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2013 DIGILAW 1183 (AP)

Gampala Anthaiah v. Kasarla Venkat Reddy

2013-12-18

M.S.RAMACHANDRA RAO

body2013
Judgment : This Revision is filed under Article 227 of the Constitution of India challenging the order dt.21.08.2013 in I.A.No.129 of 2013 in OS.No.197 of 2011 of the Junior Civil Judge, Suryapet. 2. The petitioners are defendants in the above suit. The respondent/plaintiff filed the suit for perpetual injunction restraining the defendants from interfering with his alleged peaceful possession and enjoyment of the plaint schedule property. 3. He also filed I.A.No.772 of 2011 in the suit seeking a temporary injunction restraining the defendants from interfering with his peaceful possession and enjoyment of the plaint schedule property, pending disposal of the suit. On 21-12-2011, an ad-interim injunction was granted in his favour. Subsequently, the defendants chose to remain exparte. Therefore, the temporary injunction order granted in I.A.No.772 of 2011 was made absolute on 20-09-2012. 4. The plaintiff filed I.A.No.129 of 2013 to direct the S.H.O., P.S. Atmakur to provide protection for implementation of the injunction order granted by the Court. He alleged that defendants are causing interference with his peaceful possession and enjoyment of the plaint schedule property even after the temporary injunction orders were made absolute on 20-09-2012 in I.A.No.772 of 2011 and that they are more in number, are strong and wealthy people while he is only one person, and it would not be possible for him to resist the illegal and unauthorised acts of the defendants. 5. The 1st defendant filed a counter for himself and other defendants opposing this plea and contended that the ad-interim injunction granted in favour of the plaintiff was not made absolute; that the defendants have filed counter on 04-07-2013 stating that the plaintiff was never in possession of the plaint schedule property and he has no right over it; and therefore, there is no question of the defendants interfering or committing illegal acts. He also contended that under the guise of the ex parte temporary injunction order, the plaintiff is trying to encroach into the plaint schedule property. He also contended that the plaintiff has not mentioned the date, time and nature of interference or the loss sustained by him and therefore, the I.A.No.129 of 2013 be dismissed. 6. By order dt.21-08-2013, the Court below allowed I.A.No.129 of 2013. He also contended that the plaintiff has not mentioned the date, time and nature of interference or the loss sustained by him and therefore, the I.A.No.129 of 2013 be dismissed. 6. By order dt.21-08-2013, the Court below allowed I.A.No.129 of 2013. It held that the ad-interim injunction granted in favour of the plaintiff in I.A.No.772 of 2011 on 21-12-2011 was made absolute on 20-09-2012; that the defendants had filed written statements in the suit but they have not filed any counter in I.A.No.129 of 2013; after granting several adjournments and also imposing costs, they were set exparte and the temporary injunction order was made absolute. It held that the contention of the defendants that the plaintiff is not in possession of the plaint schedule property cannot be accepted as the defendants did not file any counter in the I.A.No.772 of 2011 taking the said plea, that defendants cannot try to interfere with the possession of the plaintiff over the plaint schedule property as the order dt.20-09-2012 in I.A.No.771 of 2011 is still in existence; that it cannot just remain on paper; as the defendants are 12 in number, they are numerically stronger than the sole plaintiff; and therefore, I.A.No.129 of 2013 is allowed and the S.H.O. of P.S. Atmakur (S) shall provide necessary police aid to the plaintiff. 7. Challenging the said order, this Revision is filed. 8. Heard Sri P. Venkanna, learned counsel for the petitioner and Sri V.V.N. Narayana Rao, learned counsel for the respondents. 9. The learned counsel for the petitioners contended that the order passed by the Court below is erroneous; since there is an allegation made by plaintiff that defendants are causing interference with his peaceful possession and enjoyment, plaintiff can only file an application under Order 39 Rule 2-A of C.P.C. to punish the defendants for violating the temporary injunction order passed by the Court and they cannot seek police aid. He also relied on Polavarapu Nagamani and others. Vs. Parchuri Koteshwara Rao and others ( 2010(2) ALD 41 (DB)). 10. He also relied on Polavarapu Nagamani and others. Vs. Parchuri Koteshwara Rao and others ( 2010(2) ALD 41 (DB)). 10. The learned counsel for the respondents, on the other hand, contended that there is no illegality in the order passed by the Court below; that the very grant of an order for temporary injunction presupposes that the Court is satisfied as to the prima facie possession of the plaintiff over the plaint schedule property and also as to the balance of convenience in according protection for such possession pending disposal of the suit; if the defendant is aggrieved, he should file an appeal challenging the order, but having suffered such an order, he cannot be permitted to plead that the plaintiff is not in possession of the plaint schedule property. He relied on Neetha Chintawar and another Vs. Bodugam Gopi (2006(5) ALD 95). 