This article is written by Ankur Kumar, here he has discussed the Interlocutory Applications and orders under Civil Procedure.
Introduction
To meet the ends of justice and to render timely justice to the parties, the mechanism of filing Interlocutory applications is to an extent indispensable in civil proceedings.
“Interlocutory application” means an application to the Court in any suit, appeal or proceeding already instituted in such Court, other than a proceeding for execution of a decree or order. The orders which are passed in those applications are called as interlocutory orders[1]. Webster’s New World Dictionary defines ‘interlocutory’ as order other than a final decision. Once an action has been commenced all subsequent applications are referred to as interlocutory applications.
The prerogative of a court while dealing with an interlocutory application is not to delve into serious questions of law which demands detailed arguments and serious consideration and therefore the courts do not go into the facts the resolution of which might end up in the determination of the original suit.
The provision dealing with the incidental proceedings is contained under part III Of the code of civil procedure[2]. But such applications are moved under various provisions of the Code of civil procedure, 1908 which include applications for appointment of Commissioner, Temporary Injunctions, Receivers, payment into court, security for cause, and etc. In fact, there are in total of 382 different nomenclature of interlocutory applications, as provided on the Hon’ble Supreme court’s website[3].
Sec 141 of CPC provides, that the procedure provided in the Code of Civil Procedure, in regard to suit shall be followed, as far as it can be made applicable, in all proceedings in any court of civil jurisdiction, therefore the procedure with regard to such applications is the same as that of original suit, in matters like recording of evidence, examining witnesses etc.
In this write-up, an attempt has been made to cover various aspects of Interlocutory applications and orders passed pursuant to such applications. It discusses various provisions under the C.P.C and by referring to various judgments it tries to elucidate upon the current position of law.
Interlocutory applications for Amendment in pleadings
Principles which govern the granting or disallowing of amendments under Order 6 Rule 17 CPC was discussed in North Eastern Railway Administration, Gorakhpur v.Bhagwan Das[4]. The court, in this case, stated that Order 6 Rule 17 of the C.P.C postulates amendment of pleadings at any stage of the proceedings.
Further in Pirgonda Hongonda Patil v. Kalgonda Shidgonda Patil[5] which still holds the field, it was held that;
“ all amendments ought to be allowed which satisfy the two conditions:
- of not working injustice to the other side, and
- of being necessary for the purpose of determining the real questions in controversy between the parties.
Amendments should, therefore, be refused only where the other party cannot be placed in the same position as if the pleading had been originally correct, but the amendment would cause him an injury which could not be compensated in costs.”
Although Order VI Rule 17 permits amendment in the pleadings “at any stage of the proceedings”, but a limitation has been embedded by means of the proviso to the fact that no application for amendment shall be allowed after the trial is commenced. Reserving the Court’s jurisdiction to order for allowing the party to amend pleading on being satisfied that in spite of due diligence the parties could not have raised the matter before the commencement of trial[6].
Order 6 Rule 17 consists of two parts. Whereas the first part is discretionary (may) and leaves it to the court to order the amendment of pleading. The second part is mandatory (shall) and prompts the court to allow all amendments which are necessary for the purpose of determining the real question in controversy between the parties.[7]
The proviso, therefore, to an extent has curtailed absolute discretion to allow amendment at any stage[8].
Interlocutory Application at the stage where a case is posted for judgment
In Laxminarayan Enterprises vs Laxminarayan Textile[9] the learned single judge of Karnataka High court allowed the applications under Sub-Rule (4) of Order XVIII and Order IX Rule 6 C.P.C and observed that the Court may for the reasons to be recorded, direct or permit any party to examine any witness at any stage.
But after the CPC (Amendment) Act, 1999, Sec 17-A of order XVIII was omitted which allowed the production of evidence at any stage. The decision rendered by the division bench of the Karnataka High court in Rabiya Bi Kassim M Vs. The Country-Wide Consumer Financial Service Ltd[10] has settled the position with respect to the production of evidence at any stage of the proceedings. Once the matter has been finally heard and posted for judgment, as held by the Supreme Court in Arjun Singh vs Mohindra Kumar[11] nothing is required to be done by the Court except to pronounce the judgment, and therefore the decision in Laxminarayan enterprises’ has become a nullity.
Application of ‘Res judicata’ in interlocutory applications
As an interlocutory application does not encroach upon the merits of the controversy between parties an order pursuant to such applications cannot be regarded as a matter affecting the trial of the suit.
