The Jammu & Kashmir and Ladakh High Court has held that an order modifying interim relief in a pending writ petition does not become a “judgment” merely because it permits a tender process to continue. The Division Bench held that such an order is not appealable under Clause 12 of the Letters Patent when the substantive issues between the parties remain open for final adjudication.
A Bench comprising Justice Sindhu Sharma and Justice Shahzad Azeem dismissed the Letters Patent Appeal filed by M/s Jai Sukrala Trading Co. against an order allowing the Army authorities to proceed with and finalise a defence tender, subject to the outcome of the pending writ petition.
Background of the Case
The appellant, a proprietorship concern supplying fencing, electrification, solar and allied structural works to defence units, had participated in nine open tender enquiries issued by the 59 Engineer Regiment. The tenders concerned realignment works in the Naushera-Jhangar sector and connected areas.
A corrigendum issued shortly before the original bid deadline required bidders to physically submit a sample of a Solar Cube Generator-cum-Invertor for technical evaluation. The appellant was subsequently declared technically rejected in all nine tenders on grounds including non-submission of certificates, alleged delay in sample submission, non-conformity of the sample and failure to establish compliance regarding patent infringement.
The appellant challenged the rejection before the Single Judge and sought re-evaluation, opening of its financial bid and restraint against finalisation of the tender. On August 3, 2026, the writ court directed that the financial bid be deferred. However, after the respondents informed the court that the financial bids had already been opened and rate analysis was underway, the interim order was modified on August 13, 2026. The respondents were permitted to proceed with the tender, but its finalisation remained subject to the result of the writ petition.
High Court's Observations
Before the Division Bench, the appellant argued that the August 13 order effectively removed the protection earlier granted by the Single Judge and therefore affected its right to compete. It contended that the order should be treated as a “judgment” under Clause 12 of the Letters Patent and therefore be open to an intra-court appeal.
The Division Bench rejected this contention. It noted that the writ petition was still pending and that the Single Judge had neither upheld nor quashed the appellant's technical rejection or the tender corrigendum. The court also observed that questions concerning technical eligibility, the tender process and allegations of irregularities had been expressly left open.
The Bench observed:
“An order that keeps the petition alive, keeps every substantial issue open, and only refuses to halt an ongoing tender, does not determine vital rights with finality.”
The court further explained that modification of an interim order is part of the ordinary exercise of interlocutory jurisdiction.
It stated:
“An interim order merges in, and remains capable of being moulded by, later orders in the same proceeding.”
The Bench also reiterated that judicial review in tender matters focuses on the decision-making process rather than conducting a fresh technical evaluation.
It observed:
“The Court does not sit in appeal over the Technical Evaluation Committee.”
The court noted that the tender related to operational works in the Naushera-Jhangar sector along the Line of Control and that the writ court had considered the operational nature of the procurement while deciding whether the tender should remain stalled.
Decision
The Division Bench held that the August 13, 2026 order was not a “judgment” within the meaning of Clause 12 of the Letters Patent. It was only a discretionary modification of interim relief in a pending writ petition, while the substantive issues remained open.
The court therefore held that the Letters Patent Appeal was not maintainable and dismissed it. It clarified that no opinion had been expressed on the merits of the pending writ petition and that all contentions of the parties remained open.
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