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2011 DIGILAW 1839 (MAD)

C. Krishnan v. Palepally Sri Gangamman Alaya

2011-03-31

S.TAMILVANAN

body2011
Judgment :- 1. Heard the learned Counsel appearing for the Petitioners as well as the Respondent 2. Challenging the order, dated 10.03.2011 made in Interlocutory Application in I.A. No.31 of 2011 in A.s. No.49 of 2009, on the file of the Principal Subordinate Judge, Krishnagiri, this Civil Revision has been referred by the Appellant in the Appeal. 3. It is not in dispute that the Suit in O.s. No.8 of 2003 was filed by the Respondent herein against the Revision Petitioners and four others by Order, dated 08.07.2009, the Suit was decreed by a common judgment. Aggrieved by which, the Petitioners herein preferred an Appeal in A. S. No.49 of 2009 and the same is pending before the Court below. 4. In the Appeal, the Respondent herein filed an Interlocutory Application in I.A. NO.31 of 2011 under Section 151, CPC to direct the Deputy superintendent of Police, Bargur to give police protection to the Temple Commerce to perform the Pooja during the yugadhi Festival which falls on 4.4.2011 and 5.4.2011. By the impugned order dated 10.3.2011, that Interlocutory Application is allowed with costs by the Court below. Aggrieved by the same, this Revision has been preferred. 5. Mr. T.R. Rajagopalan, learned Senior Counsel appearing for the Petitioner submitted that the suit temple is a private temple, though the Trial Court has granted a declaration that the Respondent/Plaintiff committee is entitled to manage and administer the affairs of the temple and consequential injunction, the same has been challenged before the Subordinate Court, Krishnagiri. 6. It is an admitted fact that both the Petitioners and the Respondent and others are entitled to right of worship in the temple. The learned Senior counsel for the Petitioners contended that pursuant to the injunction granted by the District Munsif, Krishnagiri, the Respondent could have filed Petition under Order 21, Rule 32 CPC, however, the Respondent filed a Petition under Section 151 of CPC, which is not legally sustainable. In support of his contention, the learned Senior Counsel relied on the following decisions. 1. Abdul Sukhure Bhai v. durai Kuppuswamy, 2006 (2) CTC 211 ; and 2. Kannatti v. Anai Gounder, 2005 (1) CTC 540 : AIR 2005 Mad. 461 . 7. In Abdul Sukhure Bhai v. Durai Kuppuswamy, 2006 (2) CTC 211 , this Court (R. Banumathi. J.) has held as follows: “10. 1. Abdul Sukhure Bhai v. durai Kuppuswamy, 2006 (2) CTC 211 ; and 2. Kannatti v. Anai Gounder, 2005 (1) CTC 540 : AIR 2005 Mad. 461 . 7. In Abdul Sukhure Bhai v. Durai Kuppuswamy, 2006 (2) CTC 211 , this Court (R. Banumathi. J.) has held as follows: “10. Ordering Police protection has got serious consequences, impinging on the rights of the parties. Generally, at the stage of granting interim injunction, police protection is not be ordered simultaneously while granting interim injunction. The reason being, the application is before the Court in the initial stages. The court is granting interim injunction only on the satisfaction on the prima facie case and the balance of convenience. Since the entire materials, Court is not apprised of the realities. When the Court is not apprised of the full situation, it would not be proper to pass an order granting Police aid. If such orders are being passed, there is every possibility that the party to whom the interim injunction was granted, armed with the order of Police protection, might try to take advantage of the order and there is every possibility of dispossessing the person who is in actual possession.” 8. In M/s. The Coimbatore Pioneer Mills Ltd., Coimbatore-4 v. M/s/ Chandra Textiles Ltd., Coimbatore-4, 1996 (1) LW 52 , this Court (Srinivasan J.) has held as follows: “The necessity of Police aid is to be decided by the party and is not to be decided by the Court. In such circumstances, the District Munsif, ought not to have passed such an order. Further, police aid cannot be granted simultaneously with an order of injunction. Only if the Court is satisfied that the order of injunction passed by it is not obeyed by the other party, and the party who has secured the order is not in a position to enjoy the benefits of the order because of the conduct of the other party and Police interference is absolutely necessary, the Court can grant an order of police aid. In this case, the District Munsif has thrown to winds all principles of law and justice and passed an order of police aid as if it should automatically follow and attach itself to an order of injunction whenever the Civil court passed an order of injunction. The order granting police aid is wholly unsustainable and requires to be set aside.” 9. The order granting police aid is wholly unsustainable and requires to be set aside.” 9. In the aforesaid judgment reported in Abdul Sukhure Bhai v. Durai Kuppuswamy, 2006 (2) CTC 211 , this Court has given the following guidelines while ordering Police protection. “13. The lower Courts are frequently confronted with the question of issuing police protection. Since the issuance of police aid is often raised in one way or other, by the lower Courts it is appropriate to issue the following guide lines: • In appropriate cases, Civil Court has the power to issue suitable directions to Police officials as servants of law to extend their aid and assistance in the execution of decrees and orders of Civil courts or in implementing an order of injunction passed by it (1992 TLNJ 120). • Ordering Police protection has got serious consequences, impinging on the rights of the parties. • Police aid is not to be granted simultaneously with an order of injunction. • In cases where the lower Courts order Police protection/Police aid in the execution of decrees and orders of the Civil Courts or in implementing an order of injunction passed by it, the Court is to record reasons as to how and why the appropriate case to order police aid and for what purpose the Police aid is ordered. • Police protection /Police aid may not be ordered by a non-speaking order. Order of Court for Police aid might give room for the parties to take law into their own hands. The party having the order of Court for Police and, might try to disturb the status quo either by trying to take possession or trying to dispossess the opponent. • Order of the Court for Police protection is to specifically indicate in precise terms the purpose for which Police protection is ordered. 