Holding

The Supreme Court may, in rare circumstances, intervene to stay interim orders of a High Court, and it stayed the orders striking out pleadings and affidavit evidence but not the order refusing amendment of the plaint.

Summary

The Supreme Court considered appeals arising from a suit concerning the administration of the Lilavati Kirtilal Mehta Medical Trust under the Bombay Public Trust Act, 1950. The trial court had struck out portions of the written statements of defendants 11‑13 and parts of the plaintiff's affidavit, and had refused an amendment of the plaint; the High Court admitted writ petitions under Article 227 but declined to stay those orders. The appellants sought a stay of the High Court's refusal to stay the trial court orders, arguing that without a stay the trial would be disrupted if the writ petitions were later allowed. The Court held that while it does not normally interfere with every interim order of a High Court, it may exercise its corrective jurisdiction in rare cases, and that a stay was warranted for the orders striking out pleadings and affidavit evidence but not for the order refusing amendment of the plaint. Consequently, the Supreme Court modified the High Court's orders, stayed the striking‑out orders, allowed the trial to proceed, and directed the High Court to dispose of the writ petitions promptly. The appeals were disposed of with these directions.

Issues considered

Whether the Supreme Court may interfere with a High Court's refusal to grant an interim stay of orders passed by a trial court under Article 227.
Whether a stay should be granted on the trial court's order refusing amendment of the plaint.
Whether a stay should be granted on the trial court's order striking out portions of defendants' written statements and the plaintiff's affidavit.
Scope of the Supreme Court's corrective jurisdiction under Article 136 in interlocutory matters.

Legislation cited

Bombay Public Trust Act, 1950
Code of Civil Procedure, 1908s. Order VI Rule 17, s. Order XVIII Rule 4, s. Section 105(1), s. Section 115
Constitution of Indias. Article 136, s. Article 227

Subjects

Article 227Article 136interim staycorrective jurisdictionCivil Procedureamendment of plaintstriking out pleadingsevidencetrust lawBombay Public Trust Act

Judgment

A KISHOR KIRTILAL MEHTA AND ORS.
v.

•
LILA VA TI KIRTILAL MEHTA MEDICAL TRUST AND ORS.

JULY 9, 2007
B [TARUN CHATrERJEE AND P.K. BALASUBR.AMANY AN, JJ.]

Interim Order:

Trial Court passed orders declining amendmen.t of the plaint, striking
out portions of the written statement of defendants I I to I 3 and striking out
c portions of the Chief-Examination of the plaintiff}rom the affidavit tendered
in that behalf-Writ petitions u/s Art. 227-High Court admitted the petitions
and issued notice, but declined to grant interim stay of operation of the
orders passed by Trial Court-Interference py Supreme Court-Scope of-
Held: Supreme Court not to interfere with each (Jnd every interim order
D passed by High Court-But, there may be occasions when Supreme Court is
called upon to step in, in its corrective jurisdiction-In the present case, no
·reason to stay operation of the order refusing amendment of the plaint-Such
order of stay would be meaningless since as of now there is no amendment
of the plaint and an amendment would come into existence only if the High
E Court finds it a crue where interference is calledfor-But, the stay ofoperation
of the orders striking out portions of the written statements of defendant
Nos. I I to I 3 and part of the chief-examination in the affidavit tendered by
the plaintiff would be justified since in case High Court were to accept the
challenge to those orders of the Trial Court, it would mean that the witnesses
will have to .be recalled and questions put t@ them on those aspects now
F struck out to cover those aspects and this would inconvenience the tria/-
Constitution of India, 1950-Article 227.

