Andhra HC (Pre-Telangana)
K. Seetharama Dass vs Sikile Moses And Others on 6 April, 1999
Equivalent citations: 1999(3)ALD10, 1999(2)ALT567, 2000 A I H C 1842, (1999) 3 ANDHLD 10 (1999) 2 ANDH LT 567, (1999) 2 ANDH LT 567
Author: B. Sudershan Reddy
Bench: B. Sudershan Reddy
ORDER
1. The petitioner under extraordinary circumstances invoked the jurisdiction of this Court under Article 226 of the Constitution of India to grant some what peculiar relief by way of a writ of mandamus or any other appropriate writ to cause arrest of the first respondent herein and his production before the learned sentoz Civil Judge, Narsapur, West Godavan District, in connection with El* No.46 of 1992 in OS No.143 of 1982. The petitioner prays for issuance of appropriate directions to the Superintendent of Police, West Godavari District at Eluru to arrest the first respondent and produce him before the said Court.
2. The petitioner obtained a money decree against the first respondent herein in OS 143 of 1982 on the file of the learned senior Civil Judge, Narsapur (for short 'the said Court') on 5-11-1992. Aggrieved by the said Judgment and decree, the first respondent preferred an appeal - AS No.956 of 1993 in this Court. This Court while admitting the appeal granted stay of the execution of the decree by order dated 19-4-1993, subject to the condition of the first respondent depositing half of the decretal amount and costs. The petitioner herein has been permitted to withdraw the said amount. The fact remains that the first respondent failed lo comply with the conditional order and so far did not deposit the amount. There is no need to go into the details, except to notice the strategies and modes adopted by the first respondent to stall the execution proceedings. The first respondent filed a transfer petition -Tr. CMP No.188 of 1983 alleging that all the judicial officers in the West Godavari District are prejudiced against him and, therefore, the Execution Petition should be transferred to another District. He obtained stay of all further proceedings in the Execution proceedings. The said transfer CMP, was ultimately dismissed by this Court on 21-2-1994. Thereafter, the first respondent filed an application for extension of time for depositing the amount in EP No.46/92 and this petition was ultimately dismissed by a Division Bench of this Court on 13-7-1994. Since the first respondent failed to deposit the amount, the Court below directed his arrest and the first respondent promptly challenged the same in CRP No.2248/94, which was dismissed by this Court on 20-7-1995. The first respondent is stated to have filed a Full Satisfaction Memo without the signature of the petitioner-DHR. and his Counsel, as if a cheque was issued by the fist respondent and the petitioner-DHR had encashed the same. The trial Court refused to accept the Full Satisfaction Memo vide orders in EA No.148/95 on 16-4-1996, against which the first respondent preferred CRP No.3033/96 and the same has been dismissed by this Court on 13-8-1996. The first respondent preferred Special Leave Petition in the Apex Court and got the same dismissed as withdrawn by order dated 22-11-1993.
3. It would be appropriate to recall the observations of this Court, while dismissing the CRP No.3033/96 filed by the first respondent which would briefly indicate the defiance attitude exhibited by the first respondent.
"The case has a chequered history. Learned Counsel for the respondent has filed a chart showing the list of cases filed by the petitioner. According to the list, against the judgment and decree in OS No. 143/82 dated 5-11-1992, the petitioner filed AS No.356/93 in this Court and obtained stay of execution of the decree on condition of depositing half of the decretal amount. Against the said conditional order, he preferred SLP before the Supreme Court which he withdrew. As he did not comply with the conditional order, stay got vacated and the Court below ordered Civil Arrest on 16-9-1993. The petitioner filed Transfer CMP No.l 88 of 1993 seeking transfer of EP, from the West Godavari District alleging that all the Presiding Officers in West Godavari District are prejudiced. He has also obtained stay. The said transfer CMP was dismissed on 24-2-1994. Against the order of arrest, the petitioner filed CRP No.2248/94 which was dismissed by this Court on 20-7-1995. Pending EP, the petitioner filed EA No.148/95, claiming that he paid Rs.2 Lakhs towards full satisfaction of the decree and when the Court below refused to grant stay of execution of the decree till the disposal of EA No.148/95, the petitioner filed CRP No.4192/95 which was also dismissed on 8-2-1996. The Court below, was, however, directed to adjudicate on the question whether the petitioner paid Rs.2 Lakhs towards full satisfaction of the decree.
