It is seen that in certain circumstances, one or more parties to a suit approach the higher forum seeking certain reliefs and avail a stay order. The question arises here that if the High Court or any other higher court passes an Order directing stay of further proceedings of the suit, whether an interim or interlocutory application can be moved and whether the Trial Court is competent to entertain the same during the subsistence of the Stay Order! In this post, the issue will be answered in detail. But before that, let us understand what a suit is in the common language.
What is a Suit?
In simple terms, a suit is a legal proceeding, an action initiated by one person (called the plaintiff) against another (called the defendant) in a court of law to enforce a legal right. When someone's rights are infringed, and they want the court’s help, they may file a suit seeking appropriate relief. Be that as it may, a suit is not limited to just civil matters; it can involve property, contracts, injunctions, family disputes, and more. The objective of filing a suit is to resolve disputes legally and obtain justice through court orders. When the suit is finally disposed of, or in simpler terms, the suit concludes, i.e. comes to an end, a decree is drawn, and if the same is not challenged before any higher Court or law, the same attains finality.
Provisions Under Which a Suit is Filed
In India, the process of filing a suit is primarily governed by the Code of Civil Procedure, 1908 (CPC). The main provisions for filing a suit include:
Order 1 & Order 2 of CPC:
These cover the parties to a suit and the framing of suits.
Order 6 to Order 8:
They explain how pleadings (plaint and written statement) are drafted and submitted. The Order 6 states pleading in general, Order 7 deals with the plaint and Order 8 speaks about the written statement, set off and counterclaims. So the Orders 7 & 8 are subsets of Order 6.
Section 9 of CPC:
It allows civil courts to try all suits of a civil nature unless expressly or impliedly barred.
Section 26 of CPC:
It lays down the procedure for instituting a suit by presenting a plaint in the court of competent jurisdiction.
The following are the ingredients essential for initiation of the suit, and without these essential elements, the plaint cannot be produced before the Court:
- There is a cause of action for filing the suit.
- The plaintiff has the legal right to sue the defendants.
- The court where the suit is filed has jurisdiction to entertain the suit, which includes territorial, pecuniary, and subject-matter etc.
What is a Stay Order?
A stay order is a direction by a higher court (like a High Court) to temporarily stop proceedings of the suit before the lower court (like a trial court). The purpose of granting a stay order is to avoid judicial waste or conflicting judgments.
Stay orders are often granted under:
Section 151 CPC: Inherent powers of the court.
Article 227 of the Constitution: High Court's supervisory power over subordinate courts.
Order 41 Rule 5 CPC: Stay of proceedings during the pendency of an appeal.
Can an Interim Application Be Moved and Entertained During the Subsistence of a Stay Order?
Now, coming to the point, this is a common and important legal query. The general assumption is that once a stay order is passed, all further proceedings, including the hearing of interim applications, should be stopped. However, the legal position is more nuanced. The Supreme Court and various High Courts have clarified this issue in several decisions. The key principle is: What has been stayed must not be proceeded with. But what has not been stayed can still continue.
Let’s break this down.
If the High Court’s stay order specifically stays all further proceedings, then no application—interim or otherwise—should be entertained by the trial court. However, if the stay order is limited (for example, staying only the trial or final hearing), then the trial court may still entertain and decide interim applications that are necessary to preserve rights or prevent injustice (like applications for injunctions or status quo orders).
Example 1:
A suit is filed for specific performance of a contract or a declaration of right, title and interest. In that suit, the plaintiff had filed an application under Order 39 Rule 1 & 2 for an interim injunction. Subsequently, it came to the notice of the plaintiff that some inadvertent errors had crept into the plaint. Therefore, he filed an application for amendment of the Plaint under Order 6 Rule 17 of CPC. The application for amendment was rejected by the Trial Court. The plaintiff thereafter moved before the High Court by filing an application under Article 227 of the Constitution of India. The High Court, after issuing notice to the opposite parties, directed to stay the further proceedings of the suit.