11. I have noted the submissions of both sides. 12. There is no dispute that the ad-interim injunction granted by the trial Court in I.A.No.772 of 2011 on 21-12-2011 was made absolute on 20-09-2012. This order was not challenged by defendants. Therefore, the said order is subsisting. The plaintiff contended that notwithstanding the above order, the respondents are causing interference with his peaceful possession and enjoyment that he is only one person and the defendants are many and it would not be possible for him to resist the illegal and unauthorised acts of the defendants. In my opinion, the plaintiff is right in contending that it is not open to defendants to allege that he is not in possession of the plaint schedule property having suffered a temporary injunction order which has also been made absolute. In Neetha Chintawar (2 supra), this Court held : "The very grant of an order of temporary injunction pre-supposes that the Court is satisfied as to the prima facie possession of the plaintiff over the suit schedule property and as to the balance of convenience in according protection for such possession, pending disposal of the suit. If the defendant in a suit is aggrieved by the grant of such an order, the only course open to him would be to prefer an appeal and if necessary, pursue the further remedy of revision etc. Having suffered an order of temporary injunction, the defendant cannot be permitted to plead that the plaintiff is not in possession of the suit schedule property". 13. Having suffered an order of temporary injunction, the defendant cannot be permitted to plead that the plaintiff is not in possession of the suit schedule property". 13. The Division Bench in Polavarapu Nagamani and others (1 supra) held : "24. Of late, this Court has noticed that the number of suits for injunctions (classified as title suits) in all the Courts is on increase./ It is not without truth to say that more often than not frivolous suits of injunction are filed only to bring the defendants around the plaintiff's view and accept some via-media arrangement to avoid long drawn, expensive and time consuming proceedings in the Courts, during which the defendants would not be able to enjoy the property with peace. In all such cases, ordinarily, urgent motion is moved before the civil court, an order of ex-parte injunction is obtained and waiting for a period of fortnight or so, immediately application is moved under section 151 of CPC seeking police protection. Instances are not rare where defendants are subjected to harassment after obtaining order of injunction. The Courts in India have repeatedly held that the police have no role in civil adjudication, and therefore, the courts should be very very cautious and vigilance not to introduce police intervention in civil adjudication in indirect manner at the instance of a clever and resourceful plaintiffs. In view of this, we direct all the Civil Courts in the State of Andhra Pradesh to exercise abundant caution in dealing with interlocutory applications filed by the party obtaining an order of injunction seeking police protection. For the guidance of all the civil courts, we hold and lay down as under: (i) When the allegations are made by the party obtaining an order of injunction, that the said order has been violated, an application seeking police protection would not lie. The aggrieved party has to necessarily file execution petition under Order-XXI Rule 32 or an application under Order-XXXIX Rule2-A of CPC seeking attachment and/or arrest of the violator for contempt of the Court. (ii) When a petition is filed seeking police protection, whether or not to exercise of power under section 94 [e] or Section 151 of CPC, the facts alleged or pleaded, an order for police protection cannot be passed in a routine manner. (ii) When a petition is filed seeking police protection, whether or not to exercise of power under section 94 [e] or Section 151 of CPC, the facts alleged or pleaded, an order for police protection cannot be passed in a routine manner. (iii) If an application is filed by the person obtaining ad-interim injunction alleging that there is a threat of breach, disobedience or violation of the order of injunction, subject to proof, the court has power to order police protection imposing necessary conditions not to interfere with the life and liberty, and rights of the opposite party. (iv) The standard of proof required in the case of threat of disobedience of injunction or alleged breach,. Disobedience or violation of an order of injunction should be very high and it should be in between the standard of beyond reasonable doubt and a standard of balance on probabilities. Be it noted, as held by Supreme Court in Chottu Ram Vs. Urvashi Gulati [2001] 7 SCC 530 and Anil Ratan Sarkar V/s. Hirak Ghosh, [2002] 4 SCC-21, in all cases of contempt the plea should be proved applying the very high standard of proof and not mere affidavits or self-serving statements of the party seeking the intervention of the Court." 