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2007 DIGILAW 120 (JK)

Mohd. Shafi Bhat v. Mohd. Ahsan Bhat

2007-07-10

MANSOOR AHMAD MIR

body2007
1. This revision petition is directed against the order dated 22nd December, 2006 passed by learned District Judge, Budgam, in Civil Miscellaneous Appeal No.11 titled Mohammad Shafi and others Vs. Mohammad Ahsan Bhat and others read with order dated 20th June, 2006 passed by learned Sub-Judge (CJM), Budgam, in suit titled Mohammad Shafi Bhat and others Vs. Mohammad Ahsan Bhat and others. 2. Heard. It appears that plaintiff-Ghulam Ali Bhat filed a suit titled Ghulam Ali Bhat v. Mohammad Ahsan Bhat along with an application for grant of interim relief which came to be disposed of vide order dated 8th July, 2004. During the pendency of the suit an application came to be filed by defendants for execution of the order through police which came to be granted vide order dated 20th June, 2006. The Plaintiffs filed miscellaneous appeal assailing the order dated 20th June, 2006, which came to be dismissed vide order dated 22nd December, 2006 by the learned District Judge, Budgam, while holding that impugned order is revisable and not appealable. 3. Feeling aggrieved the petitioners-plaintiffs filed this revision petition. 4. Learned counsel for the parties argued that order passed by Sub-Judge is appealable. 5. It is profitable to reproduce Order 39 Rule 1 and 2 of Civil Procedure Code, for short Code, herein: "Order 39 Rule 1: Cases in which temporary injunction may be granted.--Where in any suit is proved by affidavit or otherwise- (a) that any property in dispute in a suit is in danger of being wasted, damaged or alienated by any party to the suit, or wrongfully sold in execution of a decree, or (b) that the defendant threatens, or intends, to remove or dispose of his property with a view to [defrauding] his creditors, the Court may by order grant a temporary injunction to restrain such act, or make such other order for the purpose of staying and preventing the wasting, damaging, alienation, sale, removal or disposition of the property [or dispossession of the plaintiff, or otherwise causing injury to the plaintiff in relation to any property in dispute in the suit] as the Court thinks fit, until the disposal of the suit or until further orders. (c) that the defendant threatens to dispossess the plaintiff or otherwise causes injury to the plaintiff in relation to any property in dispute in the suit.] 2. (c) that the defendant threatens to dispossess the plaintiff or otherwise causes injury to the plaintiff in relation to any property in dispute in the suit.] 2. Injunction to restrain repetition or continuance of breach.--(1) In any suit for restraining the defendant from committing a breach of contract or other injury of any kind, whether compensation is claimed in the suit or not, the plaintiff may, at any time after the commencement of the suit, and either before or after judgment, apply to the Court for a temporary injunction to restrain the defendant from committing the breach of contract or injury complained of, or any breach of contract or injury of like kind arising out of the same contract or relating to the same property or right. (2) The Court may by order grant such injunction, on such terms as to the duration of the injunction, keeping an account giving security, or otherwise, as the Court thinks fit." 6. While going through this provision of law, one comes to inescapable conclusion that final interim order passed in terms of Order 39 Rules 1 and 2 of the Code can be got executed through police agency in exceptional circumstances by invoking the inherent powers in terms of Section 151 of the Code but not in terms of Order 39 Rules 1 and 2 of the Code. Order 39 Rules 1 and 2 of the Code nowhere provide that police can be asked for implementation of the order(s). 7. The inherent powers can be exercised to prevent abuse of the process of law and to pass such orders which are necessary for the protection of lis. The inherent powers are in addition to and in complement to powers expressly conferred upon it by other provisions of the Code. Inherent powers are not intended to enable a court to create rights in the parties but are meant to enable the court to pass such orders in the ends of justice as may be necessary. Kerala High Court in case titled as Kochupennu Ambujakshi v. Veluthakunju Vasu Channar, reported in AIR 1993 Kerala 62 has also taken the same view. It is profitable to reproduce para-14 of the said judgment herein: "14. As observed by this Court in Thomas case (supra) this Court is not powerless to issue directions in appropriate cases of inaction by the police. It is profitable to reproduce para-14 of the said judgment herein: "14. As observed by this Court in Thomas case (supra) this Court is not powerless to issue directions in appropriate cases of inaction by the police. In such cases resort can be had to the extra-ordinary jurisdiction under Art.226 of the Constitution. In case assistance of the police authorities is not obtained due to their inaction or refusal, an aggrieved party is entitled to seek direction under Art.226 of the Constitution for discharge of such duties by the police authorities. Ordinarily, therefore, the Civil Courts have to give appropriate directions under Section 151 C.P.C. to render aid to the aggrieved parties for the proper implementation of the orders of the Court. In view of that efficacious alternate remedy available to an aggrieved party, the jurisdiction under Art.226 can be exercised only on the failure of the party in getting such assistance of the police in pursuance to the order of the Civil Court." 8. Kerala High Court in case titled A.V.Kunhumuhammed v. Korath Illath Valappi Mammi, reported in AIR 1999 Kerala 383 has observed as under: "8. One of us, (Sankarasubban, J.) sitting single, in the decision reported in Abdul Rahim v. Nazarullah, 1998(2) Ker LJ 643: (AIR 1999 Ker 3) has held that the Court can direct the police to give necessary aid if it is just or to prevent abuse of process of Court or if it is absolutely necessary. It is useful to reproduce paragraph 5 of the said judgment (at page 4 of AIR): "Court can direct the police to give necessary help in case it is found that it is just or in order to prevent an abuse of process of Court or when it is found absolutely necessary. The very foundation of the jurisdiction of the Court to requisition police aid in order to discharge its function of giving effect to its decision being its inherent powers to which it can have resort only for the purpose of meeting ends of justice to prevent abuse of process of Court, the Court can exercise this power only when it is `absolutely necessary, and, no party has a right to insist the Court to exercise it. In order to do justice or to prevent abuse of process of Court, the Civil Courts have ample jurisdiction to given directions to the police authorities to render aid to the aggrieved parties with regard to the implementation of the orders of the Court or the exercise of the rights created under orders of Court. The inherent powers of a Court are in addition to and complementary to the powers expressly conferred upon it by other provisions of the Code of Civil Procedure and they are not intended to enable a Court to create rights in the parties, but they are meant to enable the Court to pass such orders for the ends of justice as may be necessary." 9. Andhra Pradesh High Court in case titled P.Shanker Rao v. B. Susheela, reported in AIR 2000 AP 214, has observed as under: "3...........I would however like to point out that the police aid should not be granted for mere asking. The Court has to be satisfied, prima facie, that there is an imminent threat of violation of interim order, if police does not intervene and that there is no other way of ensuring effective compliance. If however an alternative could be found such as, deploying an Officer of the Court to oversee the implementation of the order, the Court can avoid granting order for police aid. 4. The grant of police aid in the instant case does not call for interference under Section 115, C.P.C. The C.R.P. is dismissed." 10. This Court has also held in case titled State vs. Abdul Rashid, reported in 2001 SLJ 526 that Court has power to direct police to implement the orders of the Court. 11. In view of the above discussion, the inherent powers can be exercised in exceptional cases to implement the final order passed in terms of Order 39 Rules 1 and 2 of the Code but not on mere asking. 12. Accordingly, it is held that order passed by learned Sub-Judge, is revisable and finding returned by the District Judge that it is not appealable is absolutely correct and needs no interference. The revision petition to come up for arguments after two weeks.