Tuesday, September 14, 2010

‘Neutralise unfair edge gained by litigant from interim orders'-SC

‘Neutralise unfair edge gained by litigant from interim orders' -SC

The Supreme Court has deprecated the practice of litigants approaching court and obtaining interim orders, and later blaming it for delay if ultimately their case is dismissed.

A Bench of Justices P. Sathasivam and B.S. Chauhan called upon the courts to exercise caution while passing interim orders. “No person can suffer from an act of the court and in case an interim order has been passed and the petitioner takes advantage thereof, and ultimately [if] the petition stands dismissed, the interest of justice requires that any undeserved or unfair advantage gained by a party invoking the jurisdiction of the court must be neutralised.”

Justice Chauhan, writing the judgment, said: “No litigant can derive any benefit from the mere pendency of a case, as the interim order always merges into the final order to be passed, and if the case is ultimately dismissed, the interim order stands nullified automatically. A party cannot be allowed to take any benefit of his own wrongs by getting an interim order and thereafter blame the court.”

Undo the wrong

In such a situation, “the court is under an obligation to undo the wrong done to a party by the act of the court. Thus, any undeserved or unfair advantage gained by a party invoking the jurisdiction of the court must be neutralised, as the institution of litigation cannot be permitted to confer any advantage on a party by the delayed action of the court,” the Bench said.

“There is nothing wrong in the parties demanding to be placed in the same position in which they would have been had the court not intervened with its interim order, when at the end of the proceedings, the court pronounces its judicial verdict which does not match with and countenance its own interim verdict. The injury, if any, caused by the act of the court shall be undone and the gain which the party would have earned had it not been interdicted by the order of the court would be restored to or conferred on the party by suitably commanding the party liable to do so.”

The Bench made it clear that the court should also pass an order expressly neutralising the effect of all consequential orders passed in pursuance of the interim order. “Such express directions may be necessary to check the rising trend among the litigants to secure the relief as an interim measure and then avoid adjudication on merits.”

The Bench, quoting an earlier judgment, said: “Litigation may turn into a fruitful industry. Unscrupulous litigants may feel encouraged to approach the courts, persuading them to pass interlocutory orders favourable to them by making out a prima facie case when the issues are earlier to be heard and determined on [their] merits and if the concept of restitution is excluded from application to interim orders, then the litigant would stand to gain by swallowing the benefits yielding out of the interim order even though the battle has been lost at the end. This cannot be countenanced.”

In the instant case, Kalabharati Advertising was granted permission by the Municipal Corporation of Greater Mumbai to put up a hoarding in front of a cooperative housing society. On a public interest writ petition, the Bombay High Court passed interim directions which the company complied with. However, even before the final order was passed, the hoarding was removed by the Corporation at the instance of the petitioner despite agreements between the parties.

Kalabharati Advertising, having failed to get relief in the High Court, moved the Supreme Court against the High Court order and the consequent order passed by the Corporation. The Bench allowed the appeal.



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