We are constrained to pen down a more detailed
order as the judgment of this Court in Asian
Resurfacing of Road Agency’s case (supra) is sought
to be relied upon by difference courts even in
respect of interim orders granted by this Court
where the period of 6 months has expired. Such a
course of action is not permissible and if the
interim order granted by this Court is not vacated
and continues beyond a period of 6 months by reason
of pendency of the appeal, it cannot be said that
the interim order would automatically stand vacated.
Thus, the interim order granted by this Court
on 20th March, 2009 must continue to be in force
till the appeal is decided.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
I.A. NO . 27524 OF 2019
IN
CIVIL APPEAL No(s). 6088 OF 2011
FAZALULLAH KHAN Vs M.AKBAR CONTRACTOR
Dated: JULY 22, 2019.
O R D E R
This Court in terms of the judgment in Asian
Resurfacing of Road Agency Private Limited and Anr.
vs. Central Bureau of Investigation 2018(16) SCC 299
while dealing with the issue of speedy trial in
criminal cases observed in para 34 as under:
“If contrary to the above law, at the stage
of charge, the High Court adopts the approach
of weighing probabilities and re-appreciating the
material, it may be certainly a time consuming
exercise. The legislative policy of expeditious
final disposal of the trial is thus, hampered.
Thus, even while reiterating the view that there
is no bar to jurisdiction of the High Court to
consider a challenge against an order of framing
charge in exceptional situation for correcting a
patent error of lack of jurisdiction, exercise of
such jurisdiction has to be limited to
rarest of rare cases. Even if a challenge to
order framing charge is entertained, decision of
such a petition should not be delayed. Though no
mandatory time-limit can be fixed, normally it
should not exceed two-three months. If stay is
granted, it should not normally be unconditional
or of indefinite duration. Appropriate conditions
may be imposed so that the party in whose favour
stay is granted is accountable if court finally
finds no merit in the matter and the other side
suffers loss and injustice. To give effect to the
legislative policy and the mandate of Article 21
for speedy justice in criminal cases, if stay is
granted, matter should be taken on day-to-day
basis and concluded within two- three months.
Where the matter remains pending for longer
period, the order of stay will stand vacated on
expiry of six months, unless extension is
granted by a speaking order showing
extraordinary situation where continuing stay was
to be preferred to the final disposal of trial by
the trial Court. This timeline is being fixed in
view of the fact that such trials are expected to
be concluded normally in one to two years.
The scope of the directions were expanded to
an extent to all civil and criminal cases, on
account of said proceedings being held up while
observing as under:
“In view of the above, situation of proceedings
remaining pending for long on account of stay needs
to be remedied. Remedy is required not only for
corruption cases but for all civil and criminal
cases where on account If stay, civil and criminal
proceedings are held up. At times, proceedings are
adjourned sine die on account of stay. Even after
stay is vacated, intimation is not received and
proceedings are not taken up. In an attempt to
remedy this, situation, we consider it appropriate
to direct that in all pending cases where stay
against proceedings of a civil or criminal trial is
operating, the same will come to an end on expiry
of six months from today unless in an exceptional
case by a speaking order such stay is extended.
In cases where stay is granted in future, the same
will end on expiry of six months from the date of
such order unless similar extension is granted by a
speaking order. The speaking order must show that
the case was of such exceptional nature that
continuing the stay was more important than having
the trial finalized. The trial Court where order of
stay of civil or criminal proceedings is produced,
may fix a date not beyond six months of the order
of stay so that on expiry of period of stay,
proceedings can commence unless order of extension
of stay is produced.”
In the present case, the issue is of specific
performance of an agreement which was granted by the
first appellate court. The appellant is a tenant in
the suit premises in whose favour the decree has
been passed. The second appellate court reversed
the decree. Leave has been granted by this court
and the interim protection was granted on 20th
March, 2009.
Learned counsel for the appellant submits that
relying on the aforesaid judgment of this court in
Asian Resurfacing of Road Agency’s case (supra) in
the eviction proceedings against the appellant as a
tenant, the revisional court seeks to proceed on the
basis of a submission of the respondents that on the
expiry of period of six months, the interim stay is
no more in force. He further states that the
appellant undertakes before this court that if he
loses in the present appeal, he will hand over
vacant and peaceful possession within a time to be
fixed by the Court without any further objection.
We are constrained to pen down a more detailed
order as the judgment of this Court in Asian
Resurfacing of Road Agency’s case (supra) is sought
to be relied upon by difference courts even in
respect of interim orders granted by this Court
where the period of 6 months has expired. Such a
course of action is not permissible and if the
interim order granted by this Court is not vacated
and continues beyond a period of 6 months by reason
of pendency of the appeal, it cannot be said that
the interim order would automatically stand vacated.
Thus, the interim order granted by this Court
on 20th March, 2009 must continue to be in force
till the appeal is decided.
The aforesaid observation made by us should be
kept in mind by both the trial Court and the High
Court while dealing with this aspect.
The application accordingly stands disposed
of.
The appeal being of the year 2011 is set down
for hearing in the week commencing 20th August,
2019.
................J.
(SANJAY KISHAN KAUL)
................J.