14. Relying on point No.1 above, the counsel for the petitioners would contend that the only remedy available to a party for violation of the order of injunction is to file an application under Order-21, Rule 32 or application under Order-39 Rule-2 [A] of CPC and respondents cannot file application for police protection. 15. Thus, in the above decision, the Division Bench of this Court held that when an application is filed by the person obtaining ad interim injunction alleging that there is a threat of breach, disobedience or violation of the order of injunction, subject to proof, the Court has power to order police protection. But if he alleges that the said order has been violated, an application for police protection would not lie. 16. But if he alleges that the said order has been violated, an application for police protection would not lie. 16. However, the Supreme Court in Meera Chauhan v. Harsh Bishnoi ( (2007) 12 SCC 201 ), held that when parties violate order of injunction or stay order or act in violation of the said order the court can, by exercising its inherent power, give appropriate direction to the police authority to render aid to the aggrieved parties for the due and proper implementation of the orders passed in the suit and also order police protection for implementation of such order. It declared: "14. Before we deal with this question of possession as to who was in actual possession at the relevant point of time it would be appropriate to note that the order for restoration was passed by the trial court on an application under Section 151 of the Code of Civil Procedure. A question may arise whether such an application can be entertained by the court when specific provision under Order 39 of the Code of Civil Procedure has been made for grant of injunction in the form of mandatory order in the exercise of power under the said order. Therefore to decide this aspect of the matter, let us consider the scope of Section 151 of the Code of Civil Procedure. Section 151 reads as under: "151. Saving of inherent powers of Court.-Nothing in this Code shall be deemed to limit or otherwise affect the inherent power of the Court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the Court." 15. On a bare perusal of Section 151 of the Code of Civil Procedure, it cannot be said to be in dispute that Section 151 confers wide powers on the court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the court. 16. The power of Section 151 to pass order of injunction in the form of restoration of possession of the code is not res integra now. 17. 16. The power of Section 151 to pass order of injunction in the form of restoration of possession of the code is not res integra now. 17. In Manohar Lal Chopra v. Rai Bahadur Rao Raja Seth Hiralal ( AIR 1962 SC 527 ) while dealing with the power of the court to pass orders for the ends of justice or to prevent the abuse of the process of the court, this Court held that the courts have inherent jurisdiction to issue temporary order of injunction in the circumstances which are not covered under the provisions of Order 39 of the Code of Civil Procedure. However, it was held by this Court in the aforesaid decision that the inherent power under Section 151 of the Code of Civil Procedure must be exercised only in exceptional circumstances for which the Code lays down no procedure. 18. At the same time, it is also well settled that when parties violate order of injunction or stay order or act in violation of the said order the court can, by exercising its inherent power, put back the parties in the same position as they stood prior to issuance of the injunction order or give appropriate direction to the police authority to render aid to the aggrieved parties for the due and proper implementation of the orders passed in the suit and also order police protection for implementation of such order. 19. It is also well settled that when in the event of utter violation of the injunction order, the party forcibly dispossesses the other, the court can order restoration of possession to the party wronged." (emphasis supplied) 17. Similar view was expressed by the Supreme Court in P.R. Muralidharan and others v. Swamy Dharmananda Theertha Padar and others ( (2006) 4 SCC 501 ) . There the Supreme Court had an occasion to consider whether a High Court under Article 226 of the Constitution of India could grant the relief of police protection. It held that in a given case, a person may be entitled to police protection having regard to the threat perception to his life and liberty or for protection of rights declared by a decree or order passed by a civil court, and if court is satisfied that the authorities have failed to perform their duties. It