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2016 DIGILAW 150 (TRI)

Banibrata Roy Barman S/o Sri Santi Bhusan Roy Barman v. Binoy Bhusan Das S/o Lt. Barada Prasad Das

2016-07-19

T.VAIPHEI

body2016
JUDGMENT : Heard Mr. K.N. Bhattacharji, the learned senior counsel assisted by Mr. Kohinoor N. Bhattacharji, the learned counsel for the petitioner and also heard Mr. G.K. Nama, the learned counsel for the respondents. 2. In this revision petition, the petitioner is questioning the legality of the order dated 17.03.2016 passed by the learned Civil Judge (Junior Division), Dharmanagar, North Tripura in T.S No.58/2009 rejecting his application seeking police assistance during the removal by him of stone dust from the suit land; he was also warned not to file such merit-less applications before his Court in future without understanding the question of law involved so that the precious judicial time could be saved. 3. The petitioner instituted title suit before the trial court seeking a declaration that he is the lessee under the defendant-respondents and is entitled to retain the possession of the suit land till 27.09.2008 and for issuing a mandatory injunction directing the respondents to execute the lease deed in his favor as was written on 14.07.2008. After filing of the suit, he filed an application under Order XXXIX, Rule 1 & 2 of the Code of Civil Procedure for issuing an ad-interim injunction to restrain the respondents from disturbing his possession over the suit land till disposal of the main suit. As already noticed, the trial court passed the ex-parte order of ad-interim injunction restraining the respondents from disturbing his peaceful possession of the suit land. 4. Apparently, in exercise of his possessory right over the suit land, the petitioner decided to collect stone dusts which are found on the suit land for sale to others, but the respondents are alleged to have obstructed such activities carried on by him on the suit land. This prompted him to file the application for ad-interim injunction, which, as already noticed, was eventually granted by the trial court. The trial court, after hearing the parties, subsequently made the ex-parte interim injunction in question absolute. According to the petitioner, he thereafter filed an application under Section 151, C.P.C to provide police assistance to him for the enforcement of the said interim injunction. There is no disputed that the interim injunction has not been vacated or modified till now. The trial court, after hearing the parties, subsequently made the ex-parte interim injunction in question absolute. According to the petitioner, he thereafter filed an application under Section 151, C.P.C to provide police assistance to him for the enforcement of the said interim injunction. There is no disputed that the interim injunction has not been vacated or modified till now. The question to be considered is whether the trial court is correct in holding that Section 151, C.P.C cannot be invoked by the petitioner for taking police assistance in the removal of the stone dusts by him from the suit land. The trial court took the view that when there is already a provision under Order XXXIX Rule 2A, C.P.C to deal with breach of an injunction order, the question of invoking Section 151, C.P.C does not arise. He, therefore, rejected the application of the petitioner. 5. The learned senior counsel for the petitioner drawing my attention to the four decisions of the various High Courts, namely, Vinayak Balkrishna Samant and others Vs. Mahanagar Telephone Nigam Ltd., reported in AIR 2004 Bom 227 , M.D. Hair Babu Vs. Returning Officer, Kudayathoor Service Co-operative Bank Ltd., reported in AIR 1999 Ker 5 , Vidya Charan Shukla Vs. Tamil Nadu Olympic Association and another, reported in AIR 1991 Mad 323 and Rayapati Audemma Vs. Pothineni Narasimham, reported in AIR 1971 AP 53 , submits that the trial court has the inherent power under Section 151, C.P.C to provide the assistance of the police for the enforcement of the interim injunction passed by a civil court. According to the learned senior counsel, the provision of Order XXXIX Rule 2A, C.P.C operates in a different field and this jurisdiction is punitive in nature whereas enforcement of interim injunction is a preventive remedy, and the two should not be confused. The learned senior counsel, therefore, contends that the trial court has completely overruled the aforesaid decisions of the various High Courts holding that the police assistance can be provided for the enforcement of the injunction order passed by a civil court. 6. The learned senior counsel, therefore, contends that the trial court has completely overruled the aforesaid decisions of the various High Courts holding that the police assistance can be provided for the enforcement of the injunction order passed by a civil court. 