Kabita Sa Vs State of Odisha

For Respondents : Mr. Debasis Tripathy, Addl. Government Advocate (For State-respondents) : Mr. Dharanidhar Nayak, Senior Advocate Mr. Pratik Nayak, Advocate (For respondent No.5)

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CORAM:

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HON’BLE THE CHIEF JUSTICE AND

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HON’BLE MR. JUSTICE MURAHARI SRI RAMAN

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J U D G M E N T

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Date of Hearing and Judgment : 12^th May, 2026

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HARISH TANDON, CJ.

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The seminal point involved in the instant writ petition is

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whether the interlocutory application seeking implementation of the

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parent order is maintainable in a disposed of proceeding.

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The order impugned in the instant appeal would reveal that the single Bench directed the state-respondents to ensure the due implementation of the parent order which according to the appellant cannot be passed by any stretch of imagination as the Court becomes functus officio the moment the final order and/or judgment is passed, which brings quietus to the proceeding. Such being the pivotal point involved in the instant appeal, we invited the appearing counsels to address us on such point.

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Mr. Gautam Misra, learned Senior Advocate appearing for the appellant vociferously submits that the certainty and/or finality to any litigation in the courts of the country is a fundamental principle as no litigation shall remain open to be adjudicated upon at all point of time. According to him, the Judge does not retain jurisdiction nor would attempt to exercise such jurisdiction after it becomes functus officio i.e., by delivering the final verdict except within the limited contours as provided in the various provisions of the statute. In support of the aforesaid stand taken before us, Mr. Misra, learned Senior Advocate relies upon a judgment of the apex

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Court rendered in case of Ajay Kumar Jain v. State of Uttar Pradesh and another, 2024 SCC OnLine SC 3677 and a Division

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Bench judgment of the Delhi High Court in case of Telecom Watchdog through its Secretary Vikram Mittal v. Union of India through its Secretary Department of Telecommunications and others, 2025 SCC OnLine Del 8811.

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Per contra , Mr. Dharanidhar Nayak, learned Senior Advocate appearing for respondent No.5 submits that there is no absolute fetter in filing an interlocutory application in a disposed of matter as contended by Mr. Misra in his submission. He further submits that the application to implement the parent order or its operative portion in a disposed of proceeding is maintainable as the Court does not decide any new issue, but goes by the ipse dixit o f the operative portion. To buttress the aforesaid submission, he placed reliance upon the judgment of the apex Court delivered in case of K.A. Ansari and another v. Indian Airlines Limited, 2009 (2) SC

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164. He, thus, submits that there cannot be an absolute bar in maintaining an interlocutory application in a disposed of proceeding and, therefore, the contention of the appellant that an absolute embargo is created in filing any miscellaneous application/interlocutory application in the disposed of matter is not legally correct.

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On the conspectus of the respective submissions so advanced and the point as adumbrated hereinabove, let’s examine whether an interlocutory application of any nature is impermissible to be filed in a disposed of matter after the Judge becomes functus officio . A prelude to the litigation is required to be recapitulated in order to ascertain the applicability of the legal principles emanating from the reports relied upon by the respective counsels. The writ petition being W.P.(C) No.8567 of 2025 was filed by respondent No.5 challenging the order dated 13^th March, 2025 whereby and whereunder the prayer of respondent No.5 for revocation of a removal order from the post of Sarpanch of Paikabahal Gram Panchayat was rejected as the criminal case is registered against him, which is under investigation. The said order came to be passed as respondent No.5/writ petitioner was elected as Sarpanch of the said Gram Panchayat and a grievance petition was submitted by seven Ward Members including the appellant pertaining to his action in the affairs of the Gram Panchayat and avoidance of adhering to a majority views expressed by the Ward Members. An allegation was also made that the writ petitioner/respondent No.5 did not convened the Gram Sabha and Palli Sabha meetings and illegally and wrongfully diverted the Panchayat funds from the project work

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previously allotted in absence of any resolution to be taken by the Gram Sabha and/or in the Panchayat meeting. The Collector, Subarnapur caused an enquiry into the complaint through the District Panchayat Officer, who upon going into the physical verification submitted a report on 1^st July, 2023. Subsequently, the Collector conducted a full-fledged enquiry and after the completion thereof, passed order dated 30^th July, 2024 directing the removal of the writ petitioner/respondent No.5 from the Office of the Sarpanch of the said Gram Panchayat.

