Andhra Pradesh High Court - Amravati
K Murali Krishna vs The State Of Andhra Pradesh on 4 May, 2022
Author: U.Durga Prasad Rao
Bench: U. Durga Prasad Rao
HON'BLE SRI JUSTICE U. DURGA PRASAD RAO
Writ Petition No.10178 of 2022
ORDER:
The petitioner prays for writ of mandamus declaring the inaction of 3 rd respondent to provide police protection to the petitioner's life and property from the hands of 4th respondent as illegal and for a consequential direction to 3 rd respondent to provide police aid.
2. The petitioner's case, succinctly, is thus:
(a) The petitioner is the owner of the vacant house site bearing D.No.449/B in an extent of 484 sq. yards in Nuzendla Village and Mandal purchased from Koppuravuri Kasi Viswanadham and others under a registered document bearing No.7326/2017 dated 08.11.2017. The petitioner intended to develop the said property and started operations. However, the respondent No.4 without having any right, interfered with the said property and tried to intervene. The petitioner with the assistance of his men could resist the illegal act of the respondent No.4 and his henchmen. Later, when the 4th respondent tried to encroach into petitioner's land, the petitioner lodged a complaint with 3 rd respondent, but he refused to register the case on the ground that the dispute is a civil matter. Hence, the petitioner was constrained to file O.S.No.17/2021 on the file of the Junior Civil Judge, Vinukonda. The 4th respondent did not turn up and remained ex parte. Hence, the trial Court after taking the evidence of plaintiff, passed a permanent injunction decree in favour of the petitioner.
(b) In spite of the decree, the 4th respondent and his henchmen have been trying to meddle with the property of the petitioner by using criminal force.
Therefore, the petitioner again approached the 3 rd respondent for granting police aid, but he refused to extend the protection.
Hence, the writ petition.
3. On the direction of this Court, the petitioner served notice on the 4 th respondent and filed proof of service. There is no representation for 4 th respondent.
4. Heard arguments of learned counsel for petitioner Sri N.V.R.Amarnath and learned Assistant Government Pleader (AGP) for Home representing the respondents 1 to 3.
5. Learned counsel for petitioner would submit that in spite of Civil Court granting perpetual injunction decree in favour of the petitioner, the 4th respondent who is unruly, is trying to meddle with petitioner's property by causing threat to petitioner's life and limb. When a competent Court grants a decree declaring the right of a person in respect of a property, it is the bounden duty of the police to extend protection to the decree holder to enjoy the fruits of the decree without any threat from the defendant or his henchmen. However, the 3 rd respondent refused to extend protection in spite of the decree. Therefore, this Court may give direction to the 3rd respondent to extend police protection to the petitioner. He placed reliance on Subrtamanya v. Principal Secretary, Home Department, Hyderabad1 to submit that the plenary jurisdiction under Article 226 of the Constitution of India can be invoked by a party to seek police protection for implementation of the rights granted to him under a civil decree. 1 MANU/HY/0725/2018 = 2020 (4) ALT 62
6. Learned AGP for Home, on written instructions, would submit that unless a specific direction is given by the Court, the police are not competent to redress the issue of the petitioner. He would further submit that the writ petition is not maintainable and the petitioner has to take recourse before the Civil Court. He place reliance on Polvarapu Nagamani v. Parchuri Koteshwara Rao2 and Kotak Mahindra Bank Limited v. The Station House Officer3.
7. The point for consideration is whether there are merits in the writ petition to allow?
8. Point: On factual side, the petitioner obtained decree against the 4 th respondent in O.S.No.17/2021 on the file of Junior Civil Judge, Vinukonda. The judgment dated 09.03.2022 shows that a suit was filed by the petitioner seeking perpetual injunction against the respondent restraining him and his men from interfering with peaceful possession and enjoyment of the plaintiff over the suit schedule vacant site bearing D.No.449/B to an extent of 484 sq. yards of vacant site situated at Nuzendla Village and Mandal. The 4th respondent who is the defendant in the suit remained ex parte and the trial Court taking the oral and documentary evidence on behalf of the plaintiff observed that he is the absolute owner of the plaint schedule property and he has been in possession and enjoyment of the same and granted decree in his favour.
(a) Be that it may, the grievance of the petitioner is that in spite of the aforesaid decree the 4th respondent and his henchmen have been trying to interfere with the petitioner's possession and enjoyment of the subject property by using criminal force and though the petitioner approached the 3 rd respondent / S.H.O., 2 MANU/AP/0710/2009 = 2010 (6) ALT 92 3 MANU/AP/0388/2015 = 2016 (2) ALT 164 Inavolu P.S. and requested for police aid for protecting his possession, he abdicated his duty.
(b) As can be seen from the submission of the learned AGP, the 3 rd respondent declined to grant protection in the absence of an order of the Court. It is his further contention that the petitioner has to approach the Civil Court and seek for execution of the decree and writ petition is not maintainable.
(c) The woes of a party who obtained injunction decree or interim injunction order can be of two fold. Either the opposite party might have violated the injunction decree or order or threatens to cause violation causing agony to the plaintiff. The question is what is the remedy for the plaintiff in such situations of actual violation or threat of imminent violation of the decree or order. Law is no more res integra on this aspect. When the injunction decree is violated, the plaintiff / decree holder can take recourse of executing the decree under Order XXI Rule 32 CPC, in which case the execution Court enforce the decree by ordering the detention of violator in civil prison or attachment of his property or by both. So far as violation of interim injunction order is concerned, recourse can be had under Order XXXIX Rule 2A CPC which lays down that the Court may order the property of the person guilty of disobedience or breach to be attached and may also order such person to be detained in civil prison for a term not exceeding three months. These are the remedies available when either the injunction decree or the order was violated. Be that it may, in cases where the violation of the injunction decree or order is imminent or it was violated, the judicial pronouncements held that the Courts in suitable cases can grant police protection under Article 226 of the Constitution and also under Section 151 CPC.
