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2011 DIGILAW 819 (AP)

Shamsunnisa Begum v. J. R. Ladaram

2011-09-27

R.KANTHA RAO

body2011
Judgment : 1. This civil revision petition is filed against the order dated 03.12.2010 passed by the Principal Junior Civil Judge, Nizamabad in I.A.No.1121 of 2010 in O.S.No.462 of 2003. 2. I have heard Sri M.Rajamalla Reddy, learned counsel appearing for the petitioner and Sri T.V.Kalyan Singh, learned counsel appearing for the Respondents. 3. The petitioner in a suit filed by her for permanent injunction obtained order of temporary injunction pending disposal of the suit I.A.No.1958 of 2003 and in the appeal filed there-against in C.M.A.No.15 of 2006, the appellate Court confirmed the order dated 07.09.2003 passed by the trial Court. Subsequently, it is said that the respondents trespassed into the part of the schedule mentioned land and caused damage to certain constructions raised by the petitioner therein after obtaining temporary injunction. Under these circumstances, the petitioner filed a petition under Section 151 CPC to grant police aid for implementing the orders of the temporary injunction passed in favour of the petitioner by the trial Court pending disposal of the suit which is confirmed by the appellate Court in the civil miscellaneous appeal. 4. The earned trial Court having gone through the facts of the case elaborately and examining the circumstances in which the petitioner seeking police aid came to be filed, dismissed the same on the ground that the petitioners are protracting the trial of the suit when the defendants are ready to proceed with the trial and expressed the view that the plaintiff can as well invoke the jurisdiction of the trial Court by filing proper application under Order 39 Rule 2(A) CPC for breach of injunction committed by the respondents. Against the said order, the present revision petition is filed. 5. The learned counsel appearing for the revision petitioner relied upon a judgment of the Division Bench of this Court in RAYAPATI AUDEMMA v POTHINENI NARASIMHAM AIR 1971 AP 53 wherein it is held as follows: “There being no express provision in the Code for the grant of police aid, the Court can grant aid under its inherent powers and that Order 39 Rule 2(3) does not deal with implementation but with punishment for disobedience and therefore, the order can be implemented under Article 226 of the Constitution.” 6. The learned counsel further relied upon a judgment of the learned Single Judge in NEETHA CHINTAWAR AND ANOTHER v BODUGAM GOPI 2006(4)ALT 660 wherein the learned single judge held as follows: “Refusal to grant police protection amounts to practically rendering the order of temporary injunction ineffective and therefore, the Court can grant police aid by exercising its power under Section 151 CPC even though the party applying for police aid can institute proceedings under Rule 2(A) of Order 39 CPC for breach of temporary injunction.” 7. On the other hand, the learned counsel appearing for the respondents relied upon a decision in POLAVARAPU NAGAMANI AND OTHERS v PARCHURI KOTESHWARA RAO AND OTHERS 2010(2) ALD 41 (DB) wherein the Division Bench of this Court deprecated the practice of granting police aid for implementation for mere asking and issued certain guidelines in the matter of granting police aid by the Courts. The legal position as stated by the Division Bench on the issue of granting police aid to implement the orders granting temporary injunction or any other temporary relief is that the discretion entirely rests with the Court in exercising its jurisdiction. Whenever an application seeking for police aid is granted, it is not obligatory on the part of the Court to grant police aid. The Court can grant police aid exercising its discretion if the situation warrants, such an exercise of power by the Court, the police have to discharge several important functions in performance of their duty. Normally, the indulgence of the police in civil disputes shall be avoided and only in exceptional situations, the assistance of the police can be cited and granted when the situation goes out of the control of the parties and it cannot be remedied by merely resorting to the civil remedies available to the parties. Whenever the party, in whose favour the order granting temporary injunction is not able to prevent the invasion of the opposite party, the police aid cannot be granted in a routine manner and it can be only granted in exceptional circumstances warranting such an exercise of power by the Court. 8. In the instant case, the temporary injunction was obtained by the revision petitioner in respect of the vacant site and thereafter they constructed a small room in a portion of the schedule mentioned site. 8. In the instant case, the temporary injunction was obtained by the revision petitioner in respect of the vacant site and thereafter they constructed a small room in a portion of the schedule mentioned site. The allegation against the respondents is that after construction of the said structure, they trespassed into the property violating the orders of injunction and dismantled the said structure. The police protection was not in fact sought to protect the vacant site in respect of which the injunction order was granted. The said structure was raised by the petitioner only after obtaining the order of temporary injunction pending disposal of the suit. No permission was obtained from the Court to raise the structure. 9. In any event, the learned trial Court examined the entire situation having regard to the circumstances of the case and refused to grant police aid. When the Court after exercising discretionary power refused to invoke the inherent powers conferred on it, it cannot be said that any error of jurisdiction is committed by the Court and there is no irregularity or illegality in the order dated 03.12.2010 passed by the Principal Junior Civil Judge, Nizamabad in I.A.No.1121 of 2010 in O.S.No.462 of 2003, the revision petition is liable to be dismissed. 10. For all the reasons mentioned above, there are no valid grounds to interfere with the order dated 03.12.2010 passed by the Principal Junior Civil Judge, Nizamabad in I.A.No.1121 of 2010 in O.S.No.462 of 2003. The revision petition therefore fails and the same is dismissed. There shall be no order as to costs.