# Iqbal Husain v. District Judge, Moradabad and others

- **Citation:** (2002) 3 ILRA 741
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2002-09-24
- **Case number:** In Civil Misc. Writ Petition No. 22025 of 2001
- **Bench:** V. M. Sahai
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/iqbal-husain-v-district-judge-moradabad-and-others-39957
- **Pages:** 4

## Headnote

Rules-Rule
13
and
14
Practice and procedure Time Bound Stay
order whether the extension application
can be decided by the same Bench who
passed the stay order or by any judge - if
the order passed after hearing to both
parties- The essential order be passed by
the same Judge if available- in otherwise
case shall not be treated tied up can be
entertained by any judge sitting in
appropriate Bench.

Held- Para 7

Already
held
that
in
such
cases
application for extension of stay if not
maintainable. But fresh application for
stay can be filed. The question is
whether such application can be decided
by any judge or it can be listed only
before the judge who gr4anted time
bound stay order. For this purpose the
two rules are to be so read as to operate
harmoniously. In my opinion, in all such
cases where interim order is granted
after hearing, may be standing counsel
only, it would not be an ex party order
and if the interim order is time bound
etc. it ceases to be operative for any of
the reasons then the remedy of the
petitioner would be to move fresh
application for stay and it whould be
listed before the same judge who had
passed the interim order unless he is not
available.
1994 (i) ALR 32
1998 (c) AIRC-526
1998 (c) ESC-367
2001(f) UPLBEC -693
1992 (2) SCC-644

## Text

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3 All] Iqbal Husain V. District Judge, Moradabad and others
741
REVISIONAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 24.09.2002.

BEFORE
THE HON'BLE V. M. SAHAI, J.

Civil Misc. Stay Extension Application
80063 of 2002
In
Civil Misc. Writ Petition No. 22025 of 2001

Iqbal Husain

...Petitioner
Verses
District Judge, Moradabad and others

 ...Respondents

Counsel for the Appellants:
Sri Vikram gulati
Sri A.K. Rai
Sri S.N. Singh

Counsel for the Respondents:
Sri Madhur Prakash
S.C.

High
Court
Rules-Rule
13
and
14
Practice and procedure Time Bound Stay
order whether the extension application
can be decided by the same Bench who
passed the stay order or by any judge - if
the order passed after hearing to both
parties- The essential order be passed by
the same Judge if available- in otherwise
case shall not be treated tied up can be
entertained by any judge sitting in
appropriate Bench.

Held- Para 7

Already
held
that
in
such
cases
application for extension of stay if not
maintainable. But fresh application for
stay can be filed. The question is
whether such application can be decided
by any judge or it can be listed only
before the judge who gr4anted time
bound stay order. For this purpose the
two rules are to be so read as to operate
harmoniously. In my opinion, in all such
cases where interim order is granted
after hearing, may be standing counsel
only, it would not be an ex party order
and if the interim order is time bound
etc. it ceases to be operative for any of
the reasons then the remedy of the
petitioner would be to move fresh
application for stay and it whould be
listed before the same judge who had
passed the interim order unless he is not
available.
1994 (i) ALR 32
1998 (c) AIRC-526
1998 (c) ESC-367
2001(f) UPLBEC -693
1992 (2) SCC-644

(Delivered by Hon'ble V.M. Sahai.J)

1. The short questions that arise for
consideration in this application are, what
is the effect of time bound stay order?
Whether a time bound stay order can be
extended after its expiry ?

2. The brief facts are that the
predecessor of the respondents filed a suit
for arrears of rent and ejectment against
Rijwan, which was decreed ex parte on
28.4.1993. Revision filed by Rijwan was
also dismissed on 24.2.1997. In execution
the petitioner filed objection under Order
XXI Rule 97, 98 and 101 read with
section 151 C.P.C. The objection was
allowed on 28.5.2000 and execution was
rejected
by
the
trial
court.
The
respondents filed an appeal and revision,
which were allowed by a common order
on 10.5.2001 the petitioner challenged the
order dated 10.5.2001 by filing the instant
writ petition. This court on 8.6.2001
granted interim order and stayed the
operation of the impugned judgment till
the next date of listing and directed the
matter to be listed in the third week of
July 2001. On 18.7.2001 this court
extended the stay order passed on
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742 INDIAN LAW REPORTS ALLAHABAD SERIES [2002
8.6.2001 till 31.8.2001. The petitioner
moved another application for extension
of stay on 30.4.2002, stating that the court
ordered on 18.7.2001 to list this case in
the week commencing 20.8.2001 but the
case could not be listed and thereafter
there was strike of lawyers in the High
Court. It is prayed that the stay order
dated 8.6.2001 as extended on 18.7.2001
be extended.