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The writ petitioner/respondent No.5 challenged the said order of the Collector dated 30^th July, 2024 by preferring an appeal before respondent No.1, which stood dismissed/ rejected by an order dated 13^th March, 2025, which was a subject matter of challenge in the writ petition filed before the Single Bench. The said writ petition came to be disposed of on 18^th July, 2025 with the following directions:

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“6. Having said that, recording the submissions of Mr. Nayak, learned counsel for the petitioner, who strenuously urged revocation of the suspension relying on the case laws cited by him and response of Mr. Ray, learned AGA, the Court is of the conclusion that a

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direction is required to be issued to opposite party No.1 to freshly consider revocation of suspension in the light of allegations against him and in view of the order of removal i.e. Annexure-8 keeping in view the settled legal position that suspension and removal of an elected representative is a drastic action and therefore, any such jurisdiction under Section 115 of the Act should be sparingly exercised and only as a last resort as has been held time and again and highlighted upon by this Court in Nutan Kumar Rout (supra) and to pass an order at the earliest without further delay and as the same would serve the purpose and meet the ends of justice.

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7. Accordingly, it is ordered.

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8. In the result, the writ petition stands disposed of with the direction as aforesaid to be complied with by opposite party No.1. It is further directed that such a decision by opposite party No.1 shall be taken as soon as possible followed by a reasoned order at the earliest preferably within a period of four weeks from the date of receipt of a copy of this order failing which immediate revocation shall take effect.”

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7. After the disposal of the said writ petition, the aforesaid

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parent order was assailed by the present appellant before the Division Bench of this Court in an intra court appeal being WA

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No.1383 of 2025, which was dismissed on 21^st August, 2025. As it

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appears from the excerpts quoted hereinabove, an interlocutory application being IA No.23046 of 2025 was taken out by the writ petitioner/respondent No.5, which is disposed of by the impugned order, which runs thus:

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“1. Heard learned counsel for the respective parties.

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2. This Court by order dated 20^th February, 2026 had directed compliance of the order in W.P.(C) No.8567 of 2025 concluding the exercise by the next date fixed failing which to notify the revocation of suspension against the petitioner.

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3. No response has been received from opposite party No.1 in particular. It is informed to the Court by Mr. Panda, learned ASC for the State that opposite party No.2 has submitted request to the Government for implementation of the order in W.P.(C) No.8567 of 2025.

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4. Recorded the submission of Mr. Nayak, learned counsel for the opposite parties.

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5. While disposing of the writ petition, this Court by order dated 18^th July, 2025 directed opposite party No.1 to take a decision on the order of removal i.e. Annexure-8 within a stipulated period failing which immediate revocation shall take effect.

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6. The petitioner was the Sarpanch of the concerned G.P. and was removed by order dated 12^th September, 2024 as at Annexure-8 to the writ petition.

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7. Mr. Nayak, learned counsel for the petitioner submits that the order has been confirmed in W.A. No.1383 of 2025, a copy of which is at Annexure-3 to the I.A.

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8. Considering the above facts and in absence of response from opposite party No.1 to the I.A., this Court, in view of the order dated 18^th July, 2025 in W.P.(C) No.8567 of 2025, directs that the petitioner shall be reinstated forthwith followed by a notification in that regard.

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9. I.A. is disposed of.

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10. Issue urgent certified copy as per rules.

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11. A copy of the order be handed over to Mr. Panda, learned ASC for its onward intimation to opposite party No.1.”

