariman,
learned senior counsel has drawn immense inspiration, the
two-Judge Bench was dealing with a case where the HighPage 13
13
Court had granted an interim order by staying the
execution of the decree but had not framed the substantial
question of law. In that context, the Court held:-
“… However, the High Court granted interim order
by staying the execution of the decree. It is
against the said order granting interim relief the
respondent in the second appeal has preferred
this appeal. This Court, on a number of occasions,
has repeatedly held that the High Court
acquires jurisdiction to decide the second appeal
or deal with the second appeal on merits only
when it frames a substantial question of law as
required to be framed under Section 100 of the
Civil Procedure Code. In the present case, what
we find is that the High Court granted interim order
and thereafter fixed the matter for framing of
question of law on a subsequent date. This was
not the way to deal with the matter as contemplated
under Section 100 CPC. The High Court is
required to frame the question of law first and
thereafter deal with the matter. Since the High
Court dealt with the matter contrary to the mandate
enshrined under Section 100 CPC, the impugned
order deserves to be set aside.”
19. To meet the reasoning in the aforequoted passage,
Dr. Dhawan and Mr. Venkataramani with resolute
perseverance submitted that the decision in Ram Phal
(supra) is distinguishable as it does not take note of Order
XLI Rule 5 and Order XLII Rule 1 CPC.
20. Order XLI Rule 5 reads as follows:-Page 14
14
“5. Stay by appellate court.—(1) An appeal
shall not operate as a stay of proceedings under a
decree or order appealed from except so far as the
appellate court may order, nor shall execution of
a decree be stayed by reason only of an appeal
having been preferred from the decree; but the
appellate court may for sufficient cause order
stay of execution of such decree.
Explanation : An order by the Appellate Court for the stay of execution of the
decree shall be effective from the date of the communication of such order to
the court of first instance, but an affidavit sworn by the appellant, based on
his personal knowledge, stating that an order for the stay of execution of the
decree has been made by the Appellate Court shall, pending the receipt from
the Appellate Court of the order for the stay of execution or any order to the
contrary, be acted upon by the court of first instance.
(2) Stay by court which passed the decree.—
Where an application is made for stay of execution
of an appealable decree before the expiration
of the time allowed for appealing therefrom, the
court which passed the decree may on sufficient
cause being shown order the execution to be
stayed.
(3) No order for stay of execution shall be made
under sub-rule (1) or sub-rule (2) unless the
court making it is satisfied—
(a) that substantial loss may result to the
party applying for stay of execution unless the order
is made;
(b) that the application has been made without
unreasonable delay; and
(c) that security has been given by the applicant
for the due performance of such decree or
order as may ultimately be binding upon him.
(4) Subject to the provisions of sub-rule (3), the
court may make an ex parte order for stay of execution
pending the hearing of the application.Page 15
15
(5) Notwithstanding anything contained in the
foregoing sub-rules, where the appellant fails to
make the deposit or furnish the security specified
in sub-rule (3) of Rule 1, the court shall not make
an order staying the execution of the decree.”
21. Order XLII Rule 1 that occurs under the Heading
“Appeals From Appellate Decrees” is as follows:-
“1. Procedure.— The rules of Order XLI shall
apply, so far as may be, to appeals from appellate
decrees.”
22. In this context, it is useful to refer to Order XLII Rule 2
which has been inserted by Act 104 of 1976 with effect from
01.02.1977. It provides as under:-
“2. Power of court to direct that the appeal
be heard on the question formulated by
it.— At the time of making an order under rule
11 of Order XLI for the hearing of a second appeal,
the court shall formulate the substantial
question of law as required by section 100, and
in doing so, the court may direct that the second
appeal be heard on the question so formulated
and it shall not be open to the appellant
to urge any other ground in the appeal without
the leave of the court, given in accordance with
the provision of section 100.”
23. Submission of the learned senior counsel for the
appellant is that Order XLI Rule 5 confers jurisdiction on
the High Court while dealing with an appeal under Section
100 CPC to pass an ex parte order and such an order can
be passed deferring formulation of question of law in grave
situations. Be it stated, for passing an ex parte order the
Court has to keep in mind the postulates provided under
sub-rule (3) of Rule 5 of Order XLI. It has to be made clear
that the Court for the purpose of passing an ex parte order
is obligated to keep in view the language employed under
Section 100 CPC. It is because formulation of substantial
question of law enables the High Court to entertain an
appeal and thereafter proceed to pass an order and at that
juncture, needless to say, the Court has the jurisdiction to
pass an interim order subject to the language employed in
Order XLI Rule 5(3). It is clear as day that the High Court
cannot admit a second appeal without examining whether it
raises any substantial question of law for admission and
thereafter, it is obliged to formulate the substantial question
of law. Solely because the Court has the jurisdiction to
pass an ex parte order, it does not empower it not to
formulate the substantial question of law for the purpose of
admission, defer the date of admission and pass an order of
stay or grant an interim relief. That is not the scheme of
CPC after its amendment in 1976 and that is not the tenor
of precedents of this Court and it has been clearly so stated
in Ram Phal (supra). Therefore, the High Court has
rectified its mistake by vacating the order passed in IA No.
1/2015 and it is the correct approach adopted by the High
Court. Thus, the impugned order is absolutely impregnable.
24. Having so concluded, we would have proceeded to
record dismissal of the appeal. But in the obtaining facts
and circumstances, we request the High Court to take up
the second appeal for admission and, if it finds that there is
a substantial question of law involved, proceed accordingly
and deal with IA No. 1/2015 as required in law. Needless to
say, the interim order passed by this Court on earlier
occasion should not be construed as an expression of any
opinion from any count. It was a pure and simple ad interim
arrangement.
25. Resultantly, the appeal, being sans substance, stands
dismissed with no order as to costs.Page 18
18
...............................J.
 [Dipak Misra]
...............................J.
 [Shiva Kirti Singh]
New Delhi.
March 30, 2016.
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