When the matter was posted before the Court below, the petitioner has not adduced any evidence. Along with the EA, the petitioner has filed a certificate issued by the Manager, Vijaya Bank, Narsapur together with a voucher said to have been signed by the respondent-decree holder regarding the alleged payment of Rs.2,00,000/- by the petitioner. The Court below has dis-believed both the documents and held that there is no proof of payment of Rs. 2 Lakhs. It is purely a question of fact which cannot be interfered silting in revision under Section 115 CPC. In the result the revision petition is dismissed. In view of the conduct of the petitioner in filing repeated frivolous proceedings, I deem it fit to impose exemplary costs of Rs. 1000/- (Rupees one thousand only).
4. It is the specific case of the petitioner that the first respondent is one of the richest person in entire West Godavari District and he has got means and resources at his disposal to satisfy the money decree obtained against him by the petitioner. It is even alleged that the first respondent got transferred his properties in the names of his near and dear in fictitious manner. Be that as it may, the fact remains that there is an order passed by the trial Court directing arrest of the first respondent and the same remained unexecuted, ever since 1994. It is the case of the petitioner that the Watch-and-Ward staff of the first respondent on duty at his bungalow prevents the Bailiff of the Court from entering into the bungalow where the first respondent resides. It is evident from the record that several times the trial Court appointed Advocate-Commissioners to apprehend the first respondent and to produce him before it for the purpose of execution of the decree passed in OS No.143/82. The arrest warrants issued against the first respondent remain unexecuted. Evidently, the first respondent is avoiding arrest. It is under those circumstances, the petitioner invokes the extraordinary jurisdiction of this Court to issue appropriate directions to the Police to cause arrest of the first respondent for the purpose of enforcing the decree granted by the civil Court.
5. In the counter affidavit filed by the Section House Officer, Narasapur Town Police Station, it is inter alia stated that innumerable attempts were made by the police, accompanied by the Advocate-Commissioner and the Court Amin to cause arrest of the first respondent and to produce him before the said Court. It is stated that each time, the first respondent adopts some trick and escapes from Narsapur jurisdiction on coming to know about the order of arrest passed by the Court of the senior Civil Judge. It is further stated that "the first respondent has a palatial building and many times hides, himself, in it and whenever the Commissioner and the Police wanted to search the building, the first respondent simply makes his attenders say that he is not available in the town itself. Each time the Commissioner and the Amin are prevented from entering into the building. The stock answer of the Attenders of the first respondent is that he left for Madras or Bangalore. The Advocate-Commissioner is always in vulnerable position to nab the first respondent, especially on being told that the first respondent is out of the Narsapur town jurisdiction." It is stated that the Station House Officer, himself, accompanied, the Advocate-Commissioner to apprehend the first respondent on 21-7-1998; 23-7-1998; 10-12-1998; 11-12-1998 and 12-12-1998, but they have to return without apprehending the first respondent.
6. In the counter affidavit filed by the first respondent, himself, all the allegations made against him are denied. The averments made in the counter-affidavit do not inspire confidence and utterly lack bona fides. There cannot be any dispute about the result of the various proceedings in the Court below, as well as in this Court. It is admitted that the arrest warrant issued against him was unsuccessfully questioned by him. It is pleaded by the first respondent that a Division Bench of this Court in CMP No. 19151 of 1997 refused to consider the request of the petitioner to direct the Superintendent of Police to assist the Bailiff of the Court in executing the orders of the learned senior Civil Judge, Narsapur in EP No.46 of 1992. Therefore, the petitioner is precluded from asking the same relief in this writ petition. An attempt is made by the first respondent to assail the arrest warrant issued against him by the trial Court even after its confirmation by this Court in a civil revision petition filed by him. It is also the case of the first respondent that the writ petition filed by the petitioner is not maintainable and the petitioner has to proceed with the case in the civil Court only. It is also the case of the first respondent that parallel proceedings-one in the trial Court by way of common law proceedings and the other by way of public law remedy cannot be maintained.
7. Learned Counsel for the petitioner, Mr. S.R. Sanku would strenuously submit that the petitioner-DHR is not in a position to execute the decree against the first respondent, unless this Court issues necessary directions for the arrest of the first respondent to enforce-the arrest warrant issued against him by the trial Court. Learned Counsel, therefore, prays for interference of this Court to protect and defend the judicial process. Learned Counsel submits that the first respondent has brought the whole judicial process to the level of mockery and unless this Court interferes in the matter the majesty of law and the judicial process would be in peril.
