Question asked on: 19/11/2016
An interlocutory order has passed by the high court. I have filed a writ petition for the stay of my transfer in the last month of the year. The assignment was motivated by a local politician for harassment.
The high court accepted my writ petition but did not pass any order in respect of the stay of my transfer. The court called counter affidavit and rejoinder from the parties. In the absence of any order of the court, I am bound to join in the stipulated period.
Is there any remedy to challenge such interlocutory order? My advocate says that I should file a special appeal.
Court has the power to ask counter affidavit and rejoinder from the parties. Such an order has been passed to collect all the material. The court can pass effective order if all the documents have come before the court. This is purely a procedural order, i.e. order to file such affidavit and rejoinder.
A special appeal shall lie against the order of the single judge. Such a petition is maintainable if order affects valuable rights of the parties. In your case, no right is affected by order of the court. Court has the discretion to pass a stay order and maintain the status quo before passing of any final order. But it is not regular order. No one can claim such mandate as a matter of right.
In Centre mine planning and design institute limited vs Union of India 2001 (2) SCC; the Supreme Court of India has held that a special appeal shall lie against the interlocutory order of the single judge if such order is the final determination affecting vital and valuable rights & obligations of the parties.
It is settled law that no special appeal shall lie against the interlocutory order which does not affect valuable rights of the parties. It is better for you to file rejoinder and let the respondent file counter affidavit. When all materials come before the court, then the court can pass final judgment. If you file a special appeal, it would not be maintainable.
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Shivendra Pratap Singh
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