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REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 5499 OF 2013 (Arising out of SLP (C) No. 12909 of  2010)

M/s. Hotel Queen Road Pvt. Ltd. & Ors.      …APPELLANTS

        VERSUS

Mr. Ram Parshotam Mittal & Ors.     ....RESPONDENTS

WITH

S.L.P.(C) NO.       CC No.20730   OF 2009

J U D G M E N T

ANIL R. DAVE, J.

1. Leave granted.

2. Though the  present  litigation  has  a  chequered  history,  we  do  not  

propose to go into the details of the litigation for the reason that by  

virtue of the impugned order dated 20th April, 2010 passed in FAO  

(OS) 349 of 2009 by the High Court of Delhi, the appellants i.e. the  

present respondents had been permitted to withdraw the said appeal.

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3. It appears that the appeal was substantially heard by the High Court but  

as  the  High  Court  was  not  persuaded  to  grant  any  relief  to  the  

appellants therein, the appeal was withdrawn so as to avail alternative  

remedy available to the appellants.   

4. The appeal was permitted to be withdrawn.  In normal circumstances,  

the present appellants, who were the respondents in the said appeal,  

should not have been aggrieved by withdrawal of the appeal but they  

are aggrieved because of certain observations made by the High Court  

while permitting withdrawal  of  the  appeal.   The said  observations,  

which have been objected to, are reproduced hereinbelow :

“…All that we wish to observe is what we have said earlier, that  the  impugned  order  does,  in  fact,  partake  of  a  prima  facie  finding.

Nothing in these Orders shall preclude or prevent either of the  parties to make legal submissions before appropriate Forums.

On 3.3.2010, we had restrained the Respondent from alienating,  selling or creating any third party interest  in the Rights issue  dated 30.07.2009.  When we had passed these Orders, we were  desirous only to maintain status quo.  We clarify that it was not  passed  at  that  stage,  weighing the  respective  strength of  the  cases.   In our view, we think it appropriate and expedient to  extend the interim orders upto 10.05.2010.”

5. It  was  mainly submitted  that  no such observation could have been  

made by the Court while permitting withdrawal of the appeal and the  

interim relief which had been granted earlier in the appeal should not  

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have been continued even after  withdrawal  or  disposal  of  the  said  

appeal.   It is clear from the aforestated order that the interim relief  

which had been granted during the pendency of the appeal had been  

extended till 10th May, 2010.   

6. The parties have been referred to hereinbelow as they had been arrayed  

before the Division Bench of the High Court.

7. So far as the observations made in the impugned order with regard to  

the findings of the learned single Judge are concerned, we are of the  

view that the said observations cannot be said to be incorrect.

8. Upon perusal of the impugned order, we find that while seeking leave  

to withdraw the appeal, a request was made by the learned counsel  

appearing for the appellants,  which has  been recorded by the High  

Court as under:

“He seeks leave to withdraw the Appeal with a clarification that the  observation and decision contained in the impugned order should not  influence the mind of either of the aforementioned Judicial Forums.”

9. With regard to the aforestated request made on behalf of the appellants  

in relation to withdrawal of appeal, the High Court observed as under:-

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“Since  the  Appeal  has  been  substantially  heard,  we  are  not  persuaded  to  make  any  observation  as  prayed  for  by  the  Appellant.  We shall only state that what is palpable from the  legal  position  that  the  views  and  decisions  contained  in  the  impugned order are perforce of a prima facie nature.”  

10. Thus, upon reading the impugned order, the High Court did not ask the  

authority,  which was  to  be  approached  by  the  appellants,  that  the  

observations made by the learned single Judge should be ignored.  The  

order  of  the  learned  single  Judge  was  to  be  challenged  by  the  

appellants before another forum and therefore, the Division Bench did  

not state  anything on the merits of the order passed by the learned  

single Judge.  In our opinion, the Division Bench had made innocuous  

observations which cannot be said to be unjust or improper.   

11. We have heard the learned counsel appearing for both sides and have  

also considered the judgments cited by them.

  12. So far as the direction with regard to continuation of the interim relief  

upto 10th May, 2010 is concerned, the learned counsel appearing for  

the appellants had submitted that upon disposal of the appeal, the High  

Court had become functus officio and therefore, the High Court ought  

not to have extended the interim relief upto 10th May, 2010 especially  

when the appeal had been withdrawn on 20th April, 2010.

