A single judge passed this Restricted Order (only downloadable for litigants/advocates on the case),
From Paras 20 and 21,
Bhanu Kiran Vs Rahul Khosla and Ors on 28 Feb 2023
Under DV Act, Magistrate is competent to pass final as well as interim orders. Sessions Court is appointed as appellate authority to entertain appeal against order passed by Magistrate. As per petitioner, appellate Court is not specifically vested with power to grant interim relief, thus, appellate court cannot pass interim order staying operation of impugned order. If it is held that under Section 29 appellate court is not bestowed with power to pass interim order against interim order because there is no specific power under Section 29, the appellate court would be denuded from power to pass interim order even against final order because there is no such specific power qua final order. Existence of power and use of power are two different dimensions of legal jurisprudence.
Matter needs to be examined from one more angle. The appellate court may or may not exercise power to pass interim order, however, if it is held that appellate court in terms of Section 29 has no power to pass interim order, it would amount to curtailing the powers of appellate court. It seems to be contrary to settled canons of law that appellate authority or court unless specifically barred can exercise all those powers which are vested in subordinate authority. It cannot be approved that Magistrate has power to pass interim order, however, appellate court has no power to pass interim order. Due to overburden, more often than not, appellate courts are unable to finally adjudicate appeal against interim order and if it is held that appellate court has no power to pass interim order, Magistrate may finally decide the issue and appeal would become infructuous.
In view of above-cited judgments and settled principles of law, this court is of the considered opinion that appellate court while exercising powers under Section 29 of DV Act has power to pass interim order.
21. In view of above facts and findings, it is hereby held:
i) Appeal under Section 29 of the DV Act is maintainable against interim order passed under Section 23 of the DV Act.
ii) Appellate Court while exercising power under Section 29 of DV Act has power to pass interim order.
Index of DV cases is here.