3. I have heard Shri Vikram Gulati,
learned counsel for the petitioner and Shri
Madhur
Prakash,
learned
counsel
appearing for respondents and standing
counsel.

4. The question is as to what is the
effect of time bound stay order? I have
given my anxious consideration to the
question.
Learned
counsel
for
the
petitioner has placed reliance on the
decisions of this court in Ashiq Ali V.
Mohd. Shakeel and others 1985 (3)
Lucknow Civil Decisions 362; Shamboo
Nath Singh Yadav v. State of U.P. 1994
(1) ALR 32; Ram Abilash Mishra v.
Cane Commissioner and others 1998 (1)
ESC 367 and Vishnu Dutt Sharma and
others v. Regional Joint Director of
Education, Agra and others 2001 (1)
U.P.L.B.E.C. 693 wherein it has been
held that time bound interim order passed
either till the next date of listing or for a
fixed period would not exhaust or expire
on the date fixed by the court . Even if the
matter is listed and the case is not taken
up the stay order will continue till the
court applies its mind to the case. In Dr.
Luis Proto Barbosa v. Union of India and
others 1992 Supp (2) SCC 644 the apex
Court examined whether an interim order
granted by the court survives after expiry
of the period for which it was granted.
The court held,
"The question as to what is the outer
terminal point of the operation of the
restraint, when the expression" in the
meantime" is used is arguable. That
expression takes its colour from the
context. They are " words of relation and
refer not only to a time that is to begin,
but to a time which is also to end". It is
difficult to say the period of the restraint
spilled over October 30, 1990 and the
restraint on altering the " status quo"
continued..."

5. This decision does not find
mention in any of the decisions relied by
the petitioner. But it leaves no scope for
argument that where the interim order is
passed, " in the meantime", it would
expire on the date fixed by the court. On
this ratio interim order till the next date of
listing or till a particular date would
expire on the date when it is listed or on
the date fixed by the court or on expiry of
the period mentioned in the order. It
cannot be deemed to be extended or
treated to be operative from earlier date.
If the case is listed on the date fixed by
the court and the stay order is not
extended, irrespective of the fact whether
the court was able to take up the case or
not, the stay order would expire and the
respondents would be free to execute the
impugned order in absence of extension
of the stay. Similar will be the position
with regard to the time bound stay order.
When a court passes time bound interim
order for a particular period then such an
order cannot be deemed to be extended,
unless another order is passed extending it
before expiry of the period for which it
was granted or a fresh stay order is
passed. Since the stay order granted in
favour of the petitioner had expired on
31.8.2001 it did not survive there after.
The stay order which had ceased to be
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3 All] Iqbal Husain V. District Judge, Moradabad and others
743
operative
could
not
be
extended,
consequently the application for extension
of stay is not maintainable.

6. The learned counsel for the
petitioner then argued that this application
may be directed to be placed before the
same Hon'ble judge who had passed the
earlier
interim
order.
This
requires
examination of Rule 13 and 14 of Chapter
V of the Allahabad High Court Rules
1952 (in brief rules). They are extracted
below:-

"13. Subsequent application on the
same subject to be heard by the same
Bench.-No application to the same effect
or with the same object as a previous
application upon which a Bench has
passed any order other than an order of
reference to another Judge or Judges,
shall except by way of appeal, ordinarily
be heard by any other Bench.

The application when presented by
or on behalf of the person by whom or on
whose behalf such previous application
was made shall give the necessary
particulars of such previous application,
the nature and the date of the order passed
thereon and the name or names of the
Judge or Judges by whom such order was
passed.

14. Tied up cases.-(1) A case partly
heard by a Bench shall ordinarily be laid
before the same Bench for disposal. A
case in which a Bench has merely
directed notice to issue to the opposite
party or passed an ex parte order shall not
be deemed to be a case partly heard by
such Bench.

