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2009 DIGILAW 558 (KAR)

Karisiddama v. Sanna Kenchamma

2009-07-29

ASHOK B.HINCHIGERI

body2009
ORDER The petitioners have raised the challenge to the order, dated 12/12/2008 passed by the Court of the Civil Judge (Jr.Dn.) at Honnali on I.A. No.IV in O.S.No.182/2007 (Annexure-B). 2. The facts of the case in brief are that the respondent filed the suit against the respondents seeking the relief of permanent injunction. In the said suit proceedings, she also made I.A.No.I for the grant of temporary injunction. The Trial Court, by its order, dated 15/4/2008 granted the temporary injunction after hearing both the sides. The respondent filed I.A.No.IV ventilating her grievance before the Trial Court that the petitioners are unnecessarily obstructing her in the use of the road. It was the further grievance of the respondent that she approached the police seeking their protection but in vain. She therefore had to file the said I.A. seeking a direction to the Police Sub-Inspector (P.S.I. for short). Honnali to give police protection to the respondent for enjoying the suit schedule property. The Trial Court, by its order, dated 12/12/2008 allowed I.A.No.IV by directing the P.S.I., Honnali to give necessary police protection to the respondent, her family members and her coolies to make use of the road mentioned in the plaint schedule. Aggrieved by the said order, this petition is presented. 3. Sri S.V.Prakash, the learned counsel for the petitioners submits that in case of violation or breach of the temporary injunction order, the one and the only course open to the aggrieved party is to make the necessary application under Order 39 Rule 2-A Code of Civil Procedure, 1908 (C.P.C. for short). The police protection can neither be sought nor be given to obey the temporary injunction order. In support of his submissions, the learned counsel has relied upon the judgment of this Court in the case of Manchegowda & Another V. M.Madaiah, reported in 1987(1) KLJ 119, wherein it is held that the Court cannot give direction to the police to implement the order of temporary injunction in view of the specific provisions contained in Order 39 Rule 2-A of C.P.C. The learned counsel has also relied upon the unreported order dated 21/9/2001 passed by the Division Bench of this Court in the case of Hanamawwa V. B Allabaksh & Others, in Contempt of Court Case No.1936/99 (Civil). The relevant portion of the said unreported order is extracted herein below. “4. The relevant portion of the said unreported order is extracted herein below. “4. No doubt, if there is any violation of injunction or breach of the order one can approach the competent Court under Order 39 Rule 2-A C.P.C, and the Court is competent to take action. Further, if any order is passed, there is a provision to file appeal against that order.” 4. Nextly, the learned counsel contends that the order in question suffers from non-application of mind. The Trial Court has not applied its mind as to the boundaries, schedule, etc., of the properties in question. According to the learned counsel, the order in question has enabled the police to sit in judgment over the order of the Trial Court. He submits as far as the petitioners are concerned, it is a very serious matter. The schedule given in the plaint and the particulars mentioned in the temporary injunction order are not clear; the petitioners are disputing the very existence of the road. 5. I have gone through the I.A.No.IV, its supporting affidavit, the objections thereto and the order dated 12/12/2008. It is worthwhile to mention here that the granting of the temporary injunction order itself is not challenged. 6. The Division Bench’s order in Hanamawwa’s case (supra) does not come to the petitioners’ rescue in any way. The sum and substance of the said order is that the aggrieved party cannot resort to the filling of the contempt case, when there is an alternative remedy under Order 39 Rule 2-A of C.P.C. The granting of the direction to the police to enforce the temporary injunction order did not fall for consideration in the said case before the Division Bench. The view taken in Manchegowda’s case (supra) does not continue to govern the field. 7. In this regard, it is worthwhile to refer to the judgment of Andhra Pradesh High Court in the case of P.Shanker Rao V. Smt.B Susheela, reported in AIR 2000 AP 214 , wherein it is held that for implementing the injunction order, the Court can always exercise its inherent powers to grant police aid. The aggrieved party cannot be precluded from seeking police assistance in enforcing the temporary injunction order, just because he can exercise the remedy provided under Order 39 Rule 2-A of C.P.C. The relevant portion of para 3 of the said decision is extracted hereinbelow: “3. The aggrieved party cannot be precluded from seeking police assistance in enforcing the temporary injunction order, just because he can exercise the remedy provided under Order 39 Rule 2-A of C.P.C. The relevant portion of para 3 of the said decision is extracted hereinbelow: “3. ……The mere fact that the action could be taken against either party for flouting the injunction under Order XXXIX Rule 2-A or under the Contempt of Courts Act does not come in the way of the Court taking all necessary steps for ensuring obedience of the injunction order. The Court need not wait till the injunction is breached. In a fit case, the Court can undoubtedly direct police aid as a preventive measure. This power though not expressly conferred, is a power incidental or ancillary to the exercise of the power to grant injunction pending the suit.” 8. It is also profitable to refer to the Division Bench judgment of Andhra Pradesh High Court in RAYAPATI AUDEMMA v. POTHINENI NARASIMHAM, reported in AIR 1971 AP 53 , wherein it is held that the Rule 2-A does not deal with the implementation but only deals with the punishment for disobedience. The relevant paragraph is extracted hereinbelow: “6. In the Allahabad case also, the learned Judges merely observed that the civil court had no jurisdiction to order the police to interfere in the matter of execution of a decree. The inherent powers exercisable by the civil court under Section 151, Civil P.C. were not referred to. Their Lordships also proceeded on the footing that because the disobedience of the order of the court was punishable with penalties mentioned in Order XXI, Rule 32, Civil P.C., the Court could not give any direction to the police with respect to the execution of the decree. The provision for penalty is entirely different from the enforcement of the order itself as we have mentioned earlier. Such a provision would not and cannot preclude the court from exercising its inherent power under Section 151, Civil P.C. in order to do justice or to prevent abuse of the process of court. But the actual decision given to the Superintendent of Police may be correct inasmuch as the form in which the direction was given to the police authorities, does not appear to be proper or correct. 9. But the actual decision given to the Superintendent of Police may be correct inasmuch as the form in which the direction was given to the police authorities, does not appear to be proper or correct. 9. The Bombay High Court, in the case of Nirabai J.Patil v/s Narayan D.Patil, reported in AIR 2004 Bombay 225 has held that Court can pass an order for making the police help available, if the facts of the case warrant it. 10. In the case of Kochupennu Ambujakshi & Others, V. Veluthakunju Vasu Channar & Others, reported in AIR 1993 Kerala 62, it is made clear that the only restraint which the courts have to exercise while granting the police protection is that the order of temporary injunction should not be exparte. When a temporary injunction order is made absolute after hearing both the sides, there are no legal impediments in granting the police assistance for enforcing the temporary injunction order depending upon the gravity of situation. 11. In the wake of the case-law to which the references are made hereinabove, I decline to interfere in the matter. However, if the petitioners have any genuine grievance over the mentioning of the particulars of the properties in operative portion of the temporary injunction order, it is always open to them to seek variance or modification of the said order. In the light of granting the temporary injunction order after hearing both the sides, if a party in whose favour the temporary injunction order is made, complains to the Court that the other side is obstructing her use of the road and that the police are not coming to her rescue, the Trial Court is well within its limits to pass an order directing the police to give the necessary aid in the enforcement of the temporary injunction order. The Court can grant police aid exercising its inherent powers. Otherwise the interests of the litigants can not be protected against a party, who violates the temporary injunction order. 12. This petition is dismissed but subject to the observations made in paragraph-11 herein above. No order as to costs.