Calcutta High Court (Appellete Side)
Om Prakash Baheti vs Sri Narayan Paul on 5 April, 2012
Author: Soumen Sen
Bench: Soumen Sen
1 IN THE HIGH COURT AT CALCUTTA Civil Revisional Jurisdiction APPELLATE SIDE Present :
The Hon'ble Justice Soumen Sen C.O. No.883 of 2012 Om Prakash Baheti Vs. Sri Narayan Paul For the Petitioner : Mr. Pratyush Patwari For the Opposite Parties : Mr.Debasish Roy Mr. Vinay Kumar Purohit Heard on : 03.04.2012 Judgment on : 5th April, 2012 Soumen Sen, J. :- The instant revisional application is arising out of an order dated 3rd February, 2012 passed by the learned City Civil Court at Calcutta, 10th Bench, in Title Suit No.17 of 2011.
The petitioner filed an application under Section 151 of the Code of Civil Procedure for police help.2
The learned Court by the impugned order considered two applications, one filed by the plaintiff under Section 151 of the Code of Civil Procedure for police help and another application filed under Order 39 Rule 1 and 2 read with Section 151 of the Code of Civil Procedure, for removal of rolling shutter of the plaintiff's shop room to the original position as it was prior to 16th December, 2010 on the ground that the plaintiff removed the previous rolling shutter and re-installed the same with a new one which was outside the original position of the plaintiff's shop room.
The application filed by the defendant was dismissed. In considering the application under Section 151 of the Code of Civil Procedure filed by the plaintiff, the Trial Court recorded that there was a proceeding initiated by the plaintiff before the Calcutta High Court in writ jurisdiction in which an order was passed directing the Commissioner of Police to examine as to whether the petitioner would be entitled to posting of police guards at his expense at the suit premises.
The application under Section 151 of the Code of Civil Procedure was not considered on merits in view of such observation made by the Hon'ble Justice Jayanta Kumar Biswas in W.P.no.757 of 2011 in His Lordship's order dated 9th August, 2011.
The learned Counsel appearing on behalf of the petitioner submits that the said order dated 9th August, 2011 does not preclude the Court from considering 3 the application filed under Section 151 of the Code of Civil Procedure for issuing a direction upon the Commissioner of Police and/or any of his subordinate officers to render police help to the petitioner and to get a strict vigil so that the defendant or his agents could not cause any obstruction in the repairing work of the suit property. The scope of the writ petition and the application under Section 151 which was considered by the learned Trial Judge are completely different and it is settled law that under Section 151, the Court can pass an order for police help to ensure that the order passed by the Court is not being flouted and to prevent any attempt being made by a party to make the said order infructuous. The reason for disposing of the said application under Section 151 is on total misreading of the order passed by the Writ Court on 9th August, 2011.
On an application filed by the petitioner for repairing of the said shop room, an order was passed on 4th February, 2011, recording that a settlement has been reached between the parties to the suit in respect of their respective tenanted portion in presence of Officer-in-Charge, Amherst Street including the local Police Station and certain terms have been agreed upon and acted upon by the parties. The said order refers to the settlement on behalf of the defendant that there would be no objection if the said shop is repaired as per the terms of the settlement dated 20th December, 2010.
The plaintiff complaints that in willful and utter disregard to the order dated 4th February, 2011, the defendant prevented the plaintiff from carrying out 4 such repairs in terms of settlement dated 20th December, 2010. The Police Authorities were approached but the necessary assistance was not extended to the petitioner. The petitioner appears to have initiated a contempt proceeding. It appears that during the pendency of the contempt proceeding on an application filed by the plaintiff under Order 39 Rule 1 and 2 read with Section 151 of the Code of Civil Procedure, an order was passed on 4th July, 2011 restraining the opposite parties from obstructing the plaintiff from carrying out lawful repairing work in respect of the suit property. The plaintiff contends that even after the said order the defendant obstructed the plaintiff from carrying out the said repairing work.
The petitioner states that that the said shop is a jewellery shop and the repairing work includes installation of proper shed, signboard, colouring, painting, lighting, flooring etc., and there is a hole in between the shed and shutter of the said shop room which could result in theft and robbery. The petitioner relied upon certain photographs in support of the said claim.
The learned Judge seems to have overlooked such matters and disposed of the said application solely on the basis of the order passed on 9th August, 2011. The learned Judge has taken into consideration that the defendant did not raise any objection in carrying out such repairing work by the plaintiff inside the shop room. It appears that the plaintiff has also admitted that he has already affixed signboard in support of his shop room. The Deputy Commissioner was 5 appointed to oversee the execution of the order in terms of settlement dated 20th December, 2010.
