Andhra Pradesh High Court - Amravati
Vanaparthi Subramanyam vs The State Of Andhra Pradesh on 26 September, 2022
Author: Cheekati Manavendranath Roy
Bench: Cheekati Manavendranath Roy
THE HON'BLE SRI JUSTICE CHEEKATI MANAVENDRANATH ROY
WRIT PETITION No.20555 of 2022
ORDER:-
This Writ Petition for mandamus is filed to declare the action of respondents 2 to 5 in not providing police aid for implementing the permanent injunction decree passed in O.S.No.264 of 2009, dated 14.03.2012, on the file of the learned Additional Senior Civil Judge, Tirupathi, in favour of the 1st petitioner which in turn was confirmed in A.S.No.54 of 2012 on the file of the learned V Additional District Judge, Tirupathi, as illegal and consequently sought direction to respondents 2 to 5 to provide police aid for implementing the aforesaid permanent injunction decree passed by the competent civil Court.
2. Heard learned counsel for the petitioners, learned Assistant Government Pleader for Home appearing for respondents 1 to 5 and Sri R. Ravi Kumar, learned counsel appearing for the unofficial respondents 6 to 8.
3. The 1st petitioner is the plaintiff in O.S.No.264 of 2009 on the file of the learned Additional Senior Civil Judge, Tirupathi. The said suit was filed for grant of permanent injunction against respondents 7 and 8 herein and two others by name M. Anandamma and M. Sivakota Reddy. The said M. Anandamma and M. Sivakota Reddy are not parties to the 2 present Writ Petition. Only defendants 3 and 4 in the said suit are shown as respondents 7 and 8 in the present Writ Petition.
4. The said suit was decreed on 14.03.2012 in favour of the 1st petitioner granting decree of permanent injunction restraining the defendants therein from interfering with the possession of the 1st petitioner in respect of the plaint schedule property.
5. Aggrieved by the said judgment of permanent injunction, defendants 2 to 4 therein alone preferred an appeal in A.S.No.54 of 2012 on the file of the learned V Additional District Judge, Tirupathi, against the 1st petitioner. The said appeal was dismissed confirming the judgment of permanent injunction passed by the trial Court, as per the judgment dated 27.06.2019.
6. The grievance of the 1st petitioner is that despite the fact that there has been a permanent injunction decree passed by the competent civil Court which in turn was confirmed by the first appellate Court that the respondents 7 and 8 along with respondent 6 have been interfering with the possession of the 1st petitioner in respect of the said land. Therefore, he has approached the respondent - police officials seeking police aid. However, the respondent - police officials are not providing any police aid for effective implementation of the said permanent 3 injunction decree. Therefore, the 1st petitioner is before this Court by way of filing this instant Writ Petition seeking grant of police aid for effective implementation of the said permanent injunction decree.
7. The said claim of the 1st petitioner for grant of police aid has been primarily opposed by learned counsel appearing for respondents 6 to 8 on the ground that the Second Appeal was preferred by respondents 7 and 8 along with others on the file of this Court in S.A.No.559 of 2019 and that the said appeal is pending disposal before this Court. Therefore, he would submit that as the matter did not attain finality that the 1st petitioner is not entitled for grant of any police aid for implementation of the said decree. Learned counsel for the unofficial respondents 6 to 8 would also oppose the Writ Petition on the ground that the 1st petitioner did not file any execution petition before the executing Court under the provisions of Order XXI of Civil Procedure Code and when he got an effective efficacious remedy of seeking execution of the said decree by way of initiating execution proceedings before the said Court that he cannot invoke the jurisdiction of this Court under Article 226 of the Constitution of India for grant of police aid. Therefore, he would pray for dismissal of the Writ Petition.
8. Learned Assistant Government Pleader for Home appearing for respondents - police officials would submit that 4 even though there is a decree of permanent injunction in favour of the 1st petitioner passed by the competent civil Court which was confirmed in the appellate Court, as the dispute arises out of a civil suit in view of the decree passed by the civil Court that usually the police will not interfere in the said civil dispute and grant police aid. He would submit that if the civil Court which passed the decree or this Court directs the police to provide police aid for implementing the decree of permanent injunction that the respondent - police officials would provide adequate police aid to the 1st petitioner for effective implementation of the said permanent injunction decree.