An interlocutory order in like of an issue of injunction, or appointment of a receiver, or an order of attachment before judgment cannot be viewed as an issue affecting the trial of the suit. Therefore where the question arose that whether adding a defendant to suit by amending the pleadings was a matter affecting the trial of the suit, the Hon’ble Rajasthan High Court stated that “Such an order could not be taken to be a step in the trial of the suit. Whether a party should or should not be impleaded did not encroach on merits of the controversy between parties. It is a matter of a formal nature and could not in any way determine their respective rights[12]”
Until and unless the issue is not decided on merits, the plea of principles of res judicata has no application, as per the judgment reported in Erach Boman Khavar vs Tukaram Sridhar Bhat & Ors, wherein the Hon’ble Supreme Court held as follows:
“It is clear as crystal that to attract the doctrine of res judicata it must be manifest that there has been a conscious adjudication of an issue. A plea of res judicata cannot be taken the aid of unless there is an expression of an opinion on the merits. It is well settled in law that principle of res judicata is applicable between the two stages of the same litigation but the question or issue involved must have been decided at an earlier stage of the same litigation.”
An order staying the suit under Section 10, C.P.C. does not prevent the Court from making interlocutory orders such as orders for a Receiver or an injunction or an order for attachment before judgment[14].
As the interlocutory orders do not decide any matter in issue arising in the suit nor do they put an end to the litigation and do not decide the legal rights of the parties to the litigation, the principle of res judicata does not apply to the findings on which these orders are based. If a similar application is made for similar relief on the basis of same facts after the earlier application has been disposed of, the court would be justified in rejecting the application as an abuse of process of the court. But when there are changed circumstances the court is perfectly justified in entertaining a second application[15].
Interlocutory orders
Interlocutory orders are passed by the courts to prevent irreparable harm from occurring to a person or property during the pendency of a lawsuit or proceeding.
Rules 6 to 10 of Order 39 mention certain interlocutory orders[16], which include the court’s power to order the interim sale of movable property, to order the detention, preservation or inspection of any property which is the subject-matter of such suit. Similarly, when the land in the suit is liable to Government revenue or is tenure liable to the sale and the party in possession neglects to pay the revenue or rent, the court may order any other party to the suit in case of sale of the land to be put in immediate possession of the property.
Revision of Interlocutory orders
The 1999 amendment to the CPC added a proviso to Section 115 which reads:
“Provided that the High Court shall not, under this Section, vary or reverse any order made, or any order deciding an issue, in the course of a suit or other proceeding, except where the order, if it had been made in favor of the party applying for revision, would have finally disposed of the suit or other proceedings.”
In Tek Singh vs. Shashi Verma[17], the interlocutory application filed under Order 39 Rule 1 CPC was dismissed by Trial Court holding that the relief asked for could not be granted as it would amount to decreeing the Suit itself. The Appellate Court dismissed the appeal and in the revision petition filed under Section 115 CPC, the High Court set aside the concurrent findings of fact and allowed it. The Supreme court set aside the ruling of the appellate court observing that “every legal canon has been thrown to the winds by the impugned judgment” and restored the judgment of the Courts below.
Therefore the position of law is well settled and hence, revision petitions can lie against an interlocutory order with the sole purpose to correct jurisdictional errors only[18].
Therefore an order granting or refusing to grant amendment of pleadings is not revisable under Section 115 of the Code of Civil Procedure, particularly after its amendment in the year 2002[19].
Appeals against interlocutory orders
Generally speaking, no appeal lies against an interlocutory order, but certain interlocutory orders can still be challenged in appeal against decree on the ground that such orders are of such character as would alter the decision of the court on merits and hence, can be challenged.
Section 105 reads as:-“Save as otherwise expressly provided no appeal shall lie from any order made by a court in the exercise of its original or appellate jurisdiction, but, where a decree is appealed from, any error, defect or irregularity in any order affecting the decision of the case, may be set forth as a ground of objection in the memorandum of appeal.”[20]:
While the first part of the sub-section states that no appeal would lie against any order unless they fall into any of the provisions contained in Section 104 and Order 43, R. 1 the second part states that objections can be raised against the interlocutory order in the memorandum of appeal filed against the decree in the suit in which the interlocutory order was made, if the error, defect or irregularity in making the same affects the decision of the case on the merits.
The error, defect or irregularly within the meaning of Section 105, therefore, must mean an error, defect or irregularity in procedure in law and not in a matter of fact.
Appeal under latter patents
Clause 15 of Letters Patent [21] provides for intra-court appeals against the judgment of Single Judge of the High Court. The right to file an L.P.A depends upon whether or not the decision of the Single Judge appealed from affects the merits of the question between the parties and their valuable rights.