10. In the instant case, Police protection was not ordered by the Court below, simultaneously while passing an order of injunction. Similarly, on the available facts, there is no question of implementing the order of injunction order, by filing a Petition under Order 21, Rule 32, CPC. It is seen from the Affidavit filed by the Respondent before the Court below that during Yugadhi, there may be possibility for clash between the two groups. Hence, based on the injunction granted by the Trial Court, the Respondent has approached the Court below seeking Police protection. 11. It is seen from the Affidavit filed by the Respondent before the Court below that during Yugadhi, there may be possibility for clash between the two groups. Hence, based on the injunction granted by the Trial Court, the Respondent has approached the Court below seeking Police protection. 11. In Padam Sen v. State of Uttar Pradesh, ARI 1961 SC 218, the Honorable Supreme Court has held as follows: “The inherent powers of the Court are in addition to the powers specifically conferred on the Court by the Code. They are complementary to those powers and, therefore, it must be held that the Court is free to exercise them for the purpose mentioned in Section 151 of the Code when the exercise of those powers is not in any way in conflict with what has been expressly provided in the code or against the intentions of the legislature.” 12. The Honorable Supreme Court has made it clear that the inherent power under Section 151, CPC, is complementary to those powers specifically conferred on the Court by the Code. Hence, the Court is free to exercise the power, to meet the ends of justice under Section 151 of the Code of Civil Procedure, such exercise of the power is not in conflict with any other law. 13. In the instant case, admittedly the Respondent filed the Interlocutory Application relating to the Appeal before the Court below, seeking Police protection, based on the order of injunction granted by the Trial Court, in favour of the Respondent in respect of the administration of the suit temple. The learned Senior Counsel appearing for the Petitioners brought it to the notice of this Court that the Petitioners herein are also entitled to right of worship and by the order to Police protection, there is every possibility for the Respondent to act against the Petitioners, legitimate right of worship. According to him, the relief granted is outside the purview of the decree passed by the Trial court. 14. Learned Counsel appearing for the Respondent submitted that the Respondent/decree-holder is entitled for enforcing an injunction already granted in their favour by invoking Section 151 of the Code of Civil Procedure. According to him, the relief granted is outside the purview of the decree passed by the Trial court. 14. Learned Counsel appearing for the Respondent submitted that the Respondent/decree-holder is entitled for enforcing an injunction already granted in their favour by invoking Section 151 of the Code of Civil Procedure. In support of his contention he relied on a decision, Sri-la-Sri Sivasubramanyananda Swami v. Sri-la-Sri Arunachalasamy, 1993 (1) MLJ 274 , wherein a Division Bench of this Court has held that the Petition filed under Section 151, CPC, pursuant to the injunction granted is maintainable. The decision is that the directions under Section 151 of Civil Procedure Code can be issued by the Civil Court to the Police Authorities to extend their aid and assistance in the execution of decree or orders or to direct the Police, to render aid to the aggrieved parties for the due and proper implementation of injunction orders granted by Civil Court. It is made clear that under Section 151, CPC, Civil Court can issue directions to the Police Authorities to extend their aid and assistance in the execution of decree and orders. The decision reported in Abdul Sukhure Bhai v. Durai Kuppuswamy, 2006 (2) CTC 211 relates to interlocutory orders. During the course of arguments made, the learned Senior Counsel appearing for the Petitioners has also not disputed that the Civil Court is empowered to exercise its power under Section 151, CPC and direct the Police Authorities to provide necessary assistance. However, the learned Senior Counsel brought it to be notice that, based on the order of Police protection, the legitimate right of worship of the Petitioners could not be prevented or taken away by the Respondent, since the Appeal is pending before the Court below. 15. Both the learned Counsel admitted that the Yugadhi festival falls on 4.4.2011 and 05.04.2011 and this interlocutory order being passed in the Revision Petition relates to maintain cordial atmosphere and to prevent breach of peace between two groups, only on the aforesaid two days. 16. Considering the facts and circumstances, this Court is of the view that interim order passed herein is not extended beyond the aforesaid period of Yugadhi festival. 16. Considering the facts and circumstances, this Court is of the view that interim order passed herein is not extended beyond the aforesaid period of Yugadhi festival. As the appeal has to be disposed of by the Court below on merits, on the aforesaid circumstances, after considering the arguments advanced by both the learned Counsel, this Court has passed the following order, without prejudice to the rights of both the parties to be decided in the Appeal by the court below: 17. It is brought to the notice of this Court that the Yugadhi festival commences during night hours on 04.04.2011 as per usual custom. (i) Accordingly, the first turn of Pooja shall be done by the Respondent herein and the second turn shall be done by the Revision Petitioners. (ii) Both the Petitioners as well as the Respondent should cooperate with the authorities, to maintain law and order and worship peacefully without causing hindrance to other worshipers and the public. (iii) The Police Authority namely the deputy Superintendent of Police Burgur is directed to give proper Bandhobasth to the worshipers of both the parties. 18. This Civil Revision Petition is ordered on the above terms. Consequently, connected Miscellaneous Petition is closed. However, there shall be no order as to costs.