6. On the other hand, the learned counsel for the respondents submits that when there is already a provision under Order XXXIX Rule 2A, C.P.C for punishing a person who is found to have disobeyed the interim injunction duly passed by a competent court, the provision of Section 151, C.P.C cannot be invoked by any party. To fortify his submission, the learned counsel for the respondents relies on Apsarun Begum and Others Vs. Sk. Gulam Nabi and Others reported in 2014 LEGAL EAGLE (ORI) 71 holding that when an order has been passed in the application under Order XXXIX Rules 1 & 2, C.P.C for granting ex-parte status quo order, the same is in fluid stage and therefore, the trial court has correctly rejected the application under Section 151, C.P.C for implementation of the order of the status quo. 7. At this stage, it may be recalled that the interim ex-parte injunction has already been made absolute by the trial court and the appeal thereagainst filed before this Court was also dismissed. As early as 1971, a Division Bench of the Andhra Pradesh High Court in Rayapati Audemma case (supra) held as follows:- “In view of these clear observations of their Lordships with regard to the scope and ambit of the inherent powers of the court under Section 151, Civil P.C. we are clearly of the opinion that in order to do justice between the parties or to prevent the abuse of process of the court, the civil courts have ample jurisdiction to give directions to the police authorities to render aid to the aggrieved parties with regard to the implementation of the orders of Court or the exercise of the rights created under orders of court. That the police authorities owe a legal duty to the public to enforce the law is clear from a decision of the Court of Appeal, reported in R. v. Metropolitan Police Commr. That the police authorities owe a legal duty to the public to enforce the law is clear from a decision of the Court of Appeal, reported in R. v. Metropolitan Police Commr. (1968) 1 AllER 763 , where Lord Dening, M. R. observed at page 769 as follows: “I hold it to be the duty of the Commissioner of police, as it is of every chief constable to enforce the law of the land...............but in all these things he is not the servant of anyone, save of the law itself. The responsibility for law enforcement lies on him. He is answerable to the law and to the law alone". The same view was expressed by the other learned Judges. We may also refer to the judgment of the Madras High Court, in Varadachariar v. Commr. of Police, (1969) 2 Mad LJ 1 where the learned Judge, Kailasam, J., after referring to the English case cited above held that the Commissioner of Police should proceed and act in accordance with the directions indicated in the aforesaid judgment. 9. If the police authorities are under a legal duty to enforce the law and the Public or the citizens are entitled to seek directions under Article 226 of the Constitution for discharge of such duties by the Police Authorities we feel that the civil courts can also give appropriate directions under Section 151 Civil P. C. to render aid to the aggrieved parties for the due and proper implementation of the orders of Court. It cannot be said that in such a case the exercise of the inherent power under Section 151, Civil P.C. is devoid of jurisdiction. There is no express provision in the Code prohibiting the exercise of such a power and the Court can give appropriate directions at the instance of the aggrieved parties to the police authorities to render its aid for enforcement of the Court's order in a lawful manner.” 8. In the light of the aforesaid decision as well as the decisions of the 3(three) other High Courts, I am of the view that the learned Civil Judge is not correct in holding that Section 151, C.P.C cannot be invoked to extend police assistance for enforcement of an interim injunction even when there is a provision under Order XXXIX Rule 2A, C.P.C for punishing a party who disobeys the injunction order of a civil court. The learned Civil Judge has, therefore, failed to exercise the jurisdiction in him by law or has improperly exercised his jurisdiction in rejecting such an application for providing police assistance. The judgment cited by the learned counsel for the respondents is clearly distinguishable on facta in that in the said case, the ex-parte interim injunction has not been made absolute by the trial court while issuing the order for providing police assistance to enforce the injunction order. This makes all the differences. The impugned order is, therefore, liable to be interfered with. 9. For the reasons stated in the foregoing, the impugned order dated 17.03.2016 passed by the learned Civil Judge (Junior Division), Dharmanagar, North Tripura in so far as it rejected the application of the petitioner for police assistance, is, accordingly, set aside. The Officer-in-charge, Panisagar police station is, therefore, directed to extend police assistance to the petitioner for implementation of the order of interim injunction passed by the learned Civil Judge (Junior Division), Dharmanagar, North Tripura in T.S No.58/2009, for which the petitioner shall pay reasonable costs and expenses for the upkeep of the police. 10. The petition stands disposed of.