Iftikhar Hussain and Another vs Muneera and Another

Kakru, J.—The learned Single Judge while dismissing the writ petition on 29-07-2002 had directed the parties not to change the position on

thee spot till the dispute is decided by the Revenue Authority who is already seized of the matter. It is not the order of dismissal of the writ petition

but the direction of status quo which has irked the appellant and is challenged through this LPA. Mr. Qayoom appearing counsel for the appellant

questions the power of the writ court to make such orders. The challenge thrown has given rise to a short but an important question which may be

summarized:

Whether the writ court lacks the power to pass an interim direction while declining to decide a writ petition on its merits in view of pendency of

parallel proceedings.

In an attempt to persuade us to answer the question in affirmative the LC has made reference to K. Dsaradharami Reddy petitioner v. Union of

India respondent (AIR 1969 SC 39) and V.J. Mathew Vs. Divisional Forest Officer, Konni, . These Single Bench judgments of the High Court,

no doubt, do have persuasive value but the verdict cannot prevent us to take a contrary view. Otherwise also the facts are quiet dissimilar,

therefore, these judgments have no application to the rationale of this case. How far decision of the Constitution Bench of the apex court in The

State of Orissa Vs. Madan Gopal Rungta, helps the contention of the LC for the appellant needs to be appreciated in the light of the facts of the

judgment aforementioned where the High Court expressly refused to make any observation with respect to the contentions of the parties and

granted an interim relief because the respondents could not file a suit till expiry of the period of 60 days, a requirement envisaged by section 80 of

CPC and the court thought it appropriate to grant an interim relief so as to save them from an irreparable loss. In nutshell the High Court refused to

investigate and pronounce the judgment on the rights of the parties leaving the civil court free to determine the issues involved. This order was set

aside by the Supreme Court on the ground that once the High Court declined to decide the rights of the parties it could not pass an order of

injunction to be in force in the interval.

Now a glance on the facts of this case. It is a case where parallel proceedings are pending and considering the logical basis of the case, the writ

court has directed the parties to maintain status quo till orders are passed in parallel proceedings and an interim direction which was passed at the

very inception of the writ petition was in operation on the date of final disposal. That apart, it is not a case where petitioners have been granted

time to approach the civil court. Obviously, the set of facts and reasons are distinguishable. It is not end of the matter because the Supreme Court

has not excluded the possibility of future eventualities which may form exception to the generality of the expressions used in the judgment as is

evident from the observation made in the judgment itself which may be noticed:

This is not a case where the court before finally disposing of a petition under Article 226 gave directions in the nature of interim relief for the

purpose of maintaining the status quo.

It is obvious from plain reading of the observations that if an interim direction was issued on a date of hearing which is prior in time to the final

order such direction can be maintained by the writ court. It may be reiterated that the learned Single judge has passed an ad interim direction on

10-09-2001 which was in force even on 29-07-2002 when writ petition was finally decided and in essence direction has been allowed to be

operative till matter is considered by the authority before which the proceedings are pending. Thus this case falls within the exception as well

stipulated by the apex court.

We are alive to the legal position that the law laid down by the apex court being binding has to be adhered to but for application of ratio decided

in the condition present is that the facts must be similar. In taking this view we are fortified by the judicial pronouncements of the apex court. One

being The Regional Manager and Another Vs. Pawan Kumar Dubey, . Its para 7 may be noticed:

It is the rule deducible from the application of law to the facts and circumstances of a case which constitutes its ratio decided in and not some

conclusion based upon facts which may appear to be similar. One additional or different fact can make a world of difference between conclusions

in two cases even when the same principles are applied in each case to similar facts.

What is deduced from the judgment supra is that departure from application of ratio is not impermissible if the facts are not similar, therefore, a

party seeking application of a judgment to a particular set of facts has to establish that the situation in the precedent relied upon is identical to the

case where it is sought to be applied. Equally it is obligatory upon the Court not to apply ratio decided in mechanically in disregard to the factual

position. The facts being dissimilar precedent is not attracted.

Reverting to the question formulated hereinabove, we hold that if the writ Court declines to deal with the matter because of pendency or parallel

proceedings it is within its powers to pass interim directions to be operative till orders are passed by the authority which may be seized of the

matter, of course, if such order is called for so as to do substantial justice between the parties. We hold further that the judgment in Madan Gopal's

case (supra) does not prohibit the writ Court from passing interim directions to govern the rights of the parties till the matter is considered by the

forum where parallel proceedings are pending which in the opinion of the writ Court is the appropriate remedy. In this backdrop, we answer the

question in negative.

In the result the LPA is dismissed.