Now the question arises, if the defendants continue disturbing the possession of the plaintiff over the suit property, whether the Trial Court may proceed with the application under Order 39 Rule 1 & 2 of CPC despite there being an Order of Stay?
The short answer is yes. The further proceeding in the suit was stayed, but that does not preclude the jurisdiction of the Trial Court to entertain ancillary proceedings or interlocutory applications.
Example 2:
Let us assume that the suit is for a declaration. The defendants are landlords, and the plaintiff is the tenant. Due to failure to pay rent, the defendants issued a termination of tenancy notice, to which the plaintiff challenged in suit. There, the defendants raised a counterclaim by filing a cross-objection praying for eviction of the plaintiff from the suit land and for realisation of arrear rent amounts. Subsequently, the application for amendment or any such application filed by the plaintiff was dismissed, and the plaintiff moved before the High Court and filed a writ petition under Article 227. There, the High Court directed the further proceedings to be stayed in the suit.
Now the question arises, if the defendants file an application under Order 40 Rule 1 of CPC to appoint a court commissioner, before whom the usufructs or the rent would be deposited during the pendency of the suit, wher the Trial Court has jurisdiction to entertain the same in view of the stay order passed by the High Court?
Answer: Yes
Reason:
The Trial Court retains its jurisdiction to consider and pass orders in matters which are collateral or which may be protective or which would be for the purpose of keeping the case alive even during the subsistence of the Order of the superior Court directing stay of further proceedings in the suit. The Court, while entertaining such an interim or supplemental application, must bear in mind that the subject matter in the interim petition does not touch the trial of the suit which has been stayed by the higher Court. Since the applications relating to the collateral matter may have no connection with the appeal or revision, as the case may be, the Trial Court has inherent power to entertain the interim applications which have no bearing on the merits of the suit.
Relevant Case Laws
Sri Bijay Kumar Agrawalla & another vs Ramakanta Das 1987 (II) OLR 546
The High Court held that the Trial Court was not right in entertaining an application filed by the plaintiff in view of the stay order granted by the High Court. The petitioner filed an application under Order 38 Rule 5 of the CPC, read with Section 151, praying to direct the opposite parties to deposit the entire arrear dues and day-to-day compensation and for attachment of movable properties. The Trial Court did not entertain such application, citing that the High Court had directed a stay of further proceedings. THe aggrieved party again moved before the High Court, where the Hon’ble Court held that since the further proceeding was stayed in the suit and the Trial Court is having inherent power to entertain the collateral proceedings, the trial court was not correct in rejecting the application on the plea of stay order passed by the higher forum.
Basanta Manjari Samal vs Rupakanta Sahu & ors, 2017 (I) ILR Cut 657
The plaintiff filed a suit for declaration. The defendants lately appeared and filed a written statement, which was not accepted by the Trial Court, for which the defendants moved before the High Court and filed an application under Article 227. The High Court directed stay of further proceedings in the suit. Thereafter, the defendants tried to interfere with the possession of the plaintiffs, for which the plaintiffs filed an application under Order 39 Rule 1 & 2, and the same was rejected on the basis of the stay order from the High Court. When plaintiffs moved before the High Court, it quashed the Order and held that the Trial Court has sufficient inherent jurisdiction to entertain the application for injunction even though the further proceedings of the suit have been stayed.
Conclusion
Even though the further proceedings of the suit have been stayed by the High Court or any higher Court, the Trial Court possesses inherent power to entertain the interim applications such as injunction, appointment of receiver or any application under Section 151 of CPC. However, if such an application has a direct bearing upon the suit itself, the Trial Court loses its power to entertain such an application. Therefore, in simple terms, it can be concluded that the Courts have the discretion to allow proceedings that are not explicitly stayed, especially when it serves justice and protects rights.
Reference:
Sri Bijay Kumar Agrawalla & another vs Ramakanta Das 1987 (II) OLR 546Basanta Manjari Samal vs Rupakanta Sahu & ors, 2017 (I) ILR Cut 657