8. Sri M.R.K. Choudary, learned senior Counsel appearing on behalf of the first respondent does not dispute the jurisdiction of this Court under Article 226 of the Constitution of India to issue an appropriate writ or direction whenever interest of justice requires to do so. But the learned senior Counsel would submit that the remedies available in civil law are also superior in nature compared to the remedies that may be available before the Tribunals with limited jurisdiction and the civil Courts are capable of enforcing their own orders. This Court cannot entertain a writ petition by way of parallel proceeding. This Court should not exercise its discretion in such matters where adequate remedies are available under the Code of Civil Procedure.
9. Having regard to the importance of the question, 1 have requested Sri V. Venkataramanaiah, the learned Advocate General to assist the Court as Amicus curiae. Learned Advocate General would submit that the jurisdiction of this Court is not fettered in any manner whatsoever, if its interference is required even in civil proceedings pending on the file of a civil Court. This Court can always interfere and exercise its extraordinary jurisdiction to defend and protect the legal process. Availability of an alternative remedy is not a bar for interference of this Court. Learned Advocate General would contend that the jurisdiction of this Court is not effected in any manner whatsoever merely because an alternative remedy is available.
10. I have given my anxious consideration to the submissions made across the Bar.
11. Before dealing with the question that would arise for consideration, it would be appropriate to have a look at the order passed by the learned senior Civil Judge, in EA No.322 of 1998 in EP No,46 of 1992 dated 25-10-1998 filed by the petitioner to appoint an Advocate-Commissioner with power of search warrant and with appropriate directions to the Deputy Superintendent of Police to assist the Advocate-Commissioner and also to break open the lock of the gate and arrest the first respondent-JDR.
12. Learned senior Civil Judge referred to the entire history of the case and the tactics and methods adopted by the first respondent to avoid the execution of the decree. Learned Judge observed that the first respondent herein had flouted the orders of the trial Court, as well as this Court and failed to comply with the order of this Court dated : 19-4-1993 to deposit half of the decretal amount, till this date. It is observed by the learned Judge that the first respondent has misused the provisions of the Code of Civil Procedure by prolonging and dragging the proceedings. The orders passed by the Courts are frustrated. The learned trial Judge was disposing of the application filed by the petitioner pursuant to the directions of this Court in CMP No.19151 of 1997 issued by a Division Bench of this Court to consider the request of the petitioner for issuing necessary directions to the Police to apprehend the first respondent in connection with the execution of the decree. The learned trial Judge observed that Warrant of arrest was issued by the Court of number of occasions. Neither the Bailiff, nor the Advocate-Commissioner could even enter into the premises to know whether the first respondent was available or not. The learned trial Judge expressed his anguish and concern as to the dilatory tactics adopted by the first respondent in obstructing the judicial process. But, even the said order passed by the trial Court directing the Sub-Divisional Police Officer, Narsapur to provide sufficient and adequate police protection and aid the Advocate-Commissioner for due execution of the arrest warrant remained on paper. It is a sad commentary that so far more than thirty times the trial Court issued warrants during the last six years to apprehend the first respondent-JDR and cause his production in the Court to proceed further in the matter.
13. Is it a case where this Court should silently watch this spectacle and refuse to interfere on the ground that there is adequate alternative remedy available to the petitioner?
14. It is true that this Court in exercise of its extraordinary jurisdiction under Article 226 of (he Constitution of India will not ordinarily issue a writ in favour of a person, who has adequate alternative remedy. Alternative remedy can never be said to be an adequate alternative remedy unless it is equally convenient, beneficial and effective. The Rule which requires exhaustion of alternative remedy is a Rule of convenience and discretion rather than a rule of law. In other words, it does not bar thejurisdiction of the Court. See : State of U.P. v. Mohd. Nooh, AIR 1958 SC 86. May be the existence of adequate alternative remedy is always a factor to be taken into account.
15. In B. Govindu Reddy v. Revenue Divisional Officer-cum-LAO, Kurnool, 1997 (5) ALD 748, this Court had an occasion to consider the very same question as to whether this Court would entertain a writ petition to implement and execute any and every order and decree passed by a Court of competent civil jurisdiction and accordingly held that the decree holders have to necessarily resort to execution proceedings and get the decrees executed in accordance with law and the Court would normally insist the decree holders to adopt the alternative efficacious remedy available under the Code of Civil Procedure. It is, however, made clear in the said judgment that existence of alternative and efficacious remedy does not operate as a bar in whatsoever manner and effect the jurisdiction of this Court in the matter of exercising its power under Article 226 of the Constitution of India. The Court can always issue appropriate directions whenever and wherever interest of Justice require issuance of such directions. The fact that the petitioners had already availed the remedy available to them in law by initiating execution proceedings may not effect the jurisdiction of this Court under Article 226 of the Constitution of India to issue necessary directions.
