Research › Search › Judgment

Kerala High Court · body

2018 DIGILAW 986 (KER)

Raman v. State Of Kerala

2018-12-03

N.ANIL KUMAR, P.R.RAMACHANDRA MENON

body2018
JUDGMENT : N. ANIL KUMAR, J. 1. This writ petition is filed seeking for a writ of mandamus directing respondents 1 and 2 to give police protection and assistance to the petitioners to reconstruct the iron fence on the boundary separating the property of the petitioners from that of the respondents 3 to 6 so as to prevent them from trespassing into the petitioners' property and committing acts of waste therein. 2. Dispute between the parties centres round the ownership and possession of 50 cents of property in Poolakode amsom and desom in Kozhikode Taluk as per Kanam deed No.11/1969 of Sub Registrar's Office, Chathamangalam. Having obtained title and possession to the said property by virtue of the five settlement deeds, petitioners 1 and 2 have been in absolute possession and enjoyment of the property. Respondents 3 to 6 are residing on the eastern side of the property of the petitioners and they have two ways to their property. According to the petitioners, respondents 3 to 6 destructed a portion of the compound wall and made an attempt to carve out a pathway. Hence, the petitioners filed O.S.No.167 of 2015 before the Additional Munsiff's Court-II, Kozhikode against respondents 3 to 6 for a decree of prohibitory injunction. An Advocate Commission was taken out by the petitioners and the Advocate Commissioner filed Ext.P1 report and plan before the court below. Respondents 3 to 6 remained ex parte to the proceedings and consequently, Ext.P2 decree and Ext.P3 judgment were passed by the learned Munsiff. Consequent to the passing of the decree, petitioners filed Ext.P6 Execution Petition before the Munsiff's Court to execute the decree. Thereafter, the petitioners filed Ext.P7 application for setting aside the ex parte order along with Ext.P8 petition to condone the delay. It is the case of the petitioners that on 7.9.2018, the respondents again made an attempt to trespass into the property by breaking the iron fence. The petitioners filed Ext.P9 complaint before the second respondent to provide police protection and assistance to reconstruct the iron fence which has been destroyed by the respondents. The second respondent did not take any action pursuant thereto. Hence this writ petition is filed for police protection for the life and property of the petitioners and also enable the petitioners to reconstruct the iron fence. 3. The second respondent did not take any action pursuant thereto. Hence this writ petition is filed for police protection for the life and property of the petitioners and also enable the petitioners to reconstruct the iron fence. 3. One of the contentions, which has been raised before this Court was the maintainability of the writ petition on the ground that the petitioners could not approach the writ court for the purpose of determining disputed questions of fact, especially, Ext.P7 application to set aside Ext.P2 decree and Ext.P3 judgment is pending adjudication before the competent civil court. The petitioners, on the other hand, contended that the State is bound to give protection to the life and property of the petitioners as guaranteed under Article 21 of the Constitution of India and are duty bound to give effect to the decree pronounced by the competent civil court. 4. The first question to be considered is as to whether any statutory duty is cast upon the Police to assist the petitioners in putting up an iron fence to their property. The duties of the Police primarily include the detection, prevention and investigation of crimes and also maintaining law and order situation. However, there cannot be any doubt that the prayer for issuance of a writ of mandamus can be granted against the State commanding it to perform its legal duties when it fails or neglects to do so. 5. The question as regard the grant of a relief for providing police protection in a somewhat similar case came up before this Court in Kunhumuhammed v. Bava Haji [ 1999(2) KLT 816 ] . A Division Bench of this Court has held as follows:- “7. ….............................When there is dispute between parties and when it is only an interim ex parte order passed by the Munsiff which alone is in force, this Court shall not interfere in the matter invoking its jurisdiction under Article 226 of the Constitution of India with a direction for police aid. xx xx xx xx xx xx 8. ….............................When there is dispute between parties and when it is only an interim ex parte order passed by the Munsiff which alone is in force, this Court shall not interfere in the matter invoking its jurisdiction under Article 226 of the Constitution of India with a direction for police aid. xx xx xx xx xx xx 8. We are of the view that this Court shall not interfere in matters involving civil rights with an order of police protection on the basis of an ad interim ex parte order of the Civil Court and that only a final order passed under Rule 1 or Rule 2 of Order 39 of the Code of Civil Procedure can be enforced with the assistance of the police. ................................... Courts should be reluctant to grant police protection on the basis of ex parte injunction orders, which would only pave the way for farther litigation between parties, since the parties, on the basis of the police protection order and with the connivance of the police, complete constructions or commit waste or do other acts which they would not be able to do even after final orders are passed by the Civil Court...........” 6. This legal principle has been followed in a Division Bench decision of this Court reported in Devadasan v. State of Kerala [ 2005(3) KLT 739 ]. 