Where a statute provides for an appeal against an interim order, is it open to a litigant to choose at his sweet will, a variation at the hands of the court of first instance or to opt for an appeal? Does the doctrine of res judicata have any application?
1. This Court by its order dated 21.12.2021 was pleased to protect me from dispossession, but subject to the condition that I pay an amount of Rs. 25 lakhs. Had this Court had the benefit of hearing my lawyer, I bonafide believe, that this Court would have protected me without conditions. I sought my counsel’s advice. He told me that I can seek correction of the order before this Court (single bench) itself, or prefer an appeal under Section 5 of the Kerala High Court Act, which provides for an appeal even against an interim order.
2. My counsel told me that between the two options, to prefer an appeal would be more ideal because judges are generally reluctant to recall their own orders, and it is unrealistic to expect the Court to do so in SAFAESI matters because there is an undeniable prejudice against borrowers, subliminal and subconscious. He told me that the choice is mine. Whether to seek correction in the Court of first instance or Court of appeal. Accordingly, I preferred an appeal. The appellate Court took the view that I should have sought the correction before the single bench itself and dismissed my appeal.
3. Though the order of the Division bench carries the stigma of dismissal, it indeed had the effect of allowing my appeal. However, this Court (single bench) took a contrary view, which in my humble opinion is incorrect. Anticipating that this Court may be prejudiced by the tag of dismissal, I moved an application for clarification. The division bench felt that there is no need for clarification because the original order is clear enough, and that I could a correction before the single bench itself.
4. The Division bench however, indeed did clarify in a manner far clearer than its initial order. This time, the Division bench recorded the contentions of my counsel in a manner far clearer than it originally had. These facts are evident from the order of the Division bench in WA no.149 of 2022 and my application for clarification and further order in I.A no.1/ 2022.
5. Inspite of the oral orders of this Court to not dispossess me, I was dispossessed on 23.02 2022. I sought restoration of possession orally. This Court by order dated 24.2.2022 was pleased to reject the plea holding that I did not make a written application for variation of its order dated 21.12.2021, so too, because the Division bench had dismissed my appeal. A copy of the said order dated 24.2.2022 in WPC 27754 of 2021 is produced as Annexure A1.
6. It was subsequent to the order dated 24.2.2022 of this Court (single bench) that my application for clarification was heard by the division bench. The Division bench while practically allowing my appeal, still chose to use a terminology that the petition is dismissed. A copy of the application seeking clarification is produced as Annexure A2. A copy of the order dated 09/03/2022 of the Division Bench in I.A no.1/2022 is produced as Annexure A3.
7. I am a layman. I do not know much of law. But my lawyer told me that the calamity I am made to suffer is the result of certain misconceptions about the concept of finality in ad interim or temporary orders. The various judgments on the subject, rather than brining clarity made a simple proposition, namely, that ad interim orders have no element of finality or res judicata, unnecessarily complicated.
8. The judgment of the larger bench of this Court in K.S Das v. State of Kerala (1992 KHC 366), referred to by the Division bench, instead of laying down the correct position of law that interlocutory order, whether ex parte or inter partes, does not entail in cause of action estoppel, does not result in any transit in rem judicatum, it does not have any finality whatsoever, but is a temporary one which could be modified at any stage in any manner whatsoever, went on to lay down certain vague propositions which have no foundation in law. The larger bench (KS Das’s case) failed to take notice of the fact that the jurisprudence of estoppel and res judicata are universal and followed from time immemorial, and where the legislature has in its wisdom felt it appropriate to provide for an appeal from an order which is interlocutory or temporary in nature, Courts are duty bound to give effect to the intention of the legislature as reflected in the plain words employed by the legislature.
9. It is sad that the true import of Section 5 of the Kerala High Court Act, namely, that a citizen is free to, at his sweet will, seek a modification of the ad interim order as and when he pleases, provided there exists reasons to do so, or prefer an appeal since it is unrealistic to expect a judge who had decided a matter in a particular manner, though ad interim, to change his views. An ad interim order is an order to which no element of finality or res judicata could be attributed to. The legislature by enacting Section 5, did not intend to import the doctrine of res judicata to temporary orders. The legislative purpose is to remedy the injustice arising out of unjust temporary orders by giving concurrent jurisdiction to a superior forum/appeal court, namely, the division bench in the instant case. The order of the Division bench will bind the parties and the Single bench as well, not as res judicata, but by application of the doctrine of estoppel, namely, seisin of a lis by a superior forum eclipses the jurisdiction of an inferior forum.
10. I am advised that in K.S Das v. State of Kerala, these fundamental principles of estoppel or eclipse was not discussed at all. I am made to understand that my counsel raised these contentions before the Division bench, and a reference thereof, though incomplete, finds its place in paragraph 12 of the order of the Division bench dated 9.3.2022. The larger bench of this Court in K.S Das, so too, the Division bench in my case, failed to notice the obvious. The power which a Court exercises to pass interim orders is to undo the hardship which may arise from the fundamental principle of law that the vinculum juris, namely, the respective rights and obligations between parties pendente lite (pending litigation) shall not be altered by allowing the Court to grant discretionary, equitable remedies like injunction. It is more of a power exercised in the interest of justice for equitable management of the affairs pending final determination of a lis, a matter which falls entirely in the realm of management, in the realm of procedural law.
11. Law need not be pleaded. It is for my counsel to espouse it. That is the province of my counsel.
12. I am rendered homeless. My family is literally on the streets. I was unjustly and illegally thrown out of my home by force. Equity and justice demand that I be restored possession. When it comes to the protection of fundamental rights, technicality has no relevance. This Court is a court of equity. It exists to do substantial justice. This Court is bound to do justice by restoring possession of my residential home by either modifying or varying its orders dated 21.12.2021 and 24.02.2022, or independent of that, by entertaining the instant application for restoration of possession. The terminology does not matter, the instant is a petition for restoration of possession by modification of orders dated 21.12.2021 and 24.02.2022.
13. I have taken two demand drafts dated 11.03.2022 and 10.03.2022 totaling Rs. 19,10,000/- in compliance of the order of this Court dated 21.12.2021. I have already paid an amount of Rs. 5,90,000/- by DD dated 20.01.2022. Therefore, by extending time retrospectively to pay the amount of Rs. 25 lakhs, this Court can allow me to comply with its order dated 21.12.2021. A copy of the demand drafts dated 11.03.2022, 10.03.2022 and 20.01.2022 are produced as Annexure A4, A5 & A6 respectively.
14. Hence the accompanying application for retrospective extension of time for compliance of the order dated 21.12.2021 and consequential restoration of possession.
15. It is absolutely necessary in the interest of justice that the said application is allowed. Hence the instant affidavit as proof in support of the said application.