In a suit relating to administration of trust, the Trial Court passed
orders striking out portions of the written statement of defendants 11 to 13
as also a portion ·or the affidavit of Examination-in-chief filed by the plaintiff.
G Confronteq with the order striking out a portion of her affidavit evidence in
Chief Examination, plaintiff moved an application for amendment of the plaint
But the application was dismissed. All the said orders of Trial Court were
challenged by filing writ petitions before the High Court under Article 227 \
of the Constitution. High Court admitted the writ petitions and issued notice,

H 86
KISHORKIRTILALMElffAv. LILAVA"f! KIRTILALMEIITAMEDICAL TRUST
87
but declined to stay the operation of the respective orders of the Trial Court. 'A
In appeals to this Court, the appellants (plaintiff and defendants 11 to
13) contended that having admitted the challenge to the orders of the Trial
Court, the High Court was not justified in declining to stay the operation of
the respective orders.
B
Disposing of the appeals, the Court

HELD: I. It is not for this Court to interfere with each and every interim
order passed by the High Court. But, there may be occasions when this Court
is called upon to step in, in its corrective jurisdiction. But that will depend
upon the facts and circumstances of a particular case and they may be rare. C
While therefore normally this Court should not interfere with the refusal to
grant a stay by the High Court in a particular proceeding, it cannot be assumed
that this Court will never do so whatever be the circumstances. Whether an
appropriate circumstance exists in this case, is another matter.
(Para 10) (92-D-E)
D
2. There is no merit in the apprehension that a grant of stay by this
Court would send a wrong signal to the High Court. Merely because this Court
passes an order of stay in the circumstances of a case deviating from what
the High Court has done, it cannot be expected that the High Court will
suddenly find merit in the matter pending before it and it will be guided by
the interim order passed by this Court. (Para 11) (92-C; 93-A) E
3. In the present case, there is no reason to stay the operation of the
order refusing the amendment of the plaint. Such order of stay would be
meaningless since as of now there is no amendment of the plaint and ·an
amendment would come into existence only if the High Court finds it a case
where interference is called for in the light of the relevant arguments that F
may be raised before it But, the stay of operation of the orders striking out
portions of the written statements of defendant No.11, 12 and 13 and part of
the chief-examination in the affidavit tendered by the plaintitTwould be justified
since in case the High Court were to accept the challenge to those orders of
the trial court, it would mean that the witnesses will have to be recalled and
questions put to them on those aspects now struck out to cover those aspects G
and this would inconvenience the trial. The consequence of granting a stay
would only be that some irrelevant aspects are also covered in the examination
j of the witnesses. If the High Court were to dismiss the writ petitions, those
/

portions can always be eschewed. By and large, which part of the evidence ~
to be discarded as being outside the pleadings is something that the Court H
_y
I

88 SUPREME COURT REPORTS (2007) 8 S.C.R.
./
A considen when it discusses the evidence. It is not necessary at this stage to I
shut out any evidence. What part of the pleadings and what part of the evidence
have to be discarded, will have to be considered by the court in the light of the
order that may be passed by the High Court and if that part of the evidence is
covered by the pleadings that are directed to be struck out then, obviously,
that part of the evidence will have to be ignored. So will be the fate of tbe
B evidence that might be tendered which is not covered by the pleadings in the
plaint. Obviously, the question whether defendants 11, 12 and 13 can enlarge
the scope of the suit will also have to be considered both by the High Court
while dealing with the issue and by the trial court when it deals with the sui.t ·
finally. In order only to ensure that there is no possibility of a truncatedfrial,
c the operation of the orders striking out portions of the written statement of
defendants 11, 12 and 13 and portions of the affidavit tendered in chief-
examination by the plaintiff is stayed. The trial of the suit will go on and there
will be no impediment to it. It is found thatthe High Court has posted the
matter on 20.7.2007 and all parties agreed before this Court that they will be
ready to argue the matter that day. The High Court is requested to ensure
D .that the writ petitions covering such simple issues, be taken up on 20.7.2007
itself and disposed ofin accordance with law immediately. !Paras 12 andl3)
[93-8, D, E, F; 94-A, 8, C, E, FJ

Siddik Mahomed Shah v. Mt. Saran and Ors., AIR (1930) P.C. 57,
E referred to.

