Dismissed

Bidhi Chand v. State of Hp and Others

Himachal Pradesh HC10 Jul 2024CRMMO/77/2020

Case brief

AI extract

What is this about?

The Court dismissed a petition under Section 482 CrPC challenging a trial court judgment. The stay order was ad-interim and lapsed when not extended. The Court held the petitioner could not benefit from his own delay and the petition became infructuous as the final matter was disposed of.

What did the court decide?

The petition was dismissed as infructuous since the final order was passed and the stay had lapsed.

Bidhi Chand Vs State of Hp and Others — Civil Procedure and Limitation | Himachal Pradesh HC (2024)

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2024:HHC:4828

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IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

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Cr. MMO No.77 of 2020 Reserved on: 01.07.2024 Date of Decision: 10.07.2024.

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Bidhi Chand ...Petitioner Versus State of H.P. & Ors. ...Respondents

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Coram

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Hon’ble Mr Justice Rakesh Kainthla , Judge.

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Whether approved for reporting?¹ Yes

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For the Petitioner	:	Mr. Nitin Thakur, Advocate.
For the Respondents	:	Mr. Prashant Sen, Deputy Advocate General for respondent No.1/State.
		Mr. Bhairav Gupta, Advocate, for Respondents No.2 to 8.

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Rakesh Kainthla, Judge

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It was submitted that this Court returned the record on 10.11.2023 and now the matter has been decided by the learned trial Court which is impermissible because the Court had ordered on 04.02.2020 that the further proceedings pending before the

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learned trial Court shall remain stayed. The order was not vacated Whether reporters of Local Papers may be allowed to see the judgment? Yes.

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and the learned trial Court was incompetent to proceed with the matter; hence, it was prayed that the final order passed by the learned trial Court be set aside and the petition be heard on merits.

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Mr. Prashant Sen, learned Deputy Advocate General for respondent No.1-State submitted that the final order has not been challenged and this plea will be available to the petitioner in the further proceedings initiated against the final order. The jurisdiction under Section 482 of Cr.PC is extraordinary and should not be exercised in the present situation. Hence, he prayed that the present petition be dismissed.

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Mr. Bhairav Gupta, learned counsel for respondents No.2 to 8 supported the submissions of learned counsel for the petitioner.

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A perusal of the record shows that the Court had passed an order on 04.02.2020 that further proceedings pending before the learned Court below shall remain stayed till the next date of hearing. On 03.03.2020, the time was granted to the learned counsel for the petitioner to file a rejoinder and to respondents No.2 to 8 to file a reply and it was ordered that interim order dated 04.02.2020 shall continue till the next date of hearing.

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On 24.11.2021, the learned counsel for the petitioner prayed for time which was allowed and it was ordered that the matter be listed after four weeks and till then the interim order will continue. On 25.05.2022, learned counsel for the petitioner prayed for an adjournment, which was allowed and the matter was ordered to be listed after four weeks; however, the Court had not extended the interim order. Thereafter, the record shows that the learned counsel for the petitioner kept on praying for adjournment and the matter was not heard. The interim order passed by the Court was also not extended. On 10.11.2023, the Court ordered that the record be returned.

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Thus, the order of the Court was quite specific that an interim order was granted till the next date of hearing and there was no order of continuation of the interim order on 25.05.2022 on which date the adjournment was sought on behalf of the petitioner, which shows that the interim order lapsed on that day.

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It was laid down by the Hon’ble Supreme Court in High Court Bar Assn. v. State of U.P., 2024 SCC OnLine SC 207 that when the High Court grants a stay of the proceedings while issuing notice without giving an opportunity of being heard to the

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contesting parties, it is not an interim order but it is an ad interim order of stay. It can be converted into an interim order of stay only after the opportunity of being heard is granted to all the parties. ad interim orders by their very nature should be of limited duration. It was observed:

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“15. When a High Court grants a stay of the proceedings while issuing notice without giving an opportunity of being heard to the contesting parties, it is not an interim order, but it is an ad-interim order of stay. It can be converted into an interim order of stay only after an opportunity of being heard is granted on the prayer for interim relief to all the parties to the proceedings. Ad-interim orders, by their very nature, should be of a limited duration. Therefore, such orders do not pose any problem.”