(2) When a criminal revision has been
admitted on the question of severity of
sentence only, it shall ordinarily be heard
by the Bench admitting it."

7. Rule 13 requires an application to
the same effect or for same object to be
normally placed before the same judge.
Rule 14 provides that an exparte order
would not be treated as tied-up to the
bench, which passed the order. How to
reconcile these two rules where time
bound stay order expires. I have already
held that in such cases application for
extension of stay is not maintainable. But
fresh application for stay can be filed. The
question is whether such application can
be decided by any Judge or it can be listed
only before the Judge who granted time
bound stay order. For this purpose the two
rules are to be so read as to operate
harmoniously. In my opinion, in all such
cases where interim order is granted after
hearing, may be standing counsel only, it
would not be an exparte order and if the
interim order is time bound etc. it ceases
to be operative for any of the reasons then
the remedy of the petitioner would be to
move fresh application for stay and it
should be listed before the same judge
who had passed the interim order unless
he is not available. In this view of the
matter the request of the learned counsel
for the petitioner to list the application for
extension before the same Hon'ble Judge
cannot be accepted. The period, for which
stay order was granted having expired
before filing of this application, it has
become infructuous. The remedy of the
petitioner
is
to
move
fresh
stay
application before the same Hon'ble
Judge who granted time bound stay order.

Subject to the observations made
above, the stay extension application is
rejected.
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744 INDIAN LAW REPORTS ALLAHABAD SERIES [2002
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 23.9.2002

BEFORE
THE HON'BLE VINEET SARAN, J.

Civil Misc. Writ Petition No. 1093 of 1992

Rekha and another
 ...Petitioners
Versus
The Additional Chief Judicial Magistrate
and others

 ...Respondents

Counsel for the Petitioners:
Sri R.S. Misra
Sri Arun Kumar

Counsel for the Respondents:
Sri Shashi Nandan
Sri A.C. Pandey
S.C.

Code of Civil Procedure Section-11-
Principle of Resjudicata- whether is
applicable in Misc. Proceedings? held-
'Yes' to give the finality of litigation-
earlier application to lead additional
evidence- rejected validity challenged
through writ petition- During pendency
of the writ petition- on fresh application-
order to give additional evidence cannot
be passed.

Held- Para 6

Even though Section 11 of the Code of
Procedure may not strictly apply to the
present case, the subsequent application
filed would certainly be barred by the
general principle of res judicata. Once
having decided a particular matter in one
way at an earlier stage, the courts
should not allow the party to reagitate
the matter at a subsequent stage of the
same proceedings, especially when there
was no change in circumstances so as to
entail modification or change in the
earlier
view
taken.
Finality
to
a
proceedings have to be given at some
stage. If a litigant is permitted to keep re
agitating the same matter again and
again, no finality to the proceedings can
ever be given. The general principles of
res judicata are broad enough to apply to
miscellaneous proceedings and orders
passed at different stages of the same
litigation.

(Delivered by Hon'ble Vineet Saran, J.)

1. The petitioners had filed a Suit
No. 944 of 1986 in the court of Munsif,
Deoria, praying for cancellation of the
sale deed dated 7.8.1984 executed by
respondent no. 3, Bhagwat and for
permanent
injunction
restraining
the
respondents no. 2 and 3 from interfering
with the petitioners' possession over the
disputed plot. The respondents contested
the suit and vide judgement dated
23.9.1988, the suit of the petitioners was
decreed. Respondents no. 2 and 3 filed
Civil Appeal No. 208 of 1988 challenging
the aforesaid judgement of the Munsif.
During the pendency of the appeal, the
respondents no. 2 and 3 filed an
application for amendment of their
written
statement.
By
order
dated
22.8.1990,
while
allowing
the
amendment, the lower appellate court
made it clear that the amendment of the
written statement would not entitle the
parties to lead fresh evidence. However,
on 28.1.1991, an application for leading
fresh evidence was filed by respondents
no. 2 and 3. The lower appellate court,
after hearing the parties, rejected the said
application
on
5.2.1991.
The
said
respondents
filed
Civil
Misc.
Writ
Petition No. 9467 of 1991 challenging the
aforesaid order dated 5.2.1991.

2. During the pendency of the
aforesaid
said
writ
petition,
the
respondents no. 2 and 3 filed a second
application with the same prayer for filing