held that in a given case, a person may be entitled to police protection having regard to the threat perception to his life and liberty or for protection of rights declared by a decree or order passed by a civil court, and if court is satisfied that the authorities have failed to perform their duties. It held that there would be no such entitlement for protection of the writ petitioner's rights in question (to property or to an office and discharging of certain functions) when the writ petitioner's rights to do so are open to question as manifested by the pleadings themselves. It held that disputed questions of fact cannot be gone into in a writ proceeding and that the jurisdiction of a civil court being wide and plenary, the High Court cannot grant such a relief in a writ proceeding. It held: "17. A writ petition under the guise of seeking a writ of mandamus directing the police authorities to give protection to a writ petitioner, cannot be made a forum for adjudicating on civil rights. It is one thing to approach the High Court, for issuance of such a writ on a plea that a particular party has not obeyed a decree or an order of injunction passed in favour of the writ petitioner, was deliberately flouting that decree or order and in spite of the petitioner applying for it, or that the police authorities are not giving him the needed protection in terms of the decree or order passed by a court with jurisdiction. But, it is quite another thing to seek a writ of mandamus directing protection in respect of property, status or right which remains to be adjudicated upon and when such an adjudication can only be got done in a properly instituted civil suit. It would be an abuse of process for a writ petitioner to approach the High Court under Article 226 of the Constitution seeking a writ of mandamus directing the police authorities to protect his claimed possession of a property without first establishing his possession in an appropriate civil court. The temptation to grant relief in cases of this nature should be resisted by the High Court. The wide jurisdiction under Article 226 of the Constitution would remain effective and meaningful only when it is exercised prudently and in appropriate situations. ... ... ... 19. The temptation to grant relief in cases of this nature should be resisted by the High Court. The wide jurisdiction under Article 226 of the Constitution would remain effective and meaningful only when it is exercised prudently and in appropriate situations. ... ... ... 19. A writ for "police protection" so-called, has only a limited scope, as, when the court is approached for protection of rights declared by a decree or by an order passed by a civil court. It cannot be extended to cases where rights have not been determined either finally by the civil court or, at least at an interlocutory stage in an unambiguous manner, and then too in furtherance of the decree or order." 18. So in this decision also, the Apex Court held that police protection may be granted in writ jurisdiction when a Court is approached for protection of rights declared by a decree or by an order passed by a civil court granting an injunction in favor of the applicant and the same was being deliberately flouted. 19. It appears that the Division Bench in Polavarapu Nagamani (1 supra) did not notice the above two decisions of the Supreme Court which have held that even in cases where there is a violation of an injunction order in a suit (as opposed to a situation where only a threat of violation exists) , orders of police protection may be granted. No doubt it is necessary that the rights of the parties should be determined either finally in the suit or, at least at an interlocutory stage in an unambiguous manner. Therefore, the view of the Division Bench in Polavarapu Nagamani (1 supra), in so far as it held that an application for police protection is not maintainable if there is a violation of an injunction order passed in a suit, has to be held to be per incuriam. 20. So a party, who obtained temporary injunction orders, and is complaining of violation of such orders, may file not only an execution petition under Order XXI Rule 32 CPC or an application under Order XXXIX Rule 2-A of CPC seeking attachment and/or arrest of the violator for Contempt of Court, but also an application seeking police protection under Section 151 CPC from the Civil Court. With great respect to the Division Bench, I do not agree with it's view that if a party were to be allowed to seek police protection under Section 151 CPC to implement an interim injunction order granted in his favour, it would render Order XXXIX Rule 2A and Order XXI Rule 32 otiose. 21. Of course, even the Division Bench accepted that the relief of police protection may be granted in a situation where an application is filed by the person obtaining ad interim injunction alleging that there is a threat of breach, disobedience or violation of order of injunction, subject to proof. 