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2917 of2007.

From the Judgment & Order dated 18.06.2007 of the High Court of
Judicature at Bombay in Writ Petition No. 4407 of 2007.

F .WITH

C.A. Nos. 2918 &2919 of2007.

Dr. A.M. Sirighvi and S.K. Kapoor, Sr. Adv., Amit Sibal, Ankur Chawla,
Neelam Asrani, Rahul Pratap, Meenakshi Chatterjee, Mahesh Aggarwal, Amit
G Shanna, Sujata Kurdukar and E.C. Agrawala for the Appellants.

Shanti Bhushan, Ranjit Kumar and Shyam Divan, Sr. Adv., Chetan
Kapadia, Tarun Gulati, Praveen Kumar, Ishwar Nankani, P.H. Parekh, Sameer \
Parekh\and Lalit Chauhan for P.H. Parekh & Co. for the Respondents;
\ \ t •

H
'+
KJSHOR KIRTILALMEHTA v. LILA VA TI KlRTILAL MEHTA MEDICAL TRUSTIBALASUBRAMANYAN,J.J
89
-... The Judgment of the Court was delivered by A
'1

P.K. BALASUBRAMANYAN, J. I. Leave granted.

2. When the Petitions for Special Leave to Appeal challenging the
orders of the High Court came up for admission, the contesting respondents
appeared to oppose them. So, with the consent of parties and taking note of B
the limited issue that is before this Court, we are disposing of these matters
finally here and now.
\
3. The suit out of which these appeals arise is one filed by Mrs. Charu
Kishor Mehta, the appellant, in the two appeals arising out of Petitions for
Special Leave to Appeal-CC Nos. 5818 and 5819 of 2007. The dispute relates c
to the administration of a trust named Lilavati Kirtilal Mehta Medical Trust
governed by The Bombay Public Trust Act, 1950. The suit challenged a
notice dated 27.4.2006 issued for convening a meeting of the trustees on
29.4.2006 to resolve certain disputes and sought a declaration that the resolution
allegedly adopted by that meeting was illegal and void and other incidental
D
reliefs. By an order of this Court dated 26.3.2007 in Civil Appeal No. 1575 of
2007, the suit was directed to be taken up and disposed of as expeditiously
as possible and at least within a period of six months from that date. An
interim arrangement was also made by that order. It is the common case that
pursuant to the direction of this Court, the trial has commenced, the plaintiff._
examined in part, and her examination remains incomplete, to be continued E
later. As of now, a witness for the plaintiff is being examined. It is 'lso
submitted that as per the direction of this Court, the suit has to be disposed
of before 26.9.2007.

4. Defendant No. 11 in the suit is the husband of the plaintiff and
defendants 12 and 13 are their children. They were impleaded by way of an F
" \.~,
amendment of the plaint. Defendant No. 11 filed a written statement supporting
the case of the plaintiff. Defendants 12 and 13 filed a joint written statement.
They also essentially supported the plaintiff. According to the contesting
defendants, the written statements filed, sought to introdµce averments not
germane to the plaint and seeking to widen the scope of the controversy. G
They therefore filed an application seeking to have such pleadings in the two
..,
written statements struck out. Defendants 11 to 13 opposed that prayer. The
trial court passed an order dated 30.4.2007 striking out paragraphs 4 to 31, 3$
/
. and 36 of.
.. . . the
.
written
.
statement
.. . .
of defendant
.
'
No.. l l and .paragraphs
·.
4, 7; 1J
'

· arid· 12 from the j9int written·'$tatement of defendants 12 and 13. Feeling
H
90 SUPREME COURT REPORTS (2007) 8 S.C.R.

A aggrieved, defendants 11 to 13 filed W.P. No. 4407 of 2007 before the High (

Court purporting to invoke Article 227 of the Constitution oflndia, challenging
the said order. While the High Court issued notice on th!". Writ Petition
returnable by 20.7.2007, it refused to stay the suit or the operation of the order
dated 30.4.2007. It is this refusal to grant an interim order of stay that is
B impugned in SLP (C) No. 10954 of2007.