The power of the Court to grant police help in an application filed under Section 151 of the Code of Civil procedure is well-settled. It is well-settled that in an application filed under Section 151 of the Code of Civil Procedure for police help, the Court must see that if the defendants by their acts and conduct are attempting to nullify or frustrate the order passed in the proceeding in favour of the plaintiff and the statements made in the petition raised a reasonable confidence in the mind of the Court that the defendants are acting in a mala fide manner, the order of police help should be passed since failure to pass any such order would render the order of injunction infructuous.
In Paresh Chandra Das Vs. Bikash Kumar Das reported in 2010 (2) CLJ 110, the learned Single Judge of this Hon'ble Court allowed the prayer for police help with a view to protect the order passed by the Court. The relevant observations are reproduced hereinbelow:-
"The interim order of injunction which was passed by the learned trial Judge in the said suit has already been mentioned above. The said order sufficiently indicates that both the parties were directed to maintain status quo with regard to the nature and character of the suit property.
Here is the case, where the plaintiff has made an allegation against the defendants as they were trying to raise construction in the suit property.6
If the defendants are allowed to raise construction in the suit property then certainly the nature and character of the suit property will be changed.
In my view, neither party can be allowed to change the nature and character of the suit property either by raising any construction or by demolishing any part thereof so long as the interim order of injunction is in operation.
Since admittedly the interim order of injunction is still in operation the learned trial Judge ought to have allowed the plaintiff's prayer for grant of police help for implementation of order of injunction.
Accordingly, the plaintiff's prayer for grant of police help for implementation of order of injunction stands allowed."
For the purpose of implementation of an order passed under Order 39 Rule 1 and 2 read with Section 151 of the Code of Civil Procedure can always pass order for police protection.
The power of the Court under order for police protection in exercise under Section 151 of the Code of Civil Procedure for implementation of order of injunction is well-settled. This High Court under Section 151 of the Code of Civil Procedure for police protection relied upon a judgment reported in AIR 1983 Cal.266 (Sunil Kumar Halder & Ors. Vs. Nishikanta Bhandari & Ors.). Considering this aspect in Paragraph-2 of the said decision, relevant portion whereof is reproduced hereinbelow:-
7
"Mr. Chakraborty submits that the learned Munsif rejected the application without any reason whatsoever when the plaintiffs came out with a case that the order of injunction obtained by them would be infructuous. In view of the fact that the defendants were threatening to disturb their possession and when in such circumstances an application was made for police help the learned Munsif ought to have allowed the application. It is true that for violation of the order of injunction the petitioners can take steps, but that would be only for the purpose of punishing the defendants. The adoption of that procedure would not help the petitioners in cultivating the lands and to reap the benefits obtained by them by getting the order of injunction. In support of this contention, Mr. Chakraborty refers to a decision reported in (1981) 85 Cal. WN 958 (Saudamini Roychowdhury v. Sateyendra Nath Sarkar). In this case, the petitioner got an order for temporary injunction in his favour. The opposite party went on with the construction work causing interference with the petitioner's possession. An application under Section 151 of the Code of Civil Procedure was filed by the plaintiff wherein it was prayed that police be directed to see that the order of injunction passed by the Court was not violated. Upon the Court rejecting the application, the petitioner came up to this Court. It was held in the facts and circumstances of the case that "the Court had failed to exercise the jurisdiction vested in it by law and the impugned order could not be allowed to stand". The Court below was directed to pass appropriate directions upon the police as prayed for. In deciding the case, His Lordship relied on a Bench decision reported in AIR 1971 Andh. Pra. 53 (Rayapati Andemma v. Pothineni Narasimham)."
The learned Court below appears to have misdirected his mind and failed to exercise the jurisdiction vested in it by law and, accordingly, the impugned order in so far as it disposed of the application under Section 151 of the Code of 8 Civil Procedure is concerned, is set aside. The learned 10th Bench, City Civil Court at Calcutta is directed to hear out the said application for police help afresh within a period of one month from the date of communication of this order and decide the said application on merits being uninfluenced by any observation made in this application. The learned single Judge should take into consideration the law as laid down by this Court in this regard and apply the said principle in determining the said application on merits. The order impugned is set aside. The revisional application succeeds, however, they shall be no order as to costs.
Urgent xerox certified copy of this order, if applied for, be given to the parties on usual undertaking.
(Soumen Sen,J.)