The Allahabad High Court has clarified that an interim stay order granted under Order XXXIX Rules 1 and 2 CPC cannot be vacated merely because steps for service on non-contesting parties were not completed, especially when the core dispute is between the primary litigants and no prejudice is shown. The judgment reinforces procedural fairness and the discretionary nature of interim relief in appellate proceedings.
Background & Facts
The Dispute
The dispute arose from a civil suit bearing No. 455/2026 filed by Dr. Amod Kumar Sachan (respondent No. 1) against Richa Mishra and others (petitioners herein), concerning the management and control of a trust and hospital. The plaintiff sought an interim injunction to restrain the defendants from interfering with the trust’s operations. An application under Order XXXIX Rules 1 and 2 CPC was filed seeking urgent relief.
Key Facts
- The trial court, by order dated 02.04.2026, granted an interim injunction in favor of the plaintiff (respondent No. 1)
- The defendants (petitioners herein) filed a miscellaneous civil appeal under Order XLIII(1)(r) CPC against the injunction order
- The District Judge, Lucknow, admitted the appeal as Misc. Civil Appeal No. 80/2026 on 10.04.2026
- On the same date (10.04.2026), the District Judge passed an interim order staying the operation of the trial court’s injunction order until the next date of hearing
- The order dated 10.04.2026 directed the appellants (petitioners) to serve notice on all respondents, including respondents No. 3, 4, and 5, and invited objections
- The petitioners claimed they had submitted the summons for respondents No. 3, 4, and 5 in the appellate court office by 27.04.2026
- Respondent No. 1, who was on caveat, challenged the interim stay order by filing Writ Petition No. 2030/2026 (under Article 227)
- On 22.04.2026, a coordinate bench of the High Court directed the matter to be listed on 29.04.2026 and clarified that the pendency of the writ petition would not affect the appellate proceedings
- On 29.04.2026, the petitioner’s counsel withdrew the writ petition, which was allowed
- On 27.04.2026, the District Judge, Lucknow, refused to extend the interim stay, citing non-compliance with the service direction in the 10.04.2026 order, and fixed 15.05.2026 for final hearing of the appeal
- The petitioners now challenge the 27.04.2026 order under Article 227
Procedural History
- 02.04.2026: Trial Court grants interim injunction in favor of respondent No. 1
- 05.04.2026: Petitioners file Misc. Civil Appeal No. 80/2026 under Order XLIII(1)(r) CPC
- 10.04.2026: District Judge admits appeal and grants interim stay of trial court order; directs service of notice on all respondents; fixes next date
- 12.04.2026: Respondent No. 1 files Writ Petition No. 2030/2026 challenging the interim stay
- 22.04.2026: Coordinate Bench of High Court directs listing on 29.04.2026; clarifies appellate proceedings to continue
- 27.04.2026: District Judge refuses to extend interim stay due to alleged non-service; fixes 15.05.2026 for final hearing
- 29.04.2026: Writ Petition No. 2030/2026 is withdrawn by petitioners’ counsel
- 30.04.2026: Present petition under Article 227 heard and decided
The Parties' Positions
- Petitioners: Argue that the interim stay was granted after full hearing, the non-service was only on non-contesting parties, and no deliberate delay or prejudice was caused. The failure to serve should not vitiate the stay.
- Respondent No. 1: Contends that the interim stay was conditional on service, and non-compliance justified its vacation. Invokes analogy of Order XXXIX Rule 3 CPC to justify refusal to extend.
- Respondents No. 3, 4, 5: Did not appear or file objections; no objection raised by them before the appellate court or this Court.
Relief Sought
The petitioners seek quashing of the District Judge’s order dated 27.04.2026 and extension of the interim stay order dated 10.04.2026 until the final disposal of the appeal on 15.05.2026.
The Legal Issue
Can an interim stay order under Order XXXIX Rules 1 and 2 CPC be vacated by the appellate court solely on the ground of non-service on non-contesting parties, where the order was passed after full hearing and no prejudice or deliberate delay is established?
