Rani Shankeramma vs Ramchandra Reddy and Another

M.A. Ansari, J.—The legal question in this miscellaneous application for the stay of an order of mandamus issued by a Division Bench of this High Court is that this Court has no inherent jurisdiction to stay such an order even for the purposes of facilitating filing of an application for leave to appeal to the Supreme Court and obtaining stay there upon.

To appreciate the argument, it is necessary to give certain important facts of the case. The applicant is Ramchandra Reddy, who has been adopted by the widow of the last male-holder of Papannapet Samasthan, and the party contesting granting of the stay is the daughter of the last male-holder. She had in her favour the grant of succession by the Revenue authorities to the Samasthan. The grant has, in the course of proceeding on an application by the adopted son been reversed whereupon she applied to this Court for issuing of the writs of Certiorari, Prohibition and Mandamus with a view not only to set aside the judgment against her; but also to have the estate released as it had been under the supervision of the Court of Wards ever since she was the minor and her father died. A Division Bench of this Court consisting of my learned brothers Manohar Pershad and Dr. Siadat Ali Khan JJ. on August 12, 1952, allowed the application and directed the Court of Wards, who was one of the opposite parties to the application to carry out its statutory duties of surrendering the estate to Rani Shankeramma who was no longer a minor. On an application for the stay of this order of Mandamus by Ramchandra Reddy on the grounds that the judgments of the High Court are voluminous and he intends filing application for leave to appeal to the Supreme Court, another Division Bench consisting of my learned brother V. R. Deshpande and P. J. Reddy JJ. passed on August 22, 1952 an interim order directing maintaining of status quo till an absolute order on the application be made. The case was then posted before this Division Bench and the Respondent Rani Shankaramma has filed an objection to the interim order. She has, however, filed no counter Affidavit challenging the correctness of the allegations of facts contained in the affidavits in support of the earlier application as well as the supplementary affidavit which has been filed before us. These affidavits being not challenged, the facts mentioned therein can be accepted and only the question of law arises as to how far a Division Bench can pass an order maintaining status quo pending filing an application for leave to appeal to the Supreme Court, and obtaining of a stay order thereon.

An ancillary question has also arisen whether another Division Bench can pass such a stay as the Bench which passed the Mandamus order is not the one which is hearing this status quo application. We need not deal with the latter question at length for that Bench passed an order before the interim application was granted directing the case to be placed before any other Bench. This order appears to us to be sufficient ground for another Division Bench to hear and dispose of the application according to law.

Coming to the first question in the case, it has been argued by the learned Advocate of Rani Shankaramma that the order of Mandamus is a peremptory order, which involves contempt of Court in cases of disobedience; it cannot be reviewed except by the appellate Court, it is issued in exercise of extraordinary

powers and Section 151 of the CPC which alone saves the inherent jurisdiction of the Court does not apply to such proceedings. He argues that the exercise of jurisdiction under Article 226 of the Constitution is administrative and therefore the question of inherent jurisdiction does not arise at all. He further contends that in passing an interim order of status quo this Court was making Mandamus order for a limited purpose which has been held by the Supreme Court in � The State of Orissa Vs. Madan Gopal Rungta, not to be the proper exercise of jurisdiction under Art. 220, elaborating the argument, he says that the interim order of status quo amounts to the variation of the earlier of Mandamus by another Division Bench and would in effect be interference with the jurisdiction of a Division Bench, a Court of equal jurisdiction.

I would emphasise in the very beginning that the exercise of jurisdiction under Art. 226 of the Constitution by this Court is not administrative. Whether the order be of Certiorari, Prohibition, Mandamus or Habeas Corpus, this Court issues them as a Court of law. When doing so, questions of legal jurisdiction affecting an individual, or enforcement of a legal duty cast by law upon a particular officer or illegal depriving of personal freedom are decided. The Courts are guided by judicial considerations and conclusions are reached by sifting of the materials on record like any other case. The jurisdiction may be ordinary or extraordinary but the mere addition of an epithet does not take away the fundamental character of its being judicial.

The jurisdiction being judicial, the next question that arises is whether the Courts have not certain incidental or inherent powers in matters arising from their decisions. Both the English and our Courts have held that they have for the purposes of final adjudication of the dispute decided by themselves, the power of staying enforcement of their orders. I shall begin by citing the observations of two Judges in Polini v. Gray (1879) 12 Ch D 438, here Jessel M. R. at page 443 says: .