9. The record reveals that the 1st petitioner is the sole plaintiff in O.S.No.264 of 2009 on the file of the learned Additional Senior Civil Judge, Tirupathi. The said suit was filed for permanent injunction against respondents 7 and 8 and two others by name M. Anandamma and M. Sivakota Reddy. The said suit was decreed granting permanent injunction in favour of the 1st petitioner and against the defendants therein as per decree dated 14.03.2012. The civil Court restrained the defendants therein from interfering with the possession of the 1st petitioner in respect of the property covered by the plaint schedule of the said suit. The appeal preferred by three of the defendants in the said suit in A.S.No.54 of 2012 on the file of the learned V Additional District Judge, Tirupathi, came to be 5 dismissed as per the judgment, dated 27.06.2019, confirming the permanent injunction decree passed by the trial Court.
10. Although it is stated that the defendants therein preferred second appeal in S.A.No.559 of 2019 to this Court and the same is pending, learned counsel for the unofficial respondents herein would fairly concede that no order of stay of execution of the said permanent injunction decree was passed by this Court. Therefore, as there is no order of stay granted against the said permanent injunction decree, the said decree is in force. So, the 1st petitioner is entitled for grant of police aid for effective implementation of the said permanent injunction decree passed by the competent civil Court. The unofficial respondents herein are not justified in interfering with the possession of the 1st petitioner in respect of the said land in spite of the fact that there is a valid permanent injunction decree against them passed by a competent civil Court not to interfere with the possession of the 1st petitioner in respect of the said land.
11. It is well settled law that when a permanent injunction decree was passed by the competent civil Court, the plaintiff in the said suit is entitled for grant of police aid either by an order passed by the Court which passed the said decree or by an order passed by this Court in exercise of its jurisdiction under Section 226 of the Constitution of India. The law in this regard is not res integra and the same has been dealt with in 6 the case of Rai Naramma v. State of Andhra Pradesh1 wherein this Court held at para 7 as follows:
"It is now well settled law that only when there is a decree for permanent injunction and only when there is an order of temporary injunction in an interlocutory application which is made absolute after hearing both the parties, then only the Courts usually either the civil Court or the Writ Court, would grant police aid for effective implementation of the said permanent injunction decree or a temporary injunction order which is passed on merits. But when the ex parte ad-interim injunction is granted without hearing the respondents and when the same is not made absolute granting a temporary injunction order, till the disposal of the suit, on merits, the Courts will not usually order for grant of police aid for implementation of the ex parte ad-interim injunction order. Since it is not an order on merits after hearing both the parties, the Courts would be very slow in granting police aid, till the possession and rights of the parties are determined after enquiry based on evidence."
12. Therefore, as per the settled law when a permanent injunction decree was passed in favour of the 1st petitioner, he is entitled for grant of police aid for effective implementation of the said permanent injunction decree.
13. Learned counsel for the unofficial respondents relied on certain judgment in support of his contention. They are not applicable to the present facts of the case. He has relied on the judgment rendered in the case of Jatindra Nath Das v. State2. That was a case where by violating the order of the temporary injunction, the respondents therein made some illegal constructions in the disputed land. Therefore, the petitioner in whose favour the temporary injunction was passed, sought 1 2021(1) ALT 426 2 AIR 2011 CALCUTTA 26 7 police aid for demolition of the said illegal construction made in violation of the temporary injunction order. Therefore, in the said facts and circumstances of the case, the Calcutta High Court held that the remedy is only before the civil Court that passed injunction order and no mandamus can be issued commanding police to provide police aid for demolition of the said structures. The facts of the case are totally distinguishable and the ratio laid in the above judgment is not applicable to the present facts of the case.
