Appeal Against Ad-Interim Order In A Pending Writ Petition Not Maintainable: Kerala High Court

The Kerala High Court recently reaffirmed that an appeal to a Division Bench cannot lie against an ad interim order passed by a Single Judge when the main writ petition is still pending before the Judge. 

A Division Bench of Justices P.B. Suresh Kumar and C.S. Sudha while dismissing such an appeal, remarked:

"...according to us, such orders cannot be impugned in an appeal under Section 5(i) of the Act, for if appeals against such orders are entertained, the appellate court would be usurping the original jurisdiction of this Court under Article 226 of the Constitution." 

The impugned ad interim order was passed by a single judge when the petition came up for admission. The normal course of action when the opposite party wants to object to the same is to move the same bench for vacating or varying the order. 

However, in an unusual move, the appellants herein preferred an appeal before a Division Bench under Section 5 of the Kerala High Court Act, 1958.

Their contention was that despite filing counter affidavits and entering appearance, the Single Judge continued to extend the impugned order. 

When asked to justify the maintainability of the appeal, they relied on K.S.Das v. State of Kerala [1992 (2) KLT 358] where it was held that an appeal can be filed against an interlocutory order passed in a writ petition.

However, the decision had particularly emphasised that such orders should not be ad interim orders or orders merely of a procedural nature.

The appellant's argument here was that if the ad interim order was contrary to law, perverse or causes serious prejudice to the parties, an appeal would be maintainable as per the decision.

However, the Court took the stand that a close reading of the above case would show beyond doubt that a Division Bench hearing the appeal against such orders is not bound to admit the appeal, modify the impugned order, or set it aside in every case.

The Court also observed:

"...it can be seen without any doubt that in order to be qualified for a challenge under Section 5(i) of the Act, the order shall be conclusive at least as to any of the subordinate matters with which it deals."

In the case at hand, it was evident that an ad interim order was passed in the matter as the Single Judge found it necessary to pass such an order to protect the interest of the petitioner in the writ petition.

An order of this nature cannot be understood, at any rate, as conclusive as to any matter, main or subordinate, the Court said. This implies:

"...the character of the ad interim order would continue to be the same until an adjudication is made by the Court, at least for the interlocutory purpose, irrespective of the fact as to whether the opposite side had entered appearance."  

If that be so, the Court held that such orders cannot be impugned in an appeal under Section 5(i) of the 1958 Act, for if appeals against such orders are entertained, the appellate court would be usurping the original jurisdiction of this Court under Article 226 of the Constitution.

Accordingly, the appeal was dismissed as not maintainable. 

Advocates S.Nidheesh and C.S. Manilal appeared for the appellants while the respondents were represented by Advocate Denu Joseph and Senior Governmet Pleader T.K. Vipindas. 

Case Title: P.T Thomas & Anr v. Bijo Thomas & Ors.

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