.... An action is brought to determine the rights of claimants to a fund. The Plaintiffs fail in the Court of first instance and in the Court of second instance, but are about, ''bona fide to prosecute an appeal to the court of ultimate resort. The Plaintiffs allege that that appeal will be nugatory if the fund is paid out to the Defendants, and that if the Plaintiffs should ultimately succeed in the House of Lords, that success will be useless to them unless an interim order is made for preserving the fund. I say they so contend, and, assuming the contention to be correct in fact, the question is whether this Court has jurisdiction to prevent such a consequence. ft appears to me on principle that the Court ought to possess that jurisdiction, because the principle which underlies all orders for the preserving of property pending litigation is this, that the successful party in the litigation that is the ultimately successful party, is to reap the fruits of that litigation, and not obtain merely a barren success

Then Cotton L. J. at page 446 observes:

The only question we have to consider is, whether or no the Court has jurisdiction in a proper case to stay all dealings with a fund pending an appeal to the House of Lords although the Court has decided against the title of the Plaintiff and dismissed the action. I see no difference in principle between staying the distribution of a fund to which the Court has held the Plaintiff not to be entitled, and staying the execution of an order by which the Court has decided that a Plaintiff is entitled to a fund On what principle does it do so. It docs so on this ground that when there is an appeal about to be prosecuted the litigation is to be considered as not at an end, and that being so, if there is a reasonable ground of appeal, and if not making the order to stay the execution of the decree or the distribution of the fund would make the appeal nugatory, that is to say, would deprive the Appellant, if successful, of the results of the appeal, then it is the duty of the Court to interfere and suspend the right of the party who so far as the litigation has gone, has established his rights. That applies, in my opinion, as much to the case where the action has been dismissed

I have quoted those two observations in order to show that the broad principle on which Courts direct stay of their orders is one of administering justice and is acted upon in order to facilitate resorts to the Courts of ultimate appeal so that the decisions of such courts may not prove infructuous. This broad principle appears to me to be applicable not only where ordinary cases are decided, but also where in the case of exercise of extraordinary jurisdiction, orders are passed affecting rights of persons. Section 151, CPC also appears to be based on this general principle. Several High Courts in this country have referred to this Section when they stayed proceedings pending special appeals to the Privy Council. The above observation of Jessel M. R. has been referred to by a Full Bench of the Calcutta High Court in � 5 CWN 781 which case was relied upon by Mookerjee J.'' in the one reported in � ''ILR 40 Calcutta 955''. In this case, the question arose whether the High Court was competent to make an order for stay of proceedings in execution of its decree in view of an application by the judgment-debtor to the Judicial Committee of the Privy Council for special leave to appeal and Mookerjee J. relying on different authorities as well as � 5 CWN 781'' came to the conclusion that the Court had jurisdiction u/s 151.

It is argued that this was the view only of one of the Judges constituting the Full Bench. But then this observation has been followed by two later cases of the Calcutta High Court and to which I shall make references later. A Division Bench of Allahabad High Court in a case reported in � Bahadur Lal Vs. Judges of the High Court stayed the order for the suspension of a vakil till his appeal be disposed of by the Privy Council. Then in � Jewan Ram Gangaram and Co. Vs. Commissioners for Port of Calcutta, it was held that the High Court has jurisdiction u/s 151 to stay its order pending Application for special leave to the Privy Council. These cases cannot be distinguished on the grounds that they were in litigations where (applications for?) special leave were to be filed before the Privy Council; for in a Division Bench case reported in 45 C. W. N. 1023, execution of the proceedings was stayed pending filing of an application to appeal to the Court itself and it was held that it can be done under S.151, CPC There are thus sufficient authorities of High Courts in this country that there is jurisdiction in High Courts to stay their own orders with a view to assure the applicant that his intention to have this case finally adjudicated will be, without fear of the ultimate decision, proving infructuous.

It was argued on behalf of Rani Shankaramma that there are authorities of the Allahabad High Court that new heads cannot be invented for the purposes of exercising powers under Sec. 151, CPC One is a case reported in Lala Atma Ram Vs. Beni Prasad and Others and the othe,r is a Full Bench case of the same Court reported in Mukand Lal Vs. Gaya Prasad and Others . I do not take these authorities as laying down that if an appeal is contemplated by an unsuccessful litigant against an order of the High Court that cannot be stayed. All that the authorities lay down is that for the purposes of the appeal from an order of the High Court proceedings in some other subordinate Court cannot be stayed. In Lala Atma Ram Vs. Beni Prasad and Others Sulaiman C.J. was referring to the stay of a suit in a subordinate Court. Even if the view of the Allahabad High Court be that no stay can be given, I am not prepared to agree with the view having regard to the series of authorities of other High Courts which appear to me to be based on sound principles of administration of justice.

