We have no doubt that the
direction issued in paragraph 36 of the judgement passed in the Asian
Resurfacing case regarding automatic vacation of stay has been issued in the
exercise of jurisdiction of this Court under Article 142 of the
Constitution of India. Even the direction in paragraph 37 of conducting day-to-day
hearing has been issued in exercise of the same jurisdiction. The effect of the
direction issued in paragraph 36 is that the interim order of stay granted in
favour of a litigant stands vacated without even giving him an opportunity of
being heard,100 though there may not be any default on his part.
Before we examine the questions, we need to advert to120 the object of passing orders of interim
relief pending the final disposal of the main case. The reason is that the
object of passing interim order has not been considered while deciding
Asian Resurfacing case. An order of interim relief is usually granted in
the aid of the final relief sought in the case. An occasion for passing an
order of stay of the proceedings normally arises when the High Court is dealing
with a challenge to an interim or200 interlocutory order passed during the pendency of
the main case before a trial or appellate Court.
The High Court can grant relief of the stay of hearing of the main
proceedings on being satisfied that a prima facie case is240 made out and that the failure to
stay the proceedings before the concerned Court in all probability may
render the remedy adopted infructuous. When the High Court passes an
interim order of stay, though the interim order may not expressly say so,
factors like prima facie case, irreparable loss, and balance of
convenience, are always in the back of the300 judges' minds.
Though interim orders of stay of proceedings cannot be routinely
passed as a matter of course, it cannot be said that such orders
can be passed only in exceptional cases. Nevertheless, the High
Courts, while passing orders of stay in serious cases like the offences under
the PC Act or serious offences against women and children, must be360 more cautious and circumspect.
An occasion for passing an order of stay of proceeding arises as it is not
possible for the High Court to take up the case for final hearing
immediately. While entertaining a challenge to an order400 passed in a pending case, if the
pending case is not stayed, the trial or the appellate Court may decide the
pending case, rendering the remedy before the High Court ineffective. Such a
situation often leads to the passing of an order of remand.
In our legal system, which is facing
a docket explosion, an order of remand should be made only as a last
resort. The orders of remand not only result in more delays but also increase
the480 cost of
litigation. Therefore, to avoid the possibility of passing an order of remand,
the grant of stay of proceedings500 is called for in many cases. 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.
Elementary principles of natural600 justice, which are well recognised
in our jurisprudence, mandate that an order of vacating interim relief
or modification of the interim relief is passed only after hearing all the
affected parties. An order of vacating interim relief passed without hearing
the beneficiary of the order is against the basic tenets of justice.
Application of mind is an essential part of any decision-making process.
Therefore, without application of mind, an order of interim stay cannot be vacated
only on the ground of lapse of time when the litigant is not responsible for
the delay. An interim order lawfully passed by a700 Court after hearing all contesting
parties is not rendered illegal only due to the long passage of time.
Moreover, the720 directions issued in Asian Resurfacing judgement regarding
automatic vacation of interim orders of stay passed by all High Courts are
applicable, irrespective of the merits of individual cases.
If a High Court concludes after hearing all the concerned parties
that a case was made out for the grant of stay of proceedings of a civil or
criminal case, the order of stay cannot stand automatically set aside on
expiry of the period of six months only on the ground that800 the High Court could not hear the
main case. If such an approach is adopted, it will be completely
contrary to the concept of fairness. No litigant should be allowed to suffer due
to the fault of the Court. If840 that happens, it is the bounden duty of the Court
to rectify its mistake.
In the subsequent clarification in the case of Asian
Resurfacing, a direction has been issued to the Trial Courts to immediately fix
a date for hearing after the expiry of the period of six months without waiting
for any formal order of vacating stay passed by900 the High Court. This gives an
unfair advantage to the respondent in the case before the High
Court. Moreover, it adversely affects a litigant's right to the remedies under
Articles 226 and 227 of the Constitution of India. Such orders virtually defeat
the right of a litigant to seek and avail of statutory remedies such as960 revisions, appeals, and
applications under Section 482 of the Code of Criminal Procedure, 1973 as
well as the remedies under the Code of Civil Procedure, 1908. All interim orders of stay passed by all1000 High Courts cannot be set at
naught by a stroke of pen only on the ground of lapse of time.1020