Order must be a ‘Judgement’
In order to ascertain whether an order to is a ‘judgment’ or an ‘interlocutory order’, it must of the parties have an effect of affecting the rights of the parties and further, it would also depend on whether or not, it has finally decided the rights. For an order to be a ‘judgment’, it is not always necessary that it should put an end to the controversy or terminate the suit. An ‘interlocutory order’ determining the rights of the parties in one way or other is also a ‘judgment’.
In Life Insurance Corporation of India vs Sanjeev builders Pvt. Ltd. and ors[22]., the court held that the order allowing the application[23] impleading respondent as assignee after 27 years of the filing of the suit vitally affects the valuable rights of the appellant. The order allowing amendment of the plaint by impleading respondent No.3 as ‘Plaintiff No.3’ decides a vital question which concerns the rights of the parties and hence is a ‘judgment‘ to maintainable under the Letters Patent Appeal.
Further, in Shah Babulal Khimji v. Jayaben D. Kania and Anr[24], the above point was reiterated as the Hon’ble court observed that ‘whenever a trial Judge decides a controversy which affects valuable rights of one of the parties, it must be treated to be a judgment within the meaning of the letters patent’.
In the course of the trial a trial Judge may pass a number of orders whereby some of the various steps to be taken by the parties in prosecution of the suit may be of a routine nature while other orders may cause some inconvenience to one party or the other, e.g., an order refusing an adjournment, an order refusing to summon an additional witness or documents, an order refusing to condone delay in filing documents, after the first date of hearing an order of costs to one of the parties for its default or an order exercising discretion in respect of a procedural matter against one party or the other.
It was thus held that –
“Such orders are purely interlocutory and cannot constitute judgments because it will always be open to the aggrieved party to make a grievance of the order passed against the party concerned in the appeal against the final judgment passed by the trial Judge[25]”
Interlocutory applications – an inbuilt mechanism to cause the delay?
Delay in dispensing justice is a malaise that has frustrated the judiciary of this country and which has created a considerable outcry from the diligent litigants, stay of proceedings is one of the specially inbuilt delay mechanisms in civil cases.
The delay is oftentimes due to protracted arguments on interlocutory applications. This practice ends up affecting the original suit and therefore speedy disposal ends up becoming a farce as the courts keep on entertaining endless arguments on motions for interim reliefs.
The practice of filling I.As has become a matter of routine for the lawyers and is resorted to many a time to thwart the proceedings in a suit or to evade the compliance of any order passed against such party. There is an umpteen number of cases where unscrupulous litigants take undue advantage by invoking the jurisdiction of the Court by Filing interlocutory applications. Frivolous litigation clogs the wheels of justice making it difficult for the courts to provide speedy justice to the genuine litigants. A lot of judgments or orders of the Court are not permitted to acquire finality. It is one of the serious issues concerning the sanctity and credibility of the judicial system in general.
Frivolous applications and sanctions attached against it
The present system of imposing meager costs in civil matters, no doubt, is wholly unsatisfactory and does not act as a deterrent to tactics like “buying-time”, or evading compliance of court orders. More realistic approach relating to costs may be the need of the hour[26].
The law commission of India in its report[27] had proposed amendments in CPC to curb such practice by imposing heavy costs on such applicants.
“Section 35A (Compensatory costs for false or vexatious claim/defense) should be recast as set out in paragraph 8.19 to have a better check against false and frivolous litigation. The thrust of the proposed amendment is to raise the ceiling from Rupees three thousand to Rupees One lakh “
An important principle was laid down in Grape vs. Loam[28] and is still followed even now in the United Kingdom in recent cases. The headnote in the above case reads thus: “Repeated frivolous applications for the purpose of impeaching a judgment having been made by the same parties, the Court of Appeals made an order prohibiting any further application without leave of the Court.
Even the law commission has tried to address the growing menace of vexatious litigations[29] in the high courts and courts subordinate to high courts. The Law Commission on ‘Prevention of Vexatious Litigation’ in our High Courts and Courts subordinate to the High Courts. Earlier, a law on this subject was enacted in the former State of Madras[30] and has been in force as the, and also in the State of Maharashtra[31] wherein it is called the 1971 but similar enactments have not been enacted in the other States.
There are not much of riders on such unscrupulous litigants as even if a party doesn’t appear on the fixed date, and therefore arrives late he is still entitled to have his suit or application restored upon showing sufficient cause or on payment of costs[32].