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13. The  learned  counsel  appearing  for  the  appellants  had  relied  upon  

certain judgments of this Court to the effect that upon final disposal of  

a  case,  the  court  becomes  functus  officio and  therefore,  the  court  

should not extend interim relief.  The learned counsel had relied upon  

the observations made in para 24 of the judgment delivered in the case  

of Ajay Mohan and  Others v. H.N. Rai and Others (2008) 2 SCC  

507, which reads as under :

“24. The order of the City Civil Court dated 13-10-2006 may be  bad but then it  was  required to  be set  aside by the court  of  appeal.   An  appeal  had  been  preferred  by  the  appellants  thereagainst but the same had been withdrawn.  The said order  dated 13-10-2006, therefore, attained finality.  The High Court,  while allowing the appellant to withdraw the appeal, no doubt,  passed an order of status quo for a period of two weeks in terms  of its order dated 23-11-2006 but no reason therefor had been  assigned.  It ex facie had no jurisdiction to pass such an interim  order.   Once  the appeal  was  permitted to  be  withdrawn,  the  Court  became  functus  officio.   It  did not  hear  the parties  on  merit.   It  had  not  assigned  any  reason  in  support  thereof.  Ordinarily,  a  court,  while  allowing  a  party  to  withdraw  an  appeal, could not have granted a further relief.  (See G.E. Power  Controls India v. S. Lakshmipathy.)

14. On the basis of the aforestated contents of para 24 in the case of Ajay  

Mohan (supra),  it  had been submitted that  upon withdrawal of the  

appeal,  the High Court  should not  have extended the interim relief  

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without assigning any reason, especially when the High Court had not  

heard the parties on merits.   

15. On  the  other  hand,  it  had  been  submitted  by  the  learned  counsel  

appearing for the respondents that in the interest of justice the court has  

inherent power to continue interim relief even after disposal of a case.  

So as  to  substantiate  the aforesaid  submission,  the learned counsel  

appearing for the respondents had relied upon the judgment delivered  

in Padam Sen and Another v. The  State of Uttar Pradesh 1961(1)  

S.C.R. 884.  

16. Similar issue had arisen in the case of The State of Orissa v. Madan  

Gopal Rungta A.I.R.  (39) 1952 S.C.12.  A five-Judge Bench had  

observed in the said judgment that:-

“…In our opinion, Art. 226 cannot be used for the purpose of  giving interim relief as the only and final relief on the application  as the High Court has purported to do.  The directions have been  given here only to circumvent the provisions of S. 80, Civil P.C.,  and in our opinion that is not within the scope of Art.226.  An  interim relief can be granted only in aid of and as ancillary to the  main  relief  which  may  be  available  to  the  party  on  final  determination of his rights in a suit or proceeding.  If the Court  was of opinion that there was no other convenient or adequate  remedy  open  to  the  petitioners,  it  might  have  proceeded  to  investigate the case on its merits and come to a decision as to  whether the petitioners succeeded in establishing that there was  an infringement of any of their legal rights which entitled them to  a writ of mandamus or any other directions of a like nature; and  pending such determination it might have made a suitable interim  

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order for maintaining the status quo ante.  But when the Court  declined to decide on the rights of the parties and expressly held  that they should be investigated more properly in a civil suit, it  could not, for the purpose of facilitating the institution of such  suit,  issue  directions  in  the  nature  of  temporary  injunctions,  under Art.226 of the Constitution.  In our opinion, the language  of Art.226 does not permit such an action.  On that short ground,  the judgment of the Orissa High Court under appeal cannot be  upheld.”

17. In view of the aforestated judgments, it is very clear that if a petition is  

not  maintainable  and is  ultimately withdrawn,  the  court  should not  

continue interim relief  for  a  period  beyond withdrawal  of  the  writ  

petition.  However, the aforestated observation would not apply to a  

case where the matter is heard on merits and after considering the facts  

of the case the court permits withdrawal of the case.  In such a case,  

the court is at liberty to extend the interim relief or can grant interim  

relief for a limited period after recording reasons for the same.   

18. In view of the facts of the case, in our opinion, the High Court was not  

in  error  while  extending  the  interim  relief  for  some  time  while  

permitting  withdrawal  of  the  appeal  as  the  High  Court  has  also  

recorded  the  reasons  for  which the  interim relief was  extended  till  

10.5.2010.

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19. In view of the aforestated legal position, in our opinion, the High Court  

did not commit any error while extending the interim relief especially  

when the matter was heard on merits by the court and only to facilitate  

the appellants  therein,  the High Court  had permitted withdrawal of  

appeal.

20. In the circumstances, we dismiss the appeal with no order as to costs.  

Interim relief  which had  been  granted  earlier  by  this  Court  stands  

vacated.  

S.L.P. (C) No. (CC No.20730) of 2009  

1. In view of the fact that FAO (OS) No.349 of 2009 had been permitted  

to be withdrawn by the subsequent order passed by the High Court of Delhi  

at New Delhi on 20th April, 2010, the special leave petition does not survive  

as  the  impugned  order  has  already  been  withdrawn.   The  special  leave  

petition is dismissed as infructuous.   

  ………….....................CJI             (ALTAMAS KABIR)

      ........................................J.

                                                                     (ANIL R. DAVE)                                       

New Delhi July 16, 2013

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