ACTUS CURIÆ NEMINEM GRAVABIT, TRULY?

‘It is not within the control of any party to have his application or the opposite party’s application listed for hearing’. Thus spake Justice V Ramasubramaniam, while holding the provision of Art 226(3) of the Constitution as not mandatory in the case of Dr.T.Gnanasambanthan Vs Board of Governors reported in 2014 (3) MLJ 1. In the said Judgment, the Judge undertook an arduous duty of watering down the mandate of a Constitutional provision, whose plain reading leaves no ambiguity; embarrassing duty as well. The other High Courts have taken a rather pedantic view.

Legislators in their enthusiasm often brings in a provision within the statute books, fixing a time frame to move the wheels of judicial process; both to the Bar and Bench. With no matching infrastructure, the horses can remain only wishes. Article 226(3) may mandate that the Application to vacate an interim order in a Writ Petition to be disposed of within two weeks but the ever expanding judicial work like oceanic wave knows well it needn’t listen; even the command is that of King Canute. Hardly a Court can dispose of a case within the statutory time limit; no different in the case of Advocates, in filing their written statements.

With his inimitable style the Learned Judge has found a way to extricate our Court from the clutches of Article 226 (3). Well, then will the observations or the reasoning of the Court help the case of litigants, who are similarly aggrieved when their cases are not listed on the date of expiry of the interim stay?

It was an usual complaint, in those golden old days that the bundles gone missing once the interim orders were granted, exparte. It happened mostly in matters against the Government; the private parties would jump in with a complaint immediately on knowing this mischief. However in the course of time such restriction is extended to all matters and has reached to a ludicrous level that now interim orders would expire even before the issuance of the order copy.

The High Court, while entertaining the applications for interim order exparte grants orders only for a limited period. Worse, even after the appearance of the Respondents, the interim orders are being continued only till the next hearing date. It is common knowledge that in most of the times, the case would not be listed on the next hearing date thanks to the miserable Bench strength against the number of cases adding to the records of the High Court each day. Much worse, an Advocate has to keep track of all such matters so as to mention it to be listed on the date of expiry for extension of the order. Advocates fail very often; even after mentioning the officers miss them.

It is only when such orders are flouted and after the Clients call, the Advocates would find to their horror that the case was slipped into the records of the Court for months, years without being listed for extension of interim orders.

There is an element of complacency that interim orders restricted with time, if not listed for hearing/ extension of time are deemed to continue until vacated by the Court, which granted the same. Unfortunately in the opinion of yours truly it is not so.

In the case of N.Rathinasabapathy Vs K.S.Palaniappa Kandar reported in 1996 (7) SCC 205, the Appellant was punished by the High Court for contempt for proceding with the construction of the building after the expiry of three weeks, till such time the order was restricted. The Supreme Court observing ‘there is no question of the order being in existence after the expiry of the period of three weeks’ held that there was no ‘contempt whatsover’.

Justice P K Misra presiding a Division Bench, true to his intelligence made use of this observation for a different purpose in the case of R.Rajamani Vs Government of Tamilnadu in the case of Writ Appeals No.955 to 959 of 2001 dated 27/04/07. Those were the matters challenging the acquisition of land; period between the initial Notification and the Declaration was the question. The Bench drawing support from the above Judgment of the Supreme Court observed, ‘When stay is granted till a particular period and subsequently after lapse of time either a fresh order of stay is passed or previous interim order is continued, it cannot be said that the period during which there was no express order of stay, the stay was operative’

Therefore, let us not be lulled into a belief that interim orders, even if not extended by specific order are deemed to continue. The Court would not come to the rescue of the litigant on whose part no ‘obligation’ to bring the matter in the list. I doubt even Justice Ramasubramaniam’s Judgment would help a litigant, when the interim order in his favour is violated after expiry of the period stipulated in Article 226 (3). It is still possible for a person to violate the order and contend that he bonafide believed reading Article 226(3) that there was no interim order in existence on the date of violation. It is necessary in this regard to recollect the observations of a Division Bench in the case of Searle (India) Limited Vs M.A.Majid in Contempt Appeal No.4 of 1998 dated 10/01/03, ‘No person is to be regarded as having violated the order of the Court unless it is shown with reasonable certainty - first, that there exists an order of the Court which directs or prohibits the commission of an act; second, that the order so made is not vague or ambiguous, but is reasonably clear and certain; third, that the person who is alleged to have disobeyed the order had knowledge of the order; and fourth, that the disobedience of such an order of the Court by the alleged contemner was willful’

The point involved in the said case is also unique. The Appellant alleged to have violated the interim order after the main matter was heard and reserved for final order. There was no specific order extending the interim order from the date when it was reserved for Judgment. The Division Bench held there was no deemed extension by observing ‘There is no presumption in law that when an interim injunction is issued upto the specified date and the case is heard on that date, but the judgment is not pronounced on the same date, the interim injunction is "deemed" to have continued till such time the judgment is pronounced’

In conclusion, is upon the Advocates and Litigants to take care to ensure listing of such matters on the date of expiry of interim orders in order to seek their extension besides praying such extension, on the Court reserving  the main case for Judgment.

Madurai

15/04/15