No Appeal Against Relief Already Granted | Kerala HC Dismisses Writ Appeal Over Interim Order That Fully Covered Petitioner’s Prayer
Sanchayita Lahkar
The High Court of Kerala Division Bench of Justice Anil K. Narendran and Justice P. V. Balakrishnan held that a writ appeal filed under Section 5(i) of the Kerala High Court Act, 1958, is not maintainable when the appellant is not aggrieved by the interim order passed by a Single Judge, particularly where the relief sought in the writ petition has already been granted. The Court dismissed the writ appeal and vacated the interim order passed in the appeal, clarifying that the appropriate recourse for the petitioner lay in filing an interlocutory application within the writ petition if any further relief was required.
The matter arose from a writ petition filed by the Principal of Century International Institute of Dental Science and Research Centre, invoking Article 226 of the Constitution of India. The writ petition challenged a communication dated 24.02.2025 (Ext.P13) issued by the Kerala University of Health Sciences (KUHS), requiring the petitioner to submit details of BDS students and house surgeons for the purpose of reallocation. The said communication was based on a request from the Director of Medical Education citing lack of hospital facilities at the institution.
The petitioner sought a writ of certiorari to quash Ext.P13 and a writ of mandamus directing the Union of India and Dental Council of India to take decisions on two earlier representations (Ext.P11 dated 07.11.2024 and Ext.P12 dated 12.12.2024). These representations pertained to the institution's tie-up with a government hospital, which was being relied upon as an alternative to the institution’s own hospital facility that had been demolished due to National Highway widening. The petitioner also sought a declaration that assessment of infrastructure should consider the tie-up with the government hospital and not the uncommissioned private hospital attached to the college.
On 06.03.2025, the learned Single Judge admitted the writ petition and granted interim relief staying further proceedings pursuant to Ext.P13 for three months. Notwithstanding this relief, the petitioner filed a writ appeal under Section 5(i) of the Kerala High Court Act, 1958, contending that the interim order did not sufficiently safeguard the interests of the institution. The appellant expressed apprehension over possible withdrawal of affiliation and denial of admissions, asserting that the interim relief granted was inadequate to prevent prejudice.
When the appeal was placed before the Division Bench on 16.04.2025, the Court ordered status quo regarding affiliation, noting the petitioner’s continued tie-up with the District Hospital, Kanhangad. However, the maintainability of the appeal itself became the central issue when the matter came up for final consideration on 27.05.2025.
The Union of India was represented by the Deputy Solicitor General. The Dental Council of India, Kerala University of Health Sciences, and Director of Medical Education were represented through their respective standing counsel and the Senior Government Pleader.
The Division Bench examined the primary question of whether the writ appeal filed under Section 5(i) of the Kerala High Court Act was maintainable. It was observed that the matter requiring consideration was whether the interim order dated 06.03.2025 passed by the learned Single Judge in W.P.(C) No. 8960 of 2025 could be challenged by the writ petitioner through a writ appeal under Section 5(i) of the Kerala High Court Act, 1958. During the proceedings, the learned counsel for the appellant-writ petitioner submitted that the interim order issued by the Single Judge, which stayed further proceedings pursuant to Ext.P13 for a period of three months, would not sufficiently address the situation.
The Court referred to Section 5(i) of the Act, which allows an appeal to a Bench of two Judges from a judgment or order of a Single Judge made in the exercise of original jurisdiction. On the aspect of maintainability of an appeal under this provision against an interim order, the Larger Bench in K. S. Das v. State of Kerala [1992 (2) KLT 358] held that the term "order" includes those passed in miscellaneous petitions within writ proceedings, provided such orders are operative during the pendency of the main petition. An appeal, however, would lie only if such orders substantially affect or impact the substantive rights or liabilities of the parties or are matters of considerable significance causing substantial prejudice.
Further reference was made to Thomas P. T. and another v. Bijo Thomas and others [2021 (6) KLT 196], wherein it was clarified that such orders should not be merely ad-interim or procedural in nature. In this context, the Court noted that when the interim relief sought in the writ petition has already been granted by the learned Single Judge, the writ petitioner, not being a person aggrieved by the order, cannot file a writ appeal against it. If the petitioner required further directions beyond what was covered in the interim order, the appropriate course would be to file an interlocutory application in the writ petition itself rather than pursue a writ appeal. On this basis, the Court concluded that the writ appeal filed by the appellant-writ petitioner was outside the scope of Section 5(i) of the Kerala High Court Act.
In the final part of the judgment, the Court held that the writ appeal was not maintainable and therefore dismissed it. As a result, the interim order dated 16.04.2025, which had been granted in the writ appeal, was vacated. However, the Court clarified that this would not affect the writ petitioner's right to file an interlocutory application in the original writ petition if any further direction was required beyond the scope of the interim relief already granted.
Advocates Representing the Parties
For the Petitioners: Advocate P. S. Biju
For the Respondents: Smt. O. M. Shalina, Deputy Solicitor General of India, Sri. C. Dinesh, Sri. Binny Thomas, Standing Counsel, Shri. K. B. Ramanand, Special Government Pleader, Shri. Asok M. Cherian
Case Title: The Principal, Century International Institute of Dental Science and Research Centre v. Union of India & Ors.
Neutral Citation: 2025:KER:36793
Case Number: W.A. No. 773 of 2025
Bench: Justice Anil K. Narendran, Justice P. V. Balakrishnan
[Read/Download order]