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On the backdrop of the aforesaid facts as narrated in seriatim, the first and foremost aspect which the Court must take a note of is the nature of an interlocutory application and the reliefs sought to be claimed therein. It is no gainsaying that the moment the

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learned Judge passed a final verdict which brings quietus to a proceeding, he becomes functus officio and cannot revisit and/or

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reopen such litigations unless provided by the statutory provisions. Ordinarily, the Court loses its jurisdiction and becomes functus officio after the delivery of the judgment in the open Court, yet the powers and the jurisdiction can be exercised by the Court within the limited contours namely under Section 152 of the Code of Civil Procedure, 1908 where any correction is sought to a ministerial and/or arithmetical error, which crept into the final verdict. The error must be of such magnitude that it does not require hovering around the voluminous paper to find out the same, but must be patent on the face of it and no ordinary person would perceive the same to be correct in the perspective of the facts. The ministerial and/or arithmetical error, the expressions appearing under Section 152 of the Code has to be understood in such limited compass and cannot be stretched too far to reopen the issues or to revisit the order, which brings finality to the litigation.

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The another power and the jurisdiction exercised by the Court against a judgment and/or order is also provided under Section 114 read with Order 47 of the Code where the Court can review its order provided the grounds enumerated therein are proved by a corroborative evidence. Equally, the Court can implement its own

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order without tinkering with any words or expressions used in the parent judgment, nor can add and/or substitute any such words or expressions while exercising such jurisdiction. It is well known in a common legal parlance that the executing court cannot go beyond the decree, but must travel within the circumference thereof. Any transgression beyond such boundaries is not permissible as it would disturb the very fabric of the fundamental policy of the country that every litigation must attain finality. Even the Court should not transcend the boundaries of the law and assume jurisdiction not provided or prohibited by the statutory provisions either expressly or by necessary implication. Such being the broad principles, as understood, let’s consider the judgments cited by the respective counsels and their applicability in the perspective of the facts germinating from the record.

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In K.A. Ansari (supra), the two Judge Bench of the apex Court was considering an application seeking clarification of the final judgment rendered by the single Judge. The same was allowed, but the Division Bench in unequivocal terms held that after the disposal of the writ petition, miscellaneous applications are not maintainable and, therefore, the order of the single Bench is

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incorrect and/or unsustainable. By the final order disposing of the writ petition apart from various reliefs, one of the reliefs relating to the entitlement of the writ petitioners therein to be posted in the equivalent scale held by them. Immediately, the order was communicated to the Chairman-cum-Managing Director of the Indian Airlines for due implementation of the said direction so passed and the service rendered in Vayudoot should also be taken into consideration for the purpose of the retiral benefits. Since the Airlines did not accede to such prayer, a miscellaneous application was moved in the said disposed of writ petition seeking a direction upon the Airlines to place him in the ground job on a equivalent pay scale of a Deputy Manager as directed in the final order. The plea was taken that once the final order is passed, no miscellaneous application can be filed in a disposed of matter. The single Bench disposed of the said miscellaneous application recording that the counsel for the Airlines has not disputed that the petitioner was placed at a particular scale, when the aforementioned letter was issued and directed the placement of the petitioner therein to the same scale of pay as he was enjoying at the time the said letter was issued as even a change of cadre can never meddled with the scale of pay. The Airlines challenged the said order before the Division

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Bench where the appeal was allowed and the matter thereafter travelled to the apex Court. After hearing the respective counsels, the apex Court held that when the proceeding stood terminated by a final disposal, it is not open to the Court to reopen the proceeding by taking shelter under the miscellaneous application. A distinction is sought to be drawn by the apex Court in the above report that if the miscellaneous application/interlocutory application is founded upon a fresh cause of action, it denuded the power of the Court to enter into such aspect and the said application is not maintainable. But, the said principles would not have its universal application, if such application is to secure a due implementation of the reliefs granted by the Court in the following:

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“17. It is trite that a party is not entitled to seek a review of a judgment merely for the purpose of rehearing and a fresh decision of the case. It needs little emphasis that when the proceedings stand terminated by final disposal of the writ petition, it is not open to the court to reopen the proceedings by means of miscellaneous application in respect of a matter which provides fresh cause of action. If this principle is not followed, there would be confusion and chaos and the finality of proceedings would cease to have any meaning. (See State of U.P. v. Brahm Datt

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Sharma [(1987) 2 SCC 179 : (1987) 3 ATC 319] , SCC p. 188, para 10.) At the same time, there is no prohibition on a party applying for clarification, if the order is not clear and the party against whom it has been made is trying to take advantage because the order is couched in ambiguous or equivocal words.