7. In this context, it would be useful to refer to the decision of the Apex Court in P.R.Muralidharan and Others v. Swami Dharmananda Theertha Padar and Others [ (2006) 4 SCC 501 ], which reads as follows:- “12. It is one thing to say that in a given case a person may be held to be entitled to police protection, having regard to the threat perception, but it is another thing to say that he is entitled thereto for holding an office and discharging certain functions when his right to do so is open to question. A person could not approach the High Court for the purpose of determining such disputed questions of fact which were beyond the scope and purport of the jurisdiction of the High Court while exercising writ jurisdiction as it also involved determination of disputed questions of fact. The respondent I who sought to claim a status was required to establish the same in a court of law in an appropriate proceeding. The respondent I who sought to claim a status was required to establish the same in a court of law in an appropriate proceeding. He for one reason or the other, failed to do so. The provisions of Order 9 Rule 9 of the Code of Civil Procedure stare on his face. He, therefore, could not have filed a writ petition for getting the self same issues determined in his favour which he could not do even by filing a suit. Indeed the jurisdiction of the writ court is wide while granting relief to a citizen of India so as to protect his life and liberty as adumbrated under Article 21 of the Constitution, but while doing so it could not collaterally go into that question, determination whereof would undoubtedly be beyond its domain. What was necessary for determination of the question arising in the writ petition was not the interpretation of the documents alone, but it required adduction of oral evidence as well..............” It was further held as follows:- “13. Furthermore, the jurisdiction of the civil court is wide and plenary. In case of this nature, the writ of proceedings cannot be a substitute for a civil suit.” 8. In this case, admittedly, an ex parte decree was passed as per Ext.P2 restraining the respondents 3 to 6 by way of permanent prohibitory injunction from trespassing into the plaint schedule property therein or from carving out any way through the said property. Ext.P7 application for setting aside the ex parte decree along with Ext.P8 petition to condone the delay are pending consideration before the learned Munsiff. From the aforesaid Exts.P7 and P8 applications, it cannot be said that the rights of the parties have been determined finally by the Civil Court. The ex parte decree was granted on a consideration of the materials submitted by the plaintiffs/petitioners herein without hearing the defendants/respondents 3 to 6. Hence, it is not open to the petitioners to seek police protection merely relying on the ex parte decree granted by the civil court. 9. In yet another decision of the Apex Court reported in Moran.M.Baselios Marthoma Mathews II and others v. State of Kerala and Others [ (2007)6 SCC 517 ], the Apex Court held as under:- “7. Hence, it is not open to the petitioners to seek police protection merely relying on the ex parte decree granted by the civil court. 9. In yet another decision of the Apex Court reported in Moran.M.Baselios Marthoma Mathews II and others v. State of Kerala and Others [ (2007)6 SCC 517 ], the Apex Court held as under:- “7. The short question which arises for consideration, in our opinion, is as to whether in a situation of this nature, the High Court should not have gone into the rival contentions of the parties..............................” xx xx xx xx xx xx 12. …............................... Such disputed questions in regard to title of the properties or the right of one group against the other in respect of the management of such a large number of Churches could not have been the subject-matter for determination by a writ court under Article 226 of the Constitution of India in the garb of grant of police protection to one or the other appellants. xxxx xx xx xx xx xx 15..................................The High Court committed a manifest error in going into the disputed questions of title as also the disputed questions in regard to the rights of a particular group to manage the Churches, in exercise of its writ jurisdiction, particularly, when such questions are pending consideration before competent civil courts. …................” 10. In view of the legal principles cited supra, we have no doubt in our mind that disputed questions in regard to the title and possession of the properties cannot have been the subject matter for determination by a writ court under Article 226 of the Constitution of India under the guise of police protection, to the petitioners, particularly, when such questions are pending consideration before the competent civil court. Even otherwise, the petitioners, who obtained a decree for permanent prohibitory injunction from a competent court against the respondents, are at liberty to approach the execution court for executing the decree as contemplated under Order XXI Rule 32 of the Code of Civil Procedure, 1908. Having resorted to execution proceedings by virtue of Ext.P6 Execution Petition, the petitioners are not justified in insisting upon before this Court for issuance of a writ or in the nature of mandamus directing the Police Authorities to protect their claimed possession of the properties without establishing their possession finally in an appropriate civil court. Having resorted to execution proceedings by virtue of Ext.P6 Execution Petition, the petitioners are not justified in insisting upon before this Court for issuance of a writ or in the nature of mandamus directing the Police Authorities to protect their claimed possession of the properties without establishing their possession finally in an appropriate civil court. In the result, the writ petition fails and the same is dismissed.