22. A Division Bench of this Court in Satyanarayana Tiwari v. SHO, PS, Santoshnagar ( AIR 1982 AP 394 (DB)), had held that no authority in the State, Revenue or Police, can ignore the finding of the Civil Court or refuse to take steps to see that the order of the Civil Court is implemented and the party, in whose favour there is an order of the Civil Court should get all help to maintain the law and order and the other party cannot be allowed to contravene the injunction order and create law and order problem. No doubt, these observations were made in the context of the power of the High Court under Article 226 of the Constitution of India to issue a writ or direction to police to enforce the orders of the Civil Court to provide protection in furtherance of an order of injunction, but in my opinion, the said observations equally apply to a situation where a party approaches a Civil Court for police protection having obtained an interlocutory order for temporary injunction. 23. The High Courts of Bombay and Madras have also taken the view that police assistance may be granted for enforcing or for implementing orders of temporary injunction. In Smt. Nirabai J. Patil v. Narayan D. Patil (AIR 2004 Bombay 225), the Bombay High Court held : "If Civil Court which has passed the order of temporary injunction takes a view that there is no power vested in the Court to direct the police to grant assistance for enforcing or for implementation of the order of temporary injunction, the very purpose of granting order of temporary injunction may be trust rated in a given case. It is the duty of every police Officer to enforce the law of the land. It is the duty of every police Officer to enforce the law of the land. The duties of police officers are reflected in Section 64 and Section 66 of the Bombay Police Act, 1951. In my opinion, the view taken by the learned Trial Judge that "There is no provision for police and for execution of interim order", is totally incorrect. The learned Judge failed to appreciate that he has a power under Section 151 of the said Code to pass the order directing that police help should be made available provided facts of the case warrant passing of such order. 8. As observed by this Court in the aforesaid judgment, the grant of police aid is an extreme step and therefore order for grant of police help or police assistance cannot be made unless the Court is fully convicted about the existence of grave emergency such as apprehension of violence by the persons against whom the order has been passed. It is very difficult to give exhaustive list of circumstances in which the Court can exercise the said power. However, said power is to be exercised with caution and the said power can be exercised only after the Court is fully convinced of existence of grave situation warranting exercise of said power." 24. In N. Karpagam and others v. P. Deivanaiammal and others (AIR 2003 Madras 219), Justice P. Sathasivam, (as His Lordship then was) also held that the Civil Court can give direction to the Police authorities to render aid to the aggrieved party with regard to implementation of the injunction order passed by the Court. In N. Karpagam and others v. P. Deivanaiammal and others (AIR 2003 Madras 219), Justice P. Sathasivam, (as His Lordship then was) also held that the Civil Court can give direction to the Police authorities to render aid to the aggrieved party with regard to implementation of the injunction order passed by the Court. His Lordship held : "It is also relevant to refer the Division Bench decision of this Court reported in 1992 TLNJ 120 (cited supra), wherein after considering the relevant provisions relating to grant of injunction and Section 151 C.P.C. the Bench has concluded that, "In view of the above position of law, it has to be held that in appropriate cases, directions under Section 151 of the Code can be issued by the Civil Courts to the police authorities to render aid to the aggrieved parties for the due and proper implementation of the order of temporary injunction or a decree for permanent injunction granted by the Civil Court." finally, Their Lordships have concluded that, "In appropriate cases, the Civil Court has the power and is indeed under a duty, 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 the Civil Courts or implementing an order of injunction passed by it." 25. An order of temporary injunction has to be obeyed by the parties to it and when the plaintiff complains that the defendant is committing breach of the said order and seeks police protection, the Court is under an obligation to accord such protection. Unless this is done, the rule of law will not prevail and judicial orders would not be effectively implemented. Granting of such orders would uphold the dignity and effectiveness of the judiciary. 26. Therefore I am of the opinion that the Court below rightly granted police aid to the respondent. 27. I therefore do not find any merit in the Revision. The same is accordingly dismissed. No costs. 28. Miscellaneous applications if any pending in this Revision Petition shall stand closed.