National Open School Vs. Apurva Mitra & Ors.
EmailAppeal: Civil Appeal No. 2371 of 2000
(Arising out of S.L.P. (C) No. 6747 of 1999)
(Arising out of S.L.P. (C) No. 6747 of 1999)
Petitioner: National Open School
Respondent: Apurva Mitra & Ors.
Apeal: Civil Appeal No. 2371 of 2000
(Arising out of S.L.P. (C) No. 6747 of 1999)
(Arising out of S.L.P. (C) No. 6747 of 1999)
Judges: S.P. BHARUCHA, DORAISWAMY RAJU & SHIVARAJ V. PATIL, JJ.
Date of Judgment: Mar 04, 2000
Head Note:
PRACTICE AND PROCEDURE
Constitution
Articles 226, 136 – Writ against an order passed in appeal against an interim order in a suit – Maintainability. Held that the objection shall be considered by High Court including what interim orders if any, can be passed. Till then, impugned orders to remain stayed.
(Para 5)
JUDGEMENT:
ORDER
1. Leave granted.
2. The order under challenge was passed on a writ petition. The writ petition impugned an order in an appeal against an interim order in a suit. The impugned order under challenge read, so far as it is relevant, thus :
“In the meantime, the operation or the order dated 11.1.1999 passed by the Appellate Court in Appeal No. 325 of 1997 shall remain stayed. It is further directed that the petitioner shall not be prevented by the respondents from appearing in the senior secondary examination of the year 1999. The result of the Hindi supplementary examination which the petitioner has undertaken, shall be declared within a period of 15 days. This interim order is subject to the ultimate outcome of the present writ petition.”
3. Learned Counsel for the appellant submits that a writ petition should not have been entertained against an appellate order in a suit. He also submits that no order of this kind ought to have been passed without first hearing the appellant. On behalf of the first respondent, it is submitted that in the Allahabad High Court the only remedy in such a situation is by way of a writ petition. He also submits that in the circumstances of the case, the interim order was justified.
4. By our orders at earlier points of time, the order under challenge was stayed, without prejudice to the rights and contentions of the parties and the first respondent was permitted to deposit the examination fee for the current year which the appellant was required to accept.
5. In our view, the appropriate order, that we should pass, is to continue the stay of the order under challenge until such time as the writ petition is now heard by the High Court. At that stage, the High Court will rule upon the objection of the appellant that a writ petition should not have been entertained and it shall also consider, after hearing the appellant, what, if any, interim order should be passed. This shall be done expeditiously. Liberty to the parties to move the High Court for a fixed date.
6. Order on the appeal accordingly.
7. No order as to costs.
1. Leave granted.
2. The order under challenge was passed on a writ petition. The writ petition impugned an order in an appeal against an interim order in a suit. The impugned order under challenge read, so far as it is relevant, thus :
“In the meantime, the operation or the order dated 11.1.1999 passed by the Appellate Court in Appeal No. 325 of 1997 shall remain stayed. It is further directed that the petitioner shall not be prevented by the respondents from appearing in the senior secondary examination of the year 1999. The result of the Hindi supplementary examination which the petitioner has undertaken, shall be declared within a period of 15 days. This interim order is subject to the ultimate outcome of the present writ petition.”
3. Learned Counsel for the appellant submits that a writ petition should not have been entertained against an appellate order in a suit. He also submits that no order of this kind ought to have been passed without first hearing the appellant. On behalf of the first respondent, it is submitted that in the Allahabad High Court the only remedy in such a situation is by way of a writ petition. He also submits that in the circumstances of the case, the interim order was justified.
4. By our orders at earlier points of time, the order under challenge was stayed, without prejudice to the rights and contentions of the parties and the first respondent was permitted to deposit the examination fee for the current year which the appellant was required to accept.
5. In our view, the appropriate order, that we should pass, is to continue the stay of the order under challenge until such time as the writ petition is now heard by the High Court. At that stage, the High Court will rule upon the objection of the appellant that a writ petition should not have been entertained and it shall also consider, after hearing the appellant, what, if any, interim order should be passed. This shall be done expeditiously. Liberty to the parties to move the High Court for a fixed date.
6. Order on the appeal accordingly.
7. No order as to costs.