(d) In Rayapati Audemma v. Pothineni Narasimham4, a Division Bench of the High Court of A.P. relying upon the decision in Padam Sen v. State of Uttar Pradesh5 has held that the Civil Courts have inherent power under Section 151 CPC to give direction to the police authorities to render aid to the aggrieved parties with regard to the implementation of the orders of the Court or exercise of the rights created under the orders of the Court. The Division Bench held thus:
"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."
(e) In P.Shanker Rao v. B.Susheela6, a learned single Judge of the High Court of A.P. opined that the trial Court for ensuring obedience of the injunction order, can direct police aid as a preventive measure without the necessity of waiting till the injunction is breached. The said power though not expressly conferred, is a power incidental or ancillary to the exercise of the power to grant injunction pending the suit. Learned Judge however gave a caution that police aid should not be granted for mere asking and the Court has to be satisfied, prima facie that there is an imminent threat of violation of interim order if police does not intervene and that there is no other way of ensuring effective compliance.
(f) In Meera Chauhan v. Harsh Bishnoi7, the Apex Court held thus: 4
MANU/AP/0117/1971 = AIR 1971 AP 53 5 MANU/SC/0065/1960 = 1961 CriLJ 322] 6 MANU/AP/0160/2000 = AIR 2000 AP 214 7 MANU/SC/8795/2006 = 2007 (1) ADJ 216 12. " In Manohar v. Hira Lal [MANU/SC/0056/1961 : 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.
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. 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."
(g) In P.R. Murlidharan v. Swami Dharmananda Theertha Padar8, the Division Bench of the Hon'ble Apex Court has observed that a party cannot seek mandamus and for police protection in respect of property, status or right which remains to be adjudicated upon by a Civil Court in a properly instituted civil suit.
Under the guise of seeking writ of mandamus directing the police authorities to give protection, the petitioner cannot make the Forum adjudicating the civil rights. It is one thing to approach the High Court for issuance of a writ on the plea that a particular party has not obeyed a decree or order of injunction and deliberately flouting the decree and in spite of the petitioner's request the police authorities are not granting protection in terms of the decree, but it is quite another thing to seek writ of mandamus when his rights are still to be adjudicated by a Court.
(h) In Subrtamanya's case (supra 1), a learned single Judge of the High Court of Judicature at Hyderabad for the State of Telangana and the State of Andhra Pradesh after referring various decisions ordered police aid for implementation of the injunction decree granted by Civil Court. 8 MANU/SC/1380/2006 = (2006) 4 SCC 501
(i) In A.Bharathi v. State of Telangana9, referring several cases, learned Judge opined that police aid can be granted under Article 226 of the Constitution by the High Court apart from under Section 151 CPC by a civil court.
(j) In Kotak Mahindra Bank' case (3 supra), the Division Bench of the High Court of A.P. held thus:
"... There can be no higher purpose than the enforcement of orders of the High Court whereby the rights of a party are either confirmed or recognized. The power of the High Court under Article 226 of the Constitution of India, to enforce its own orders or the orders of the Civil Court, cannot be curtailed. (Satyanarayana Tiwari MANU/AP/0145/1982 : AIR 1982 AP 394; Calcutta Gas Company (Prop) Ltd. MANU/SC/0063/1962 : AIR 1962 SC 1044; T.C. Basappa v. T. Nagappa MANU/SC/0098/1954 : AIR 1954 SC 440)."
(k) In Sivasubramanyananda Swami v. Arunachalasamy Chidambaram10, in view of the conflicting decisions reference was made on the question whether the Civil Courts can issue directions to the police officials in order to execute the order of Civil Courts or to implement the order of injunction passed by the Civil Courts, a learned Judge answer the reference as follows:
"34. In the light of the above discussion of ours, the question referred is answered as follows:
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 in implementing an order of injunction passed by it."
9. Thus, the above jurimetrical jurisprudence gives a clear connotation that the Civil Court under Section 151 CPC and High Courts under Article 226 of the Constitution of India can in suitable cases direct the police to extend protection for implementation of injunction decree or order. The decision in Polavarapu Nagamani (supra 2) cited by the learned AGP for Home is slightly different. It 9 MANU/AP/0838/2016 = 2017(1) ALD 503 10 MANU/TN/0376/1992 = (1993) 1 MLJ 274 was observed that when a party who obtained injunction alleges that the injunction order has been violated, an application seeking police protection would not lie and the aggrieved party has to necessarily file execution petition under Order XXI Rule 32 CPC or an application under Order XXXIX Rule 2A CPC. However, it should be noted that in Gampala Anthaiah v. Kasarla Venkat Reddy11, a learned single Judge of the High Court of A.P. relying upon the decision of Supreme Court in P.R. Murlidharan's case (supra 8) has observed that the view expressed in Polavarapu Nagamani (supra 2), insofar 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. In that view, the argument of the learned Assistant Government Pleader for Home that the party has to approach the Civil Court for execution and writ petition is not maintainable cannot be countenanced.
10. In the result, this Writ Petition is allowed and the respondents 2 & 3 are directed to provide police protection to the petitioner for implementation of the decree in O.S.No.17/2021 on the file of the Junior Civil Judge, Vinukonda. No costs.
As a sequel, interlocutory applications, if any, pending for consideration shall stand closed.
_________________________ U.DURGA PRASAD RAO, J 04.05.2022 MVA 11 MANU/AP/3533/2013 = 2014 (2) ALT 661