DIRECTOR DEFENCE RESEARCH AND DEVELOPMENT LABORATORIES HYDERABAD Vs. C PANDU INSTRUMENT MECHANIC DEFENCE RESEARCH DEVELOPMENT LABORATORIES HYDERABAD

JUDGEMENT

(1.) This is an application for granting stay of the operation of the judgment in W.A. No. 296/76 dt. 6-9-76. We have just now passed an order in SCLP. 361/76 dismissing the said petition and refusing to grant a certificate for leave to appeal to the Supreme Court.

(2.) Sri M.B. Rama Sarma learned counsel for the respondent arises a preliminary and a somewhat novel objection to our jurisdiction and power to grant stay once we have dismissed the application for leave. According to him our power to grant or not to grant stay came to an end with the dismissal of the leave application. In other words, his contention amounts to saying that the court has become functus officio since the leave petition has been dismissed. We are not persuaded to accept this objection. We do not think that the court loses power and jurisdiction to grant interlocutory ad interim orders even though the leave application has been dismissed. Certainly it is open to the petitioner in the leave application 10 approach the Supreme Court for special leave. Until then or in the alternative until the time for seeking special leave from the Supreme Court expires, the matter in a sense is kept alive. Since the Supreme Court has not yet been approached, this court, which has disposed of the matter and dismissed the leave petition, will have to safeguard the interests of the parties until such time the Supreme Court has seisin of the matter, or the time for approaching the Supreme Court has expired, whichever is earlier. If this court is satisfied that it is a matter where ad interim orders may be granted to safeguard the interests of the parties until such time that it would be possible for the losing party to go to the Supreme Court and apply for appropriate orders, in our opinion, it certainly has the power to do so. If it is an ordinary civil matter this court can act under Rule 13 of Or. 45 and Sec. 151, C.P.C. while granting ad interim orders. Though that provision does not in terms apply, the analogy of Or. 41 rule 5(2) may also be considered. Under this provision the court which has passed the decree may, on sufficient cause being shown order the execution to be stayed whenever an application is made for stay of execution of an appealable decree before the expiry of the time allowed for appeal therefrom. When such power is available to an ordinary civil court, it is futile to argue that it is not available to the High Court when it exercises extraordinary jurisdiction under Art. 226 of the Constitution of India. We are, therefore, of the opinion that the High Court continues to have jurisdiction to pass ad interim orders even though it has dismissed the leave petition, if it is satisfied that it would be in the interests of justice to pass such an order until the parties have sufficient time to go to the Supreme Court for securing appropriate orders.

(3.) Sri Rama Sarma strongly relies on the decision of the Supreme, Court in State of Orissa V. Madan Gopal (1) A.I.R. 1952 Supreme Court 12 in support of his contention that this court loses jurisdiction once the leave petition has been dismissed. There the Orissa High Court held that Art. 226 could not be used for deciding on the merits of the case. The High Court felt that a suit should be filed after giving notice under Section 80 of the Civil Procedure Code. Therefore, the court dismissed the writ petition but at the same time granted an interim order to enable the losing party to approach the civil court for appropriate orders. This was challenged before the Supreme Court. Kania. C.J. who spoke for the court, said this in paragraph 6: