Siemens Ltd. vs State and Others

J.P. Singh, J.—The petitioner-Company's Writ Petitions, OWP Nos. 908/2006 and 44/2007, questioning the statutory notices and orders

imposing security in terms of Section 15-A (9) of the Jammu and Kashmir General Sales Tax, 1962 issued by the Assessing Authority Commercial

Taxes Check Post, Lakhanpur, were dismissed on 11.8.2011. Resultantly, the interim orders issued in these Petitions too stood lifted.

The petitioner-Company has moved these Miscellaneous Petitions seeking stay of operation of the judgments in the Writ Petitions and directions

to the State-respondents not to encash the Bank Guarantees until the period of Appeal was over.

Petitioner's learned counsel submitted that the judgments passed by the Court, being appealable, the Court may consider staying operation of

the judgments allowing time to the petitioner-Company to file Appeals against the judgments before the Letters Patent Bench. Reliance is placed

on the provisions of Order XLI Rule 5 (2) of the Code of Civil Procedure, Svt. 1977 to seek interim directions. To support his submission that the

provisions of the CPC were applicable to proceedings under Extraordinary Jurisdiction of the Court, learned counsel relies on Sultan Mohd and

ors v. State of Jammu and Kashmir and ors, OWP No. 210/2000 decided on 6.4.2000.

Provisions of Section 144 of the CPC too have been pressed into service by the learned counsel to seek stay of the judgments.

Considered the submissions of learned counsel for the parties.

Proceedings initiated in exercise of Extraordinary Writ Jurisdiction of the Court are regulated by the Writ Proceedings Rules, 1997, which have

been framed by the High Court in exercise of the powers vested in it under Article 226 of the Constitution of India and Section 102 of the

Constitution of Jammu and Kashmir and all other powers enabling it to frame Rules. These were published vide Notification No. 7 dated

3.6.1997. The preamble of these Rules, specifically supersedes the existing Rules on the subject.

There is no provision in these Rules making the provisions of the CPC applicable to proceedings under the Extraordinary Writ Jurisdiction of the

Court.

The provisions of the Jammu and Kashmir High Court Rules, 1999, which came into force vide Notification No. 39 dated 22.04.1999, apply to

all proceedings and matters in the High Court commenced on and after the coming into force of the Rules. In terms of these rules only limited

provisions of the CPC Svt. 1997 have been indicated to apply to proceeding in the High Court.

A conjoint reading of the two Rules, therefore, indicates that all the provisions of the CPC have not been made applicable to proceedings in the

High Court.

The provisions of Order XLI Rule 5(2) and Section 144 of the Code of Civil Procedure, are not indicated to apply to proceedings in the High

Court in both these Rules.The provisions of Order XLI and Section 144 of the CPC cannot, therefore, in terms, be pressed into service in

proceedings under Extra Ordinary Civil Writ Jurisdiction of the Court.

The petitioner's learned counsel's reliance on the provisions of the Code of Civil Procedure, to seek stay of operation of the judgments, is,

therefore, misconceived.

Although the provisions of the CPC may not, as such, apply to the proceedings in exercise of Extraordinary Civil Writ Jurisdiction of the

Court, yet the principles underlying therein, unless procedural, may be applied by the Court, in case, their application was so warranted to advance

the cause of justice and serve public interest. The procedure prescribed in the Rules to deal with matters arising out of the Extraordinary

Jurisdiction, is, therefore, governed by the Writ Proceedings Rules, 1977 read with the Jammu and Kashmir High Court Rules, 1999.

With the dismissal of petitioner's Writ Petition, this Court becomes Functus Officio and unless otherwise vested with power, under any law, for

the time being in force, to pass orders in respect of the subject matter of dispute, it may not be permissible to entertain applications to pass interim

orders after the conclusion of proceedings.

This apart, this Court has not passed any executable order, execution whereof, may require stay pending appeal by the aggrieved party on the

principles flowing from Order XLI Rule 5 (2) of the Code of Civil Procedure, in terms whereof, stay of execution of only those decrees or orders

may be warranted which are otherwise executable. This Court has not passed any such order or direction while disposing of the petitioner-

Company's Writ Petitions which may require stay of its execution.

Having found the petitioner disentitled to the reliefs sought for in the Writ Petitions, it may not be, even otherwise, appropriate to extend the

operation of the interim orders passed during the currency of the Writ Petitions when the petitioner-Company has been held disentitled to the relief

sought for in the Writ Petitions.

Petitioner's learned counsel' plea that the petitioners are entitled to invoke the principle underlying Section 144 of the CPC too is

misconceived, in that, the principle of restitution, presupposes setting aside or stay of the orders of a Court by the higher forum/Court, which is not

the situation in the present case as the judgments passed by this Court are not yet stated to have been appealed against.

For all what has said above and finding that even if the principles underlying the CPC were to be applied, the petitioner is not entitled to seek

stay of operation of the judgments which do not issue any such directions or orders which are capable of execution.

There is, thus, no merit in these Miscellaneous Petitions, which are, accordingly, dismissed.