Constitution Bench Of The Supreme Court Overturns Asian Resurfacing Judgment

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In a recent judgment, High Court Bar Association, Allahabad v. State of U.P., 2024 INSC 150 the Supreme Court of India overruled its own judgment in Asian Resurfacing of Road Agency v. CBI (2018) 16 SCC 299.
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In a recent judgment, High Court Bar Association, Allahabad v. State of U.P., 2024 INSC 150 the Supreme Court of India overruled its own judgment in Asian Resurfacing of Road Agency v. CBI (2018) 16 SCC 299. In Asian Resurfacing, the Supreme Court had held that interim orders passed by the High Courts for stay on trial in civil and criminal matters would expire automatically in six months unless the same was extended by the High Court through a speaking order.

The main issue in the Asian Resurfacing arose in the context of criminal trial proceedings with respect to framing of charges under the Prevention of Corruption Act, 1988. In the same case, the Court went on to issue blanket directions in respect of all civil and criminal cases in an attempt to reduce delays in disposal of cases by exercising its powers under Article 142 of the Constitution of India.

Asian Resurfacing was decided by a bench of three Judges. It came to be referred to a larger bench when the Allahabad High Court granted a certificate of appeal to the Supreme Court under Articles 132 read with Article 134-A of the Constitution. The Allahabad High Court framed certain questions of law for consideration by the Supreme Court, as to the interpretation of the Constitution which arose out of the directions in Asian Resurfacing judgment. On 1st December 2023, a three Judge bench of the Supreme Court expressed a view that Asian Resurfacing requires reconsideration and referred it to a larger bench of five judges.


A. Object behind granting of Interim orders

The Supreme Court before analysing the questions referred, delved into the object of passing interim orders as this aspect was not considered while passing the directions in Asian Resurfacing. The court stated that an order of interim relief is usually granted in aid of the final relief sought in the case. The interim relief of the stay of the main proceedings can be granted by the High Court on being satisfied that a prima facie case has been made out for such relief and failure to stay the main proceedings before the concerned Court may render the remedy adopted before the High Court as infructuous. In other words, if no stay is granted the lower court may proceed to conclude the trial, even though a challenge to the very basis of the trial is pending before the High Court. This situation might result in an order of remand or reconsideration of the entire matter by the lower court to be passed which would be wasteful. For this reason, grant of stay of proceedings is called for in many cases. The Court also held that the High Court has always got the power to modify or vacate previous order granting interim relief after hearing the parties. This militated against the need to have an 'automatic vacation' of an order staying civil or criminal trial.

B. Vacating of interim order automatically on the ground of lapse of time

While considering the question of whether an interim order can come to an end automatically only due to the lapse of time, the Court answered the same in the negative. The reasons for the answering this issue in the negative were as follows:

  1. The principles of natural justice which are recognised in Indian jurisprudence requires that an order of vacating interim relief or modification of the same is passed only after hearing all the affected parties;
  2. Application of mind is an essential part of decision making process. An interim order of stay cannot be vacated without application of mind only on the ground of lapse of time;
  3. An interim order passed after hearing all the parties cannot be rendered illegal merely with the passage of time;
  4. If an interim order is automatically vacated without any fault on the litigant only because the High Court cannot hear the case, it would be akin to punishing the litigant for the inability of the court to decide the matter.

Further the Court held that the direction in the Asian Resurfacing judgment that the trial courts should immediately fix a date of hearing after the expiry of 6 months, adversely affected the litigant's right to remedies under Article 226 and 227 of the Constitution of India and gave an unfair advantage to the Respondent in the case before the High Court. The Court also went on to rely on the decision Deputy Commissioner of Income Tax vs. Pepsi Foods, (2021) 7 SCC 413 which struck down a similar provision in Income Tax Act 1961, providing for automatic vacation of Appellate Tribunal's stay order if the Appeal was not decided within 365 days. This provision was found to be manifestly arbitrary and in violation of Article 14 of the Constitution.

C. Scope of exercise of powers under Article 142 of the Constitution

The court discussed the issues which arose before the three judge bench that decided Asian Resurfacing. It found that the question regarding the duration of the interim orders passed by the High Courts in various other proceedings did not specifically arise for consideration in the said case. The Court categorically held that the jurisdiction under Article 142 of the Constitution cannot be invoked to pass blanket orders setting at naught a very large number of interim orders lawfully passed by all the High Courts, and that too, without hearing the contesting parties. The Supreme Court also listed out certain parameters for exercise of power under Article 142 of the Constitution which are as follows:

  1. Article 142 does not empower the Court to ignore substantive rights of the litigants;
  2. The Supreme Court can issue procedural directions to the courts to ensure expeditious and timely disposal of cases. But the right to be heard before an adverse order is passed is a substantive right which cannot be done away with by exercising jurisdiction under Article 142;
  3. Power of the Supreme Court under Article 142 cannot be exercised to defeat the principles of natural justice.

D. High Court's power of Superintendence

The Supreme Court reiterated that the High Court is not judicially 'subordinate' to the Supreme Court. The High Court's power of judicial superintendence over all the courts within its jurisdiction will include the power to stay the proceedings before such courts. The Supreme Court passing a blanket direction under Article 142 of the Constitution cannot interfere with the jurisdiction of the High Court to grant interim reliefs by limiting its jurisdiction to pass interim orders valid only for six months at a time.


This decision in High Court Bar Association, Allahabad v. State of U.P has put an end to the regime of "automatic vacation of stay" which was brought in by Asian Resurfacing, and marks a reversal of the judicial activism embodied in that case. Going forward, an interim order of stay of proceedings before the lower court will remain valid unless otherwise vacated after providing an opportunity of hearing to the parties concerned. There is also no mandate that matters in which stay is granted by the High Court have to be heard on day-today basis. While the intent behind the time bound disposal of matters in Asian Resurfacing cannot be faulted with, the directions passed to achieve the same created more issues on multiple fronts to the litigants, lawyers and to the Courts. Time bound disposal of matters and reducing the pendency of cases cannot be achieved without factoring in the limitations faced by the Courts in the administration of justice. The overruling of Asian Resurfacing has provided much needed guidance to stakeholders in cases where a stay of trial is granted by the High Court. While the judgment of the Constitution Bench brings much needed certainty as to the roadmap of a litigation, the overruling of a precedent which was till recently hailed as path-breaking, also brings into focus questions about legal certainty and the place of rule of law in India.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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