Then it is argued before us that the Mandamus order having been made in exercise of a extraordinary jurisdiction the provisions u/s 151 do not apply to it. When it is established that the jurisdiction to grant the order is judicial and the order is appealable to the Supreme Court, the power of staying proceedings with a view to assure final decision by the ultimate Court cannot be excluded for the principle is one of general application to all judicial orders and the nature of the jurisdiction under (sic) the order is made is not very material. If in the course of disciplinary proceedings an order can be stayed, I do not see oh what grounds I can exclude the principle when Mandamus is issued. Then it was argued that the High Court having framed rules land there being no rule relating to stay no order can be passed. If there be no rule framed the inherent jurisdiction is thereby uncontrolled and should be exercised on principles and precedents.

It was argued that the order has been varied by the stay. I am of opinion that this argument does not carry much weight. It can not be disputed that a decree cannot be varied after it is signed and yet in expectation of an application for leave to appeal to the Supreme Court can be stayed. If such a stay is not $$ation, I do not see how the position is different when a Mandamus order is made. Any argument on the use of the word "writ" is of no importance, for in England every action is commenced by a writ, which means an order in the name of King to appear and answer a particular claim. One of the arguments of the learned Advocate is that in ordering the stay of Mandamus, we were reviewing the order and staying the decision of the Bench Co-ordinate to us, I am afraid that is not a correct description of the legal position. The interim order of maintaining status quo was not an order of review, nor it was a cancellation of an earlier order. It is a temporary relief which the Courts can give in order that leave to appeal to the Supreme Court be filed. If u/s 151, a Division Bench can stay an order in some judicial matter not partaking the nature of Certiorari, I do not see on what basis a status quo order on similar principle can be treated as variation of a writ for Mandamus. In making the order absolute which was passed on August 22, 1952, I am not varying it. I am doing what I would do in any other case where an appeal is contemplated against a judgment and relief is asked for in order to facilitate filing of such application and obtaining of such order.

Now, coming to the merits of the case in the affidavit it is mentioned that the property involved in the case is large. It appears to have been under the Court of Wards ever since the father of Rani Shankaramma died. It is alleged that she is not experienced and there is fear that the property would not be available should the order of the High Court be reversed. Those allegations are not challenged and therefore I accept them. It is true that the lady has been deprived of managing her estate for a long time which should not be continued. But the order that I am passing is only of a very short duration and it will be without prejudice to any order by the Bench to which leave application is presented and to the conclusion that may be reached at relating to the stay order that may then be given. In these circumstances, this consideration would not weigh with me as it would have done had I. been making an order of long duration.

I must add that whatever I have expressed in this judgment is only for the purposes of disposing of this application. I, therefore, agree with my learned brothers Deshpande and Reddy JJ. in the conclusion that they have arrived at and direct stay for a period of ten days from the date of our order of September 4, 1952 given.

P. Jaganmohan Reddy, J.

I entirely agree with the views expressed by my learned brother and the order made by him. Since I was a member of the Division Bench which gave the interim stay on the 22nd of August 1952, I wish to add a few sentences, particularly in view of the trend of arguments before us challenging the power of a Bench of this High Court to grant an interim stay.

The learned Advocate for the Respondent has cited two decisions to which my learned brother has already referred in support of his contention that the High Court has no inherent powers to grant a stay. I wish to add that in the case of � Lala Atma Ram Vs. Beni Prasad and Others the whole question as later pointed out by Sulaiman C.J. in the Full Bench case of � Mukand Lal Vs. Gaya Prasad and Others was whether the High Court apart from any revisional powers conferred under Sec. 115 of the C.P.C. had any inherent powers under Sec. 151, of the C.P.C. to direct the subordinate Courts to do something or not to do something or to act in a particular manner. That in substance was the question before their Lordships of the Allahabad High Court in both the cases and incidentally the question arose whether any such powers have been conferred under Sec. 107, Government of India Act 1915. In the 1934 Allahabad Case, Sulaiman C.J. did not wish to express any definite opinion on that point. A perusal of his judgment in that case would clearly show that he was mostly guided by the merits of the case before him. He says that the facts disclosed no justification for giving a stay to the subordinate Court to stop the trial pending the result of the appeal and proceeds to observe at page 587 that:

the postponement of the hearing of the case would therefore involve some delay and there is a possibility of some oral evidence being lost in the meantime. The only loss which the Defendant can suffer would be the costs incurred by him in defending the case and the time and labour spent. This can be adequately compensated for by an award of costs when the case is finally disposed of.