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It was further held that the High Court can always

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vacate or modify an interim order after hearing the parties and if a litigant after getting an order of stay deliberately prolongs the proceedings by seeking adjournments on unwarranted grounds or

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by remaining absent on the day when the case is called out for hearing with the object of taking undue advantage of the order of stay. It was observed:

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“16. The High Courts are always empowered to vacate or modify an order of interim relief passed after hearing the parties on the following, amongst other grounds:—

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(a) If a litigant, after getting an order of stay, deliberately prolongs the proceedings either by seeking adjournments on unwarranted grounds or by

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remaining absent when the main case in which interim relief is granted is called out for hearing before the High Court with the object of taking undue advantage of the order of stay;

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(b) The High Court finds that the order of interim relief is granted as a result of either suppression or misrepresentation of material facts by the party in whose favour the interim order of stay has been made; and

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(c) The High Court finds that there is a material change in circumstances requiring interference with the interim order passed earlier. In a given case, a long passage of time may bring about a material change in circumstances.

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17. These grounds are not exhaustive. There can be other valid grounds for vacating an order of stay.”

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Thus, the Hon’ble Supreme Court has laid down the

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difference between an ad interim order, which is to be confirmed after hearing the parties and an interim order, which is passed after hearing the parties. The former is of limited duration, while the latter is effective during the pendency of the proceedings but can be vacated after hearing the parties at length.

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In the present case, the Court had passed the order while issuing notices; hence, it was an ad-interim order of stay effective for a limited duration. It was never converted into an interim order after hearing the parties. Even this ad interim order continued for about two years and the applicant never sought its

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confirmation but kept on seeking the adjournments. Finally, the Court did not extend it on 25.05.2022, probably, because the petitioner was seeking adjournments after getting the ad interim order in his favour; therefore, it is not permissible for the petitioner to say that an interim order of stay subsisted in his favour and the learned trial Court had no jurisdiction to pronounce the judgment.

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The Court had the power not to extend the ad interim order or even to vacate the interim order when it found that the party was deliberately delaying the matter. The petitioner never assailed the order of not extending the interim order. He even did not seek its confirmation during the pendency of the proceedings. He felt satisfied by taking the adjournments; hence, he cannot blame anyone but himself for the vacation of the ad interim order.

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A heavy reliance was placed upon the following observations in High Court Bar Association (supra)

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“52. It is settled in law that grant of interim stay order ought to be ordinarily by a speaking order and therefore as a necessary corollary, a stay order once granted cannot be vacated otherwise than by a speaking order, more so, when its extension also requires reasons to be recorded.”

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These observations will not assist the petitioner because they relate to an interim order and not an ad interim order. In the present case, no speaking order of granting a stay was passed and there was no question of vacating it by a speaking order.

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The Hon’ble Supreme Court held in High Court Bar Association (supra) that no one should be made to suffer on account of fault of the Court. It was observed:

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“51. It is well recognised that no one can be made to suffer on account of any mistake or fault of the Court which means that even delay on the part of the Court in deciding the proceedings or any application therein would not be detrimental to any of the parties to the litigation much less to the party in whose favour an interim stay order is passed.”

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In the present case, there was no delay on the part of

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the Court in deciding the matter; rather the petitioner had prolonged the matter for more than 4 years after obtaining an ad interim order of stay. This is a classical example of how the proceedings are prolonged by a party after obtaining the order in its favour and there is a force in the submission of Mr Prashant Sen, learned Deputy Advocate General that extraordinary power under Section 482 Cr.PC should not be exercised in favour of such a party and the quest for justice should not turn into oppression

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by permitting a person to bring the wheels of justice to a grinding halt.

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Since the main case has been disposed of by the learned Trial Court; hence, the present petition challenging the interlocutory order is dismissed as having become infructuous.

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( Rakesh Kainthla)

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Judge

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10 July, 2024

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(Ankit)

Bidhi Chand v. State of Hp and Others

Case brief

What is this about?

What did the court decide?

Bidhi Chand v. State of Hp and Others

Case brief

What is this about?

What did the court decide?

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