5. Meanwhile, the plaintiff filed an affidavit in lieu of her chief-examination
in terms of Order XVIII Rule 4 of the Code. The contesting defendants filed
an application for striking out that part of the evidence in the affidavit, which,
according to them, travelled outside the pleadings in the plaint. The plaintiff
C filed an objection to that application. By order dated 13.6.2007, the trial court
accepted the plea of the contesting defendants and struck out paragraphs 11,
21 to 25, 27 and 29 in the affidavit of examination-in-chief filed by the plaintiff.
Feeling aggriev,ed by that order, the plaintiff filed W.P. No. 4698 of 2007
invoking Article 227 of the Constitution of India, challenging the order of the
trial court.· Though the High Court admitted the Writ Petition and issued
D notice returnable on 20.7.2007, it declined to grant a stay of trial of the suit
or of the operation of the order dated 13.6.2007. Feeling aggrieved by the
refusal of the High Court to grant an interim order pending disposal of the
Writ Petition, the plaintiff has come up to this Court by way of Petition for
Special Leave to Appeal arising out of CC No. 5818 of 2007.
E 6. The plaintiff, confronted with the order dated 13.6.2007 striking out
a portion of her affidavit evidence in chief-examination, moved an application
for amendment of the plaint. By the proposed amendment, she sought to add
paragraphs 3(a), 3(b) as also paragraphs 7(a)(i) and 7(a)(ii) to the plaint. The
contesting defendants opposed that application on various grounds. The trial
F court, by order dated 16.6.2007, dismissed the application. Challenging the
said order, the plaintiff filed W .P. No. 4697 of 2007 in the High Court under
Article 227 of the Constitution of India. The High Court while admitting the
said Writ Petition 'and issuing notice returnable by 20.7.2007, declined to stay
the suit or the operation of the order dated 16.6.2007. This declining to grant
G stay is challenged in the Petition for Special Leave to Appeal arising out of
CC No. 5819 of2007.

7. Learned counsel for the plaintiff and defendants 11 to 13, the appellants .
before us, submitted that having admitted the challenge to the orders of the
trial court, the High Court was not justified in refusing to stay the operation
\·
H of the respective ·o~tlers. Counsel specifically submitted that they were not
KISHOR KIRTILALMEHT Av. LILAVATI KIRTILALMEHT A MEDICAL TRUSTIBALASUBRAMANY AN. l.j
91
seeking a stay of the trial of the suit but were only seeking a stay of the A
" operation of the orders refusing the amendment of the plaint, striking out
portions of written statements of defendants 11, 12 and 13 and a part of the
chief-examination of the plaintiff covered by the affidavit. Counsel submitted
that if ultimately the petitions under Article 227 of the Constitution of India
filed by the plaintiff and defendants 11 to 13 challenging the orders of the
trial- court are to be allowed, then during the examination of the witnesses, all B
those aspects covered by the amendment and the untruncated written statement
and that covered by the chief-examination affidavit, would have to be elicited
\ in the examination of the witnesses, and if meanwhile the evidence is
concluded, this will result in considerable confusion and the evidence will
have to be reopened, witnesses recalled and these matters covered all over c
- again. Counsel therefore submitted that the operation of the relevant orders
may be stayed pending disposal of the writ petitions by the High Court. This
would cause no prejudice to anyone.