In the present case, we are not called upon to consider whether we have inherent powers apart from Section 115, C.P.C. to direct any subordinate Court to do or not to do any particular Act. What we have to consider is that pending an appeal can a stay order be given. If there is a right of appeal to the Supreme Court, then the inherent powers of the High Court to order the abeyance of its orders for a limited time cannot be denied.

It has been suggested by the Advocate for the Respondent to this petition that the order of 22-8-52 given by Vithal Rao Deshpande J. and myself was in the nature of an interim relief granted by the issue of one of the appropriate writs under Art. 226 of the Constitution. We are aware of the circumstances in which the Supreme Court in the case of � The State of Orissa Vs. Madan Gopal Rungta, declared the grant of an interim writ of Mandamus under Art. 226 pending the expiry of the period prescribed under Sec. 80 of the C.P.C. for filing a suit, to be invalid and not covered, by Art. 226. A perusal of our order of 22-8-52 would make it abundantly clear that no such interim writ was issued nor for that matter intended to be issued amending, abrogating or in any way nullifying the effect of the order for the issue of a writ of Mandamus passed by another Bench of the High Court on 12-8-

All that was attempted to be done was to hold that order in abeyance temporarily pending the hearing of the arguments by both the parties for the grant of a stay. The circumstances as apparent from the record are that the Bench which issued the original order of directed, on the presentation of this stay petition, to have it placed before any other Bench. Consequently, a Bench consisting of my brother Vithal Rao Deshpande and myself was constituted and the matter came up before us. In view of the urgency alleged in the affidavit accompanying the petition of the applicant an order for maintaining the status quo was passed by us, although it was our view that such an order generally would best have been passed after hearing both the parties. But as the affidavit alleged that the writ of Mandamus would be given immediate effect to by the Court of Wards by the release of the estate, interests of justice required that a temporary stay should be granted. The Supreme Court in the above referred case of the � The State of Orissa Vs. Madan Gopal Rungta, at page 14 after discussing the grant of interim relief under Art. 226 of the Constitution observed that:

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.

The words "final determination" of rights in a suit or proceedings can either relate to the determination by the High Court of such rights limiting its power to the grant of interim relief until the final issue of an appropriate writ or until the filing of an appeal or until its final disposal when filed. In either case, there is no warrant for the assumption that the High Court has no incidental or ancillary power to grant interim relief as has been submitted by the Respondent''s Advocate. In the words of Cotton L. J. in � ''Polini v. Gray 12 Ch D 438 :

When there is an appeal about to be prosecuted the litigation is to be considered as not at an end, and that being so, if there is a reasonable ground of appeal, and if not making the order to stay the execution would make the appeal nugatory, that is to say, would deprive the Appellant, if successful, of the results of the appeal, then it is the duty of the Court to interfere and suspend the right of the party who, so far as litigation has gone, has established his rights.

As such the High Court has inherent powers to give interim stay in such circumstances.

There is again the further contention of the Respondent''s Advocate that since the writ is a peremptory order, it is only the Bench that passed the original order which can stay the writ and no other Bench has jurisdiction to entertain such an application. No authority has been cited for this proposition which appears to me to be merely an ''ipse dixit''. A writ is issued by the High Court of a State under Art. 226 and consequently any orders of stay of the operation of any writ pending appeal or disposal of a stay petition will also be those of the High Court. Such orders of. the High Court are passed by any Bench to which such applications are posted by orders of the Chief Justice in accordance with the High Court Act. In these circumstances where any Bench which has passed the original order for the issue of a writ cannot be constituted either by reason of one or both of the learned Judges not being available or as in this case where they have directed the petition to be placed before any other Bench, such Bench as may be constituted will have jurisdiction to pass such orders as it thinks fit. To hold otherwise would be to admit that no relief could be granted to a person aggrieved who wants to go in appeal merely because the original Bench cannot be constituted.

For the aforesaid reasons, I agree with the order proposed by my learned brother.