14. He then relied on the judgment of the Division Bench of the then High Court of Andhra Pradesh rendered in the case of Rayapati Audemma v. Pothineni Narasimham3. It is held in the said judgment that as there is no express provision in the code for the purpose of granting police aid for implementation of the temporary injunction order and as Order 39 Rule 2(a) of the Civil Procedure Code does not deal with implementation and it deals only with punishment for disobedience, the said temporary injunction order can be implemented under Article 226 of the Constitution of India. The Division Bench has also overruled the earlier judgment of the then Andhra Pradesh High Court rendered in Criminal Revision Petition No.67 of 1959, dated 22.07.1960.
3 AIR 1971 ANDHRA PRADESH 53 8
15. This judgment is more in favour of the 1st petitioner and it is against the proposition that is now canvassed by learned counsel for the unofficial respondents. The ratio laid in the aforesaid judgment of the Division Bench clearly shows that even though a provision is available to punish the respondents for disobedience of the injunction and as there is no provision for grant of police aid in the Civil Procedure Code that this Court can grant police aid for implementation of the said injunction order under Article 226 of the Constitution of India.
16. Therefore, in view of the ratio laid down in the aforesaid judgments, the contention of unofficial respondents herein that as the 1st petitioner got efficacious remedy of initiating execution proceedings in the executing Court for the execution of the said permanent injunction decree that he is not entitled to police aid by way of filing the Writ Petition, cannot be countenanced. The said contention holds no water.
17. The other judgments relied on by learned counsel for the unofficial respondents rendered in the cases of Mst. Hajra v. Abdul Majeed Matoo4, Smt. Maya Sen v. Bhawani Mazumdar5, Shivamurthy Mahalingappa Kuchanaur v.
Dannammadevi Cycle Mart, Rabakavi6, Brahmdeo 4 AIR 1986 JAMMU AND KASHMIR 84 5 1997 (4) ICC 12 = 1997(2) Cal. L.T. 301 6 AIR 1987 KARNATAKA 26 9 Chaudhary v. Rishikesh Prasad Jaiswal7, Thazhapattathillath Krishnan Namboodiri v. Thazhapattathillath Damodaran Namboodiri (Died) by L.R.8, V.S.Alwar Ayyangar v. Gurusamy Thevar9 and
Y. Lakshmaiah v. Esso Eastern Inc10 are not applicable to the present facts of the case.
18. Therefore, in view of the settled law in this regard as discussed supra, the 1st petitioner alone is entitled for police aid for effective implementation of the said permanent injunction decree only against unofficial respondents 7 and 8, who are parties to the said injunction decree. However, as it is stated that Second Appeal is pending before this Court and that unofficial respondents 7 and 8 are seeking stay of execution of the said decree, the police aid can be granted subject to the order of stay that may be granted in the Second Appeal by this Court, if any.
19. Resultantly, the Writ Petition is allowed in respect of the 1st petitioner is concerned, directing the respondent - police officials 1 to 5 to provide police aid to the 1st petitioner only against respondents 7 and 8 for effective implementation of the permanent injunction decree that was passed in O.S.No.264 of 7 AIR 1997 SUPREME COURT 856 8 AIR 2005 KERALA 328 9 AIR 1981 MADRAS 354 10 AIR 1974 ANDHRA PRADESH 32 10 2009 on the file of the learned Additional Senior Civil Judge, Tirupathi, dated 14.03.2012, which in turn was confirmed in the First Appeal in A.S.No.54 of 2012 on the file of the learned V Additional District Judge, Tirupathi, as per the judgment dated 27.06.2019, subject to the order of stay, if any, that may be granted in S.A.No.559 of 2019. If any stay is granted in the Second Appeal, this order ceases to have any effect from the date of grant of the said order of stay. No costs.
Miscellaneous petitions, if any pending, in the Writ Petition, shall stand closed.
______________________________________________ JUSTICE CHEEKATI MANAVENDRANATH ROY Date: 26.09.2022 AKN 11 THE HON'BLE SRI JUSTICE CHEEKATI MANAVENDRANATH ROY WRIT PETITION No. 20555 of 2022 Date: 26-09-2022 AKN