Iftikhar Hussain vs Muneera

The learned single judge while dismissing the writ petition on 29.07.2002 has directed the parties not to change the position on the 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 hut 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 summarised:

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 versus union

of India respondent (AIR 1969 page 39) and v. J. Mathew appellant versus divisional forest officer Konni respondent (AIR 1957 Kerala page

113). These single bench judgments of the high court, no doubt, do have persuaso five value but the verdict can not prevent us to take a contrary

view. Otherwise also the facts are quiet dismillar, therefore, these judgements have no application to the rationales of this case. How for decision of

the constitution bench of the apex court in state of Orisa versus Madan Gopal reported in AIR 1952 SC 12 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 civil procedure code 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. 3. 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 are 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 the 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 expression used in the judgment as is evident from the

observation made in the judgment itself which may be noticed.

6.....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 observation 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 adinterim direction on

10.09.2001 which was in force even on 20.07.2002 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. 5. 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 decidendi, the condition percent is that the facts must be similar. In taking this view we are fortified by the judicial

pronouncements of the apex court. One being regional manager versus Pawan Kumar (AIR 1976 SC 1766). Its para 7 may be noticed:

7......it is the rule deducible from the application of law to the facts and circumstances of a case which constitutes its ratio decidendi 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 impressible 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 indentical to the

case where it is sought to be applied. Equally it is obligatory upon the court not to apply ratio decindendi 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 of parallel

proceedings it is within its power to pass interim directions to be operative till order 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 direction 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. 8. In the result the LPA is dismissed.