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18. Therefore, the question for consideration in the instant case is whether the miscellaneous application preferred by the first appellant could be said to be founded on a fresh cause of action?

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19. Having bestowed our anxious consideration on the rival submissions, we are of the opinion that keeping in view the terms of the final order dated 11-10-2004, the miscellaneous application could not be said to be founded on a separate or fresh cause of action so as to fall foul of the aforenoted legal position viz. on termination of proceedings by final disposal of writ petition, it is not open to the court to reopen the proceedings by means of a miscellaneous application in respect of a matter which provided fresh cause of action.

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20. It is manifest that in Direction (ii), the learned Single Judge had clearly directed that the writ petitioners would be entitled “to be posted to a post in equivalent scale held by them when the letter dated 234-2003 was issued”. The respondent Indian Airlines was obliged to obey and implement the said direction.

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If they had any doubt or if the order was not clear, it was always open to them to approach the court for clarification of the said order. Without challenging the said direction or seeking clarification, Indian Airlines could not circumvent the same on any ground whatsoever. Difficulty in implementation of an order passed by the court, howsoever grave its effect may be, is no answer for its non-implementation.

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21. In our opinion, in the miscellaneous application, no fresh relief, on the basis of a new cause of action, had been sought. It was an application filed for pursuing and getting implemented the relief granted in the writ petition, namely, placement in appropriate grade in which he was placed at the time when letter dated 234-2003, was issued. This was precisely done by the learned Single Judge vide his order dated 4-3-2005.

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22. Without examining those factual aspects of the matter, in our judgment, the Division Bench was in error in holding that after the disposal of the writ petitions, miscellaneous application was not maintainable and the only remedy available to the appellant was to approach the authorities and if his interpretation was not acceptable to them, then he could file a fresh writ petition.”

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In Ajay Kumar Jain (supra), the writ petition under Article

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32 of the Constitution of India was disposed of by the Court

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directing the first respondent therein to device a mechanism for enforcing the Court’s order with further direction upon the District Judge to dispose of the proceeding initiated at the behest of the petitioner therein for breach of the order, which enures to his benefit. A wider relief in the form of a direction upon the District Judge and SSP to grant protection during the pendency of the civil appeal pending before the Agra court was not entertained. The miscellaneous application came to be filed reiterating the wider relief and a plea was taken that such application is not maintainable in the eye of law. The apex Court took note of the earlier judgment of the Supreme Court rendered in Jaipur Vidyut Vitran Nigam Ltd. v. Adani Power Rajasthan Ltd., 2024 SCC OnLine SC 313 where a broader principle relating to the maintainability of the interlocutory application/miscellaneous application was succinctly laid down. It was held that the application for correcting any clerical, ministerial and/or arithmetical error is permissible. Even an application for modification and/or clarification of an order can also be entertained by the Court, but exercise of such power should be done in rare cases when the implementation of the direction passed becomes impossible either because of the subsequent event or the subsequent development having taken place in the following:

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“17. Thus, this Court made it abundantly clear that a miscellaneous application filed in a disposed of proceedings would be maintainable only for the purpose of correcting any clerical or arithmetical error. The Court further clarified that a post disposal application for modification or clarification of the order would lie only in rare cases where the order passed by this Court is executory in nature and the directions of the Court may have become impossible to be implemented because of subsequent events or developments.”

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The Court ultimately held that the miscellaneous application

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is not maintainable which can be reasonably gathered from the facts narrated therein that by such application, neither the reliefs already granted earlier can be expended and/or implemented beyond the limits set forth there nor the Court should substitute the reliefs, unless it comes within the purview of modification and/or a clarification necessitated by a subsequent event or a subsequent development; that too the Court must be cautious in entertaining the same and it is only in such rare cases which invites such exercise to be undertaken, the Court may take recourse thereto.

