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Judgment
Ajoy Nath Ray, J.—The writ matter was dismissed ex parte on July 17, 1992.
On December 24, 1990, an interim order had been passed whereby the Respondents were restrained from effecting sales of Scrap Conveyor Belts without leaving 600 M.Ts.
By reason of the ex parte dismissal, the said interim order perished automatically.
An application for restoration of the writ has been made and directions have already been given in that matter.
Being apprehensive that the reserved materials might be sold and thus the writ matter would become infructuouseven if restored, the writ Petitioner has applied for continuation of the interim order pending, disposal of the restoration matter.
Mr. Anindya Mitra appearing for the Respondents has stated on instructions that though 600 M.Ts. had been kept reserved, yet pursuant to sales held on August 12, 1992 and August 13, 1992, 122 M.Ts. therefrom have already been disposed of to third parties. Mr. P.K. Das for the Petitioner does not accept the factum or validity of such sales.
Mr. Mitra further states that disposal in respect of the balance 478 M.Ts. have been fixed by advertisements for September 7, 1992 and September 8, 1992. The advertisements could not be produced for inspection by Court.
Mr. Mitra, has argued even on the basis of the petition itself that the writ Petitioner prays unreasonably for continuation of reservation of 600 M.Ts. and that at best it can pray for reservation of 179 M.Ts. only even on the allegations made by the writ Petitioner itself.
Mr. Mitra has further urged that a continuation of the interim order would today be without jurisdiction as the writ matter has already been dismissed.
From the order of December 24, 1990, there was no appeal. It had become binding as an interim order between the parties. The question of varying the interim order by changing the quantity reserved, would be wholly inappropriate. The interim order is either to be continued as such or not at all.
If a writ or a suit is dismissed ex parte and a protective interim order automatically perishes thereby, the Court retains the jurisdiction to continue such interim order pending disposal of the restoration matter, on the same footing as if the suit had not been dismissed or the writ had not been discharged. Such notional continuation of the writ or the suit for the purpose of keeping interim orders alive is essential so as not to cause miscarriage of justice. The other view would permit the entire suit or the entire application, even upon restoration to be rendered infructuous, by quickly acting Respondents or Defendants, who take the chance of an ex parte dismissal for undermining the effect of protective interim orders. Such notional continuation of the suit or writ for the purpose of interim orders is a power inherent in the Court and is not affected by the Code of Civil Procedure.
It is submitted by Mr. Das that his client has already paid Rs. 17 lakhs for lifting some materials and that the seriousness of his client''s attitude towards this matter is beyond dispute.
It is clarified that the alleged advertisement for sales to be held on September 7, 1992 and September 8, 1992, if already issued, shall not be proceeded upon further in any manner whatsoever until further orders of this Court.
In my opinion the order passed on December 24, 1990, should continue on the same terms as were granted on that day until disposal of the restoration application which has been initiated by Notice of Motion dated August 11, 1992, or until further orders in the instant matter.
Opposition by August 31, 1992. Reply by September 7, 1992. The restoration matter and the instant matter would come up together in the list on September 14, 1992.
Slay of operation of this order is asked for, but the same is refused.
Parties and all others concerned will act upon a copy of this Dictated Order upon the undertaking of the writ Petitioner''s Advocate-on-Record to have the order completed in the usual course.