(K.M. JOSEPH)
NEW DELHI;
JULY 22, 2019
order as the judgment of this Court in Asian
Resurfacing of Road Agency’s case (supra) is sought
to be relied upon by difference courts even in
respect of interim orders granted by this Court
where the period of 6 months has expired. Such a
course of action is not permissible and if the
interim order granted by this Court is not vacated
and continues beyond a period of 6 months by reason
of pendency of the appeal, it cannot be said that
the interim order would automatically stand vacated.
Thus, the interim order granted by this Court
on 20th March, 2009 must continue to be in force
till the appeal is decided.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
I.A. NO . 27524 OF 2019
IN
CIVIL APPEAL No(s). 6088 OF 2011
FAZALULLAH KHAN Vs M.AKBAR CONTRACTOR
Dated: JULY 22, 2019.
O R D E R
This Court in terms of the judgment in Asian
Resurfacing of Road Agency Private Limited and Anr.
vs. Central Bureau of Investigation 2018(16) SCC 299
while dealing with the issue of speedy trial in
criminal cases observed in para 34 as under:
“If contrary to the above law, at the stage
of charge, the High Court adopts the approach
of weighing probabilities and re-appreciating the
material, it may be certainly a time consuming
exercise. The legislative policy of expeditious
final disposal of the trial is thus, hampered.
Thus, even while reiterating the view that there
is no bar to jurisdiction of the High Court to
consider a challenge against an order of framing
charge in exceptional situation for correcting a
patent error of lack of jurisdiction, exercise of
such jurisdiction has to be limited to
rarest of rare cases. Even if a challenge to
order framing charge is entertained, decision of
such a petition should not be delayed. Though no
mandatory time-limit can be fixed, normally it
should not exceed two-three months. If stay is
granted, it should not normally be unconditional
or of indefinite duration. Appropriate conditions
may be imposed so that the party in whose favour
stay is granted is accountable if court finally
finds no merit in the matter and the other side
suffers loss and injustice. To give effect to the
legislative policy and the mandate of Article 21
for speedy justice in criminal cases, if stay is
granted, matter should be taken on day-to-day
basis and concluded within two- three months.
Where the matter remains pending for longer
period, the order of stay will stand vacated on
expiry of six months, unless extension is
granted by a speaking order showing
extraordinary situation where continuing stay was
to be preferred to the final disposal of trial by
the trial Court. This timeline is being fixed in
view of the fact that such trials are expected to
be concluded normally in one to two years.
The scope of the directions were expanded to
an extent to all civil and criminal cases, on
account of said proceedings being held up while
observing as under:
“In view of the above, situation of proceedings
remaining pending for long on account of stay needs
to be remedied. Remedy is required not only for
corruption cases but for all civil and criminal
cases where on account If stay, civil and criminal
proceedings are held up. At times, proceedings are
adjourned sine die on account of stay. Even after
stay is vacated, intimation is not received and
proceedings are not taken up. In an attempt to
remedy this, situation, we consider it appropriate
to direct that in all pending cases where stay
against proceedings of a civil or criminal trial is
operating, the same will come to an end on expiry
of six months from today unless in an exceptional
case by a speaking order such stay is extended.
In cases where stay is granted in future, the same
will end on expiry of six months from the date of
such order unless similar extension is granted by a
speaking order. The speaking order must show that
the case was of such exceptional nature that
continuing the stay was more important than having
the trial finalized. The trial Court where order of
stay of civil or criminal proceedings is produced,
may fix a date not beyond six months of the order
of stay so that on expiry of period of stay,
proceedings can commence unless order of extension
of stay is produced.”
In the present case, the issue is of specific
performance of an agreement which was granted by the
first appellate court. The appellant is a tenant in
the suit premises in whose favour the decree has
been passed. The second appellate court reversed
the decree. Leave has been granted by this court
and the interim protection was granted on 20th
March, 2009.
Learned counsel for the appellant submits that
relying on the aforesaid judgment of this court in
Asian Resurfacing of Road Agency’s case (supra) in
the eviction proceedings against the appellant as a
tenant, the revisional court seeks to proceed on the
basis of a submission of the respondents that on the
expiry of period of six months, the interim stay is
no more in force. He further states that the
appellant undertakes before this court that if he
loses in the present appeal, he will hand over
vacant and peaceful possession within a time to be
fixed by the Court without any further objection.
We are constrained to pen down a more detailed
order as the judgment of this Court in Asian
Resurfacing of Road Agency’s case (supra) is sought
to be relied upon by difference courts even in
respect of interim orders granted by this Court
where the period of 6 months has expired. Such a
course of action is not permissible and if the
interim order granted by this Court is not vacated
and continues beyond a period of 6 months by reason
of pendency of the appeal, it cannot be said that
the interim order would automatically stand vacated.
Thus, the interim order granted by this Court
on 20th March, 2009 must continue to be in force
till the appeal is decided.
The aforesaid observation made by us should be
kept in mind by both the trial Court and the High
Court while dealing with this aspect.
The application accordingly stands disposed
of.
The appeal being of the year 2011 is set down
for hearing in the week commencing 20th August,
2019.
................J.
(SANJAY KISHAN KAUL)
................J.
(K.M. JOSEPH)
NEW DELHI;
JULY 22, 2019
No comments:
Post a Comment