The practice of filing frivolous applications is not just limited to ordinary litigants but the same is also done by people occupying high posts. Another example of obstructive litigation undertaken to avoid responsibility is one of the then Chief Minister of Bihar, Mr. Nitish Kumar. An interlocutory application was filed in a copyright infringement suit by Nitish Kumar under Order I Rule 10(2) of the Code of Civil Procedure, 1908, seeking to strike off his name from the array of Defendants, the Delhi High Court finding the application frivolous had imposed cost of Rs.20,000 on the Bihar Chief Minister for filing the application[33].
Repeated interlocutory applications is clearly an abuse of the process of law and would have the far-reaching adverse impact on the dispensation of justice.
Indian Council for Enviro-Legal Action Vs UOI and ors
A classic example of keeping the litigation alive by filing I.As can be found in the case of Indian Council for Enviro-Legal Action Vs UOI and others.[34] Very strange and extraordinary litigation where even after fifteen years of the final judgment of the court the litigation was intentionally kept alive by filing one interlocutory application or the other in order to avoid compliance of the judgment. The applicants in this case through Interlocutory Applications tried to evade the payment of the amounts as remedial measures by reopening issues already settled by the Hon’ble Supreme court. Therefore the court on finding these interlocutory applications being totally devoid of any merit accordingly dismissed with costs of Rs. 10 lakhs in both the Interlocutory Applications[35].
[1] The Civil Rules of Practice and Circular Orders, Rule 2 (J)
[2] Section 75 to 78 of the C.P.C deals with incidental proceedings
[3] https://www.sci.gov.in/interlocutary-application
[4] North Eastern Railway Administration, Gorakhpur v. Bhagwan Das, (2008) 8 SCC 511
[5] Pirgonda Hongonda Patil v. Kalgonda Shidgonda Patil, 1957 AIR 363
[6] Mohinder Kumar Mehra vs Roop Rani Mehra A.I.R 2017 S.C 5822
[7] Rajesh Kumar Aggarwal & Ors. Vs. K.K. Modi & Ors. (2006) 4 SCC
[8] Salem Advocate Bar Association, T.N. v. Union of India, (2005) 6 SCC 344
[9] Laxminarayan Enterprises v. Laxminarayan Textile ILR 2000 KAR 820
[10] Rabiya Bi Kassim M v. The Country-Wide Consumer Financial Service Ltd 2004 (4) KLJ 189
[11] Arjun Singh v. Mohindra Kumar 1964 SCR (5) 946
[12] Surendra Sawhney v. Murlidhar and Ors. 2007 (3) ILR (Raj) 693
[13] Erach Boman Khavar v. Tukaram Sridhar Bhat & Ors AIR 2014 SC 544
[14] Amita Kaushish and Ors. v. Sanjay Kaushish and Ors. JIT 1995 (8) SC 50
[15] ibid
[16] Code of Civil Procedure, 1908.
[17] Tek Singh v. Shashi Verma, AIR (2019) SC 1047.
[18] D.L.F. Housing & Construction Company Private Ltd. v. Sarup Singh and Others (1970) 2 SCR 368
[19] Bhaskaran Nair v. Chandramathiyamma 2006 (1) KLT 533
[20] Section 105 of the Code of Civil Procedure, 1908
[21] Clause 15 – Appeal from the courts of original jurisdiction to the High Court in its appellate jurisdiction
[22] Life Insurance Corporation of India v. Sanjeev builders Pvt. Ltd.and others, 2018 (2) CDR 344 (SC)
[23] Order XXII Rule 10 CPC
[24] Shah Babulal Khimji v. Jayaben D. Kania and Anr. (1981) 4 SCC 8
[25] ibid
[26] Ashok Kumar Mittal v. Ram Kumar Gupta (2009) 2 SCC 656.
[27] ‘Costs in Civil Litigation’ Report No.240
[28] Grape v. Loam: (1879) 39 Ch. D. 168
[29] Law Commission of India 192nd report on “PREVENTION OF VEXATIOUS LITIGATION”, June 2005
[30] Madras Vexatious Litigation (Prevention) Act, 1949
[31] Maharashtra Vexatious Litigation (Prevention) Act
[32] Chhotalal v Ambalal Hargovan AIR 1925 BOM 423
[33] Atul Kumar Singh v Nitish Kumar and others. order dated, 2/08/2017
[34] Indian Council for Enviro-Legal Action Vs Union of India (UOI) and others. (2012) 1CompLJ 360 (SC)
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