8. Learned Senior Counsel appearing for the contesting respondents
submitted that the High Court was in error in admitting the petitions under D
Article 227 of the Constitution of India since the amendment brought to
Section 115 of the Code was not intended to be one opening the floodgates
to enable every order to be challenged under Article 227 of the Constitution
of India. Article 227 of the Constitution oflndia was concerned with correcting
errors of jurisdiction and the High Court ought not to have entertained the
writ petitions filed by the plaintiff and defendants 11 to 13. The plaintiff and
E
defendants 11 to 13, if so advised, had an opportunity to challenge these
orders in terms of Section 105(1) of the Code, in any appeal against the decree
that they may be forced to file. Counsel pointed out that in view of the
proviso to Order VI Rule 17 of the Code introduced in the year 2002, the
amendment of the plaint sought for could not be granted in this case, since F
·' the evidence had already commenced when the application was made and
there was no extraordinary circumstance justifying the allowing of the
amendment. Similarly, the orders striking out portions of the written statements
and the affidavit in chief-examination, also could not be interfered with. It is
not for us to consider these arguments at this stage and it is for the contesting
,Q
defendants to raise these contentions before the High Court wherein the
orders of the trial court are under challenge. The High Court which is
entertaining the challenge to the -orders of the trial court, we are sure, would
,, / consider those contentions as well while it takes up the writ petitions for final
disposal.
H
92 SUPREME COURT REPORTS [2007) 8 S.C.R.

A 9. Learned .counsel for the contesting respondents further submitted
that an order of stay of the operation of the orders impugned before the High
Court would result in impediment to the trial of the suit and such an order
cannot be passed in the light of the specific directions earlier issued by this
Court. Counsel further submitted that the High Court had the jurisdiction
B either to grant an interim stay pending an adjudication or not to grant it and
it is not for this Court exercising jurisdiction under Article 136 of the
Constitution of India to entertain such Petitions for Special Leave to Appeal
and to pass orders interfering with the orders of the High Court. Counsel
submitted that if any stay is granted by this Court that would lead to an
argument that the Supreme Court had found merit in the challenge of the
C plaintiff and defendants 11 to 13, to the orders of the trial court and that
would send a wrong signal. Counsel submitted that on the facts and in the
circumstances of the case, there was no reason to interfere with the orders
of the High Court refusing to grant a stay of operation of the orders passed
by. the trial court.

D 10. It is true that it is not for this Court to interfere with each and every
interim order passed by the High Court. But, there may be occasions,:when
this Court is called upon to step in, in its corrective jurisdiction. But that, of
course, will depend upon the facts and circumstances of a particular case and
they may be rare. While therefore we agree with the submission of learned
E Senior Counsel for the respondents that normally this Court should not
interfere with the refusal to grant a stay by the High Court in a particufar
proceeding, we cannot assume the position that this Court will never do so
whatever be the circumstances. Whether an appropriate circumstanc·e exists
in this case, is another matter.

F 11. As far as the sub.mission that an. interim order .of stay, if it were to
be granted by this Court, would influence the High Court or lead it jnto
thinking that there is m~rit in .the petitions filed before it by the plaintiff and
defendants 11 to 13, the same does not give enough credit to the judicial
approach a High Court has to make or to the experience and familiarity of the ·
concerned judge with the procedure. After all, merely because this Court
G passes an ·order of stay in the circumstances of a case deviating from what •
the High Court has done, .it cannot be expected that the High Court will
suddenly find merit in the matter pending before it and it will be guided by ·
the interim order passed by this Court. We are confident that any High Court \
or any judge trained iii law will have no difficulty in understanding the scope
H of the order passed by this Court and in understanding that what it.or he is
KISHORKIRTIU.LMEHTA "· LILAVATI KIRTIU.LMEHTAMEDICAL TRUST(BALASIJBRAMANYAN. J.( 93

called upon to do, is to decide the matter on merits uninfluenced by the fact A
that an interim order of stay has been granted by this Court or merely by the
reasons if any, stated by this Court in an interlocutory order in a matter that
has come up before it at an interlocutory stage. We therefore see no merit in
the apprehension of learned Senior Counsel for the contesting respondents
that a grant of stay by us would send a wrong signal to the High Court. We B
have no doubt that the Hi~ Court will consider the arguments of both sides
on merits uninfluenced by anything we have done here and come to its own
independent conclusion on merits.

