Writ Appeal Not Maintainable U/S. 5(i) of Kerala High Court Act When Interim Relief Already Granted: Kerala High Court
The Court said a writ appeal under Section 5(i) of the Kerala High Court Act was not maintainable when the interim relief sought had already been granted, and directed the appellant to pursue further directions, if any, through an interlocutory application.
The Kerala High Court has held that a writ appeal under Section 5(i) of the Kerala High Court Act, 1958, is not maintainable against an interim order passed by a Single Judge granting the exact relief sought in a writ petition. The Court reiterated that when an interim order does not cause substantial prejudice or affect any rights beyond what was pleaded, the petitioner cannot be treated as an aggrieved party.
A Division Bench of Justice Anil K. Narendran and Justice P. V. Balakrishnan observed, “When the interim relief as sought for in the writ petition has already been granted by the learned Single Judge, the writ petitioner, who is not a person aggrieved by that interim order, cannot maintain a writ appeal against that order.”
The Court added, “If the writ petitioner requires any further direction, beyond the scope of the interim order sought for in the writ petition, he has to move an interlocutory application in the writ petition for that purpose, instead of challenging the interim order already granted by the learned Single Judge.”
Advocate P. S. Biju appeared for the Appellant, while Deputy Solicitor General O. M. Shalina appeared for the Respondents.
Brief Facts
The Appellant, the Principal of a private dental college, had filed a writ petition challenging a communication issued by the Kerala University of Health Sciences directing the college to furnish the details of students and house surgeons currently enrolled in the BDS programme, in light of a proposal to reallocate students due to the lack of a functional hospital facility at the institution.
The Appellant contended that the college’s dental hospital had been demolished due to highway expansion and that construction of a new hospital building was complete, but not yet operational. Meanwhile, the college was operating under a tie-up with a government hospital, with the approval of the authorities.
The petition sought a stay of proceedings under the impugned communication and also requested that the Dental Council of India and the Union of India consider its pending representations before taking any steps under Section 16 or 16A of the Dentists Act, 1948, or Regulation 11A of the DCI Regulations, 2006.
The Single Judge passed an interim order staying further proceedings under the impugned communication for three months.
Despite the grant of the interim relief, the Appellant filed a writ appeal under Section 5(i) of the Kerala High Court Act, 1958, contending that the interim order was inadequate to protect the institution and that the situation demanded a stronger direction to safeguard the interests of students and the college.
Reasoning of the Court
The Court framed the primary issue as whether a writ appeal would lie under Section 5(i) of the Kerala High Court Act against an interim order when the very relief sought in the writ petition had already been granted.
The Bench referred to the statutory language of Section 5(i), which permits an appeal from an order of a Single Judge exercising original jurisdiction. It noted that not all interim orders are appealable and only those that cause substantial prejudice or touch upon the “substantial rights or liabilities” of the parties qualify.
The Court referred to the decision of the Kerala High Court in K. S. Das v. State of Kerala (1992) where it was held that the word ‘order’ in Section 5(i) includes orders passed in miscellaneous petitions in writ proceedings, provided they are not merely procedural or ad-interim but substantially affect the rights or liabilities of the parties or are matters of moment.
The Bench noted that in the present case, the Single Judge had granted the precise relief sought, and hence the appellant could not be considered aggrieved. “The interim relief as sought for in W.P.(C) No.8960 of 2025 is a stay of all further proceedings pursuant to Ext.P13, pending disposal of the writ petition. The interim order granted on 06.03.2025 is to that exact effect. Therefore, the petitioner is not aggrieved”, the Court added.
The Court further clarified that if additional relief was being sought, an interlocutory application should have been filed before the Single Judge instead of invoking the appellate jurisdiction, observing, “If the writ petitioner requires any further direction, beyond the scope of the interim order sought for in the writ petition, he has to move an interlocutory application in the writ petition for that purpose, instead of challenging the interim order.”
Consequently, the Court dismissed the appeal and held that the writ appeal was not maintainable under Section 5(i) of the Kerala High Court Act.
The Bench further vacated the interim order passed by the Single Judge; however, it clarified that this would not prevent the Appellant from seeking further relief by filing an appropriate interlocutory application before the Single Judge.
Cause Title: Principal, Century International Institute of Dental Science and Research Centre v. Union of India & Ors (Neutral Citation: 2025:KER:36793)
Appearance:
Appellant: Advocate P. S. Biju
Respondents: Deputy Solicitor General of India O. M. Shalina; Senior Government Pleader K. B. Ramanand; Special Government Pleader Asok M. Cherian; Standing Counsel Binny Thomas