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What can be carved out from the above noted report that the Court may entertain an interlocutory/miscellaneous application, but

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the exercise of jurisdiction is limited and depends upon the nature of the reliefs claimed therein. It is misnomer that an absolute embargo is created in maintaining and/or entertaining any interlocutory or miscellaneous application in a disposed of matter and such absolute embargo cannot be created nor be perceived in the Indian legal system.

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The division Bench of the Delhi High Court in Telecom Watchdog (supra) was dealing with the identical situation arising from the judgment rendered in Ajay Kumar Jain (supra) where by virtue of a miscellaneous application more reliefs what was not granted was sought to be claimed and relying on the judgment of the apex Court in Jaipur Vidyut Vitran Nigam Ltd. (supra) and Ajay Kumar Jain (supra), the Division Bench held that such an application is not maintainable. There is no dissent and/or quarrel to the proposition of law as laid down by the apex Court and reiterated and restated by the Division Bench of the Delhi High Court that ordinarily the miscellaneous/interlocutory applications are not maintainable to seek any further directions or to revisit and/or reconsider the case and to rewrite the judgment again, but such applications are permissible in the disposed of matter, even the

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learned Judge becomes functus officio , if the relief in the nature of correction of a ministerial, arithmetical and/or clerical error, which is patent on the face of the record. It is also maintainable for modification and/or clarification of an order with the rider that such clarification and modification is inevitable by virtue of a subsequent events or subsequent developments having taken place and, therefore, a great caution and circumspection should be ensured by the Court and such power should be used in rare cases.

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The Court can also review its own judgment/order, but within the limited parameters as set forth in Section 114 read with Order 47, Rule 1 of the Code. The Court can also entertain an application to implement the order without tinkering with the ultimate directions passed in a final verdict disposing of the proceeding as the order passed by the Court should not remain a dead letter and it is an ardent duty of the Court to see that its order is duly implemented.

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We have reproduced the reliefs granted by the single Bench while disposing of the writ petition and also the impugned order challenged in the instant appeal and we find that the said application is simply disposed of directing the authority to implement the said

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order and not to substitute and/or extend the horizon of the order not passed while disposing of the proceeding. It would further gets strengthen by the fact that while disposing of the writ petition and a direction having passed upon the State to take a conscious decision on the removal of the writ petitioner/respondent No.5, the consequence for its failure within the time stipulated therein was also provided. It was clearly spelt that if respondent No.1 does not take a conscious decision within the time indicated therein, the effect of revocation would follow. The tenet of the ultimate decision does not create any ambiguity in its understanding that the failure on the part of respondent No.1 would invite such consequential effect to take place automatically. Even if such consequence is automatic and operates in the event of the contingencies, yet there is no fetter on the part of the Court in passing such direction that the consequence has operated. It is a simplicitor the implementation of the order and, therefore, we do not find any fetter on the part of the writ petitionerrespondent No.5 to take recourse to the miscellaneous/interlocutory application seeking implementation thereof.

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However, in course of hearing of the instant appeal, our attention is drawn by Mr. Debasis Tripathy, learned Additional

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Government Advocate that the order impugned has already been implemented. The notification has been placed before us, which reveals the due implementation of the interim order, but to our dismay, we find that the said respondent No.1 has not complied the final direction passed by the singe Bench while disposing of the writ petition. It was expressly directed that the conscious decision should be taken within the time set forth therein and the consequence in the event of a failure was also permeated into the said authority. Such authority cannot sleep in a slumber nor should sit upon the said direction and invite the advantage to be availed by any of the litigating party. This is one of the examples that because of the failure on the part of respondent No.1, the consequential effect has taken place to the great detriment of the appellant and, therefore, the Court cannot be a mute spectator in this regard.

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Though we find that the order impugned does not warrant any interference, but the moment this Court finds that the direction passed in the writ petition has not been complied with, we, therefore, direct respondent No.1 to take a conscious decision as directed by the single Bench in its order dated 18^th July, 2025 within three weeks from the date of the communication of this order. The timeline fixed

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hereinabove is a peremptory and mandatory. It is open to respondent No.1 to pass any direction as the facts and circumstances so warrant and shall not be swayed by the direction passed by the single Bench, which is impugned in the instant appeal, if it leads to other consequences.

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