12. Now coming to the question, whether we should interfere and grant
an interim order of stay of operation of the orders refusing the amendment C
of the plaint, striking out portions of the written statement of defendants 11,
1.2 and 13 and striking out portions of the chief-examination of the plaintiff
from the affidavit tendered in that behalf, we see no reason to stay the
operation of the order refusing the amendment of the plaint. Such order of
stay would be meaningless since as of now there is no amendment of the ·
plaint and an amendment would come into existence only if the High Court D
fi11ds it a case where interference is called for in the light of the relevant
arguments that may be raised before it. But, we think that the stay of operation
of the orders striking out portions of the written statements of defendant No.
11 and of defendants 12 and Band part of the chief-examination in the
affidavit tendered by the plaintiff would be justified since in case the High
E
Court were to accept the challenge to those orders of the trial court, it would
mean that the witnesses will have to be recalled and questions put to them
on those aspects now struck out to cover those aspects and this would
inconvenience the trial. The consequence of granting a stay would only be
that some irrelevant aspects are also covered in the examination of the
witnesses. If the High Court were to dismiss the writ petitions, those portions F
can always be eschewed .. By and ·large, which part of the evidence is to be
discarded as being outside the pleadings is something that the court considers
. when it discuses the. evidence. There cannot also be any doubt that no
amount of evidence can be looked into on a plea never put forward. {See .
SiddikMahomed Shah v. Mt. Saran and Ors., AIR (1930) P.C. 57). Therefore,
at this stage, if the operation of those two orders are not stayed, it wou,ld
o·
mean that the examination of the witnesses will cover only that portion of the
plea admitted to be put forward by defendants 11 to 13 or in the plaint, and
that would cause inconvenience to the trial which has been directed to be
expedited by this Court. Merely because some more or not strictly necessary
questions are also asked either in cross-examination or in chief-examination, H
94 SUPREME COURT REPORTS (2007) 8 S.C.R.

A that cannot also prejudice the contesting defendants since they can always
plead either that a part of the evidence has to be discarded as not being
coveted by the pleadings in the case or that it is irrelevant. We do not think
that it is necessary at this stage to shut out any evidence. We clarify that
what part of the pleadings and what part of the evidence have to be discarded,
B will have to be considered by the court in the light of the order that may be
passed by the High Court and if that part of the evidence is covered by the
pleadings that are directed to be struck out then, obviously, that part of the
evidence will have to be ignored. So will be the fate of the evidence that might
be tendered which is not covered by the pleadings in the plaint. Obviously,
the question whether defendants 11, 12 and 13 can enlarge the scope of the
C suit will also have to be considered both by the High Court while dealing with
the issue and by the trial court when it deals with the suit finally. Suffice it
to say that in order only to ensure that there is no possibility of a truncated
trial, we stay the operation of the orders striking out portions of the written
statement of defendants 11, 12 and 13 and portions of the affidavit tendered
D in chief-examination by th\ plaintiff. We make it clear that what part of the
written statement of defendant No. 11 and of defendants 12 and 13 and what
part of the evidence are to be ignored, are matters that will depend upon the
decision to be rendered by the High Court in the matters pending before it
and to be considered by the trial court when it finally· disposes of the suit
and if its order were to be upheld by the High Court, to be consistent with
E the order it has already passed.

13. At the same time, we think it necessary to clarify that the trial of
the suit will go on and there will be no impediment to it. We find that the High
Court has posted the matter on 20.7.2007 and all parties agreed before us that
they will be ready to argue the matter that day. We request the High Court
F to ensure that the writ petitions covering such simple issues, be taken up on
20. 7 .2007 itself and disposed of in accordance with law immediately.

14. The orders of the High Court are thus slightly modified and the
appeals are disposed of with the above direction. The parties are directed to
suffer their respective costs.
G
B.B.B. Appeals disposed of.