Arguments Presented
For the Petitioner
The learned Senior Counsel argued that the interim order dated 10.04.2026 was not conditional upon service for its continuation. The order was passed after hearing both parties, including respondent No. 1 who was on caveat. The direction to serve notice was procedural and pertained to parties who were not actively contesting the matter. The petitioners had submitted the summons in the appellate court office, indicating good faith compliance. The refusal to extend the stay without recording any reason of deliberate delay or prejudice violated principles of natural justice. The analogy of Order XXXIX Rule 3 CPC was inapplicable as the stay was not ex parte.
For the Respondent
Respondent No. 1’s counsel contended that the interim stay was granted subject to compliance with service obligations, and non-compliance justified its vacation. He relied on the principle that courts must ensure due process for all parties, even if they are not contesting. He argued that the withdrawal of the writ petition did not validate the stay, as the appellate court retained discretion to enforce its own orders. He further suggested that the matter should proceed to final hearing on 15.05.2026 without interim protection.
The Court's Analysis
The Court emphasized that the interim order dated 10.04.2026 was not framed as a conditional order. It did not state that failure to serve notice would result in automatic vacation of the stay. The order merely directed steps to be taken and invited objections - a standard procedural direction, not a condition precedent.
"It could have incorporated some reason that the steps were not taken and it appeared to be either deliberate or an attempt to procrastinate the proceedings, but not such reason is mentioned in the order dated 27.04.2026."
The Court noted that respondent No. 1, who was the primary opponent and had appeared before the appellate court, had already challenged the stay via a writ petition, which he subsequently withdrew. Having withdrawn his challenge, he could not now rely on the same non-compliance to oppose the continuation of the stay. The Court invoked the principle that "what cannot be done directly cannot be done indirectly."
The Court rejected the respondent’s reliance on Order XXXIX Rule 3 CPC, observing that the rule applies to ex parte injunctions, whereas the stay in question was granted after full hearing. The Court held that the analogy was misplaced and legally unsustainable.
The Court further observed that respondents No. 3, 4, and 5 were not contesting the matter and had not raised any objection. Their non-service could not, therefore, justify the vacation of an interim order that protected the status quo between the primary parties.
The Court declined to make any observation on the merits of the appeal, recognizing that the substantive rights would be determined by the appellate court on 15.05.2026. However, it held that the equities of justice required the interim stay to remain in force until that date to prevent irreparable harm.
The Verdict
The petition succeeds. The order dated 27.04.2026 of the District Judge, Lucknow, is set aside. The interim stay order dated 10.04.2026 is extended until 15.05.2026. The appeal shall be heard on 15.05.2026 without adjournment. The parties are directed not to alter the status quo of the trust and hospital pending final disposal. The appellate court is empowered to proceed expeditiously and impose costs for any misuse of this direction.
What This Means For Similar Cases
Interim Stays Are Not Conditional Unless Explicitly Stated
- Practitioners must ensure that any interim order containing procedural directions (e.g., service of notice) clearly states whether compliance is a condition for continuation
- Absent such express condition, courts cannot vacate stays for procedural lapses, especially where no prejudice is shown
- The burden shifts to the opposing party to demonstrate deliberate delay or prejudice, not mere non-compliance
Withdrawal of Challenge Precludes Later Reliance on Grounds
- A party who withdraws a challenge to an interim order cannot later invoke the same grounds to oppose its continuation
- This prevents tactical litigation and upholds the finality of procedural choices
- Counsel must be cautious in withdrawing writ petitions under Article 227 when interim relief is at stake
Order XXXIX Rule 3 CPC Does Not Apply to Interim Stays After Hearing
- The rule governing vacation of ex parte injunctions cannot be analogously applied to stays granted after hearing both parties
- Courts must distinguish between ex parte and inter partes orders when applying procedural rules
- This judgment reinforces that full hearing negates the need for strict compliance with service norms as a condition for stay continuation