16. In P.V. Surender Kabu v. Prohibition and Excise Superintendent, Chittoor, , this Court held that:
"Further, what could be gathered from the decisions of the Supreme Court in U.P.J.N. v. Nareshwar, ; TPM v. State of Orissa, ; H.B. Gandhi v. Gopi Nath and Sons, 1992 Supp. (2) SCC 312, is that where statutory remedies are available or statutory tribunal has been set up, a petition under Article 226 should not be entertained, unless the statutory remedies are ill suited to meet the demands of any extraordinary situation, for example, where the very vires of the statute is in question; or where private or public wrongs are so inextricably mixed up and prevention of public injury and the vindication of public justice require that recourse may be had to Article 226; or where the alternative remedy is not effective or adequate; or where the alternative remedy is onerous or burdensome or inadequate; or where it involves inordinate delay or is illusory in nature; where the impugned action is palpably wrong or goes to the root of the jurisdiction or where there is total lack of jurisdiction in the authority."
17. However, learned senior Counsel appearing for the first respondent would place reliance upon a decision of this Court in S.H. Javeri v. Government of A.P., 1996 (4) ALD 868. In my considered opinion, the said decision does not lay down any law limiting the extraordinary jurisdiction of this Court under Article 226 of the Constitution of India in whatsoever manner. Of course, in the facts and circumstances of that case, this Court observed that the Code of Civil Procedure is a comprehensive piece of legislation regulating the proceedings in the civil Court and it takes care of every conceivable situation. The Court refused to grant relief in the said case on the ground that the proceedings in the (rial Court revealed that necessary directions were being issued by civil Court from time to time in exercise of its inherent jurisdiction to meet the ends of Justice. In the same Judgment, it is observed that "this Court is empowered to issue writs in the nature of Mandamus, Certiorari, quo-warranto, Habeas Corpus in appropriate cases to meet the ends of Justice."
18. In U.P. State Co-op. Land Development Bank Ltd. Chandra Bhan Dubey, , the Apex Court observed that the Constitution is not a statute. It is the fountain head of all the statutes. When the language of Article 226 is clear, one cannot put shackles on the High Courts to limit their jurisdiction by putting an interpretation on the words which would limit their jurisdiction. When a citizen or person is wronged, the High Court will steps in to protect them, be that wrong be done by the State, an instrumentality of the State, a company or a Co-operative Society.....
19. Of course, in the very same Judgment, it is observed that the power conferred upon the High Court under Article 226 of the Constitution is so vast, the jurisdiction would be exercised in accordance with certain guidelines and jslf-imposed restrictions. It is further held that these guidelines cannot be mandatory in all circumstances. It is observed that the party may not be allowed to by-pass the normal channel of civil and criminal litigation.
20. The Apex Court in Whirlpool Corporation v. Registrar of Trade Marks, Mumbai, , after referring to the well known decisions on the subject relating to the jurisdiction of the High Court in entertaining the writ petitions under Article 226 of the Constitution of India, in spite of alternative remedies, observed that "the jurisdiction of the High Court in entertaining a writ petition under Article 226 of the Constitution of India, in spite of alternative statutory remedies, is not effected....."
21. In A. Venkateswaran, Collector of Customs, Bombay v. Ramchand Sobharaj Wadhwani, , the Apex Court dealing with the question of the general principles as to when the alternative remedy could be said to be effective and adequate one observed that "their application to the facts of each particular case must necessarily be dependent on a variety of individual facts which must govern the proper exercise of the discretion of the Court, and that in a matter which is thus pre-eminently one of the discretion, it is not possible or even if it were, it would not be desirable to lay down inflexible rules which should be applied with rigidity in every case which crimes up before the Court."
22. The law on the subject is well settled. The matter would be one of discretion. The question to be asked being whether the remedy provided was adequate remedy. The jurisdiction of this Court to issue appropriate writs whenever interest of Justice requires is not limited in any manner whatsoever, except by the Constitutional scheme itself and the seif-imposed limitations in exercise of the jurisdiction.
23. A Division Bench of this Court in Satyanarayana Tiwari v. SHO, PS., Santoshnagar, , while dealing with the question as to whether the High Court can issue a writ or direction to the concerned authorities to enforce the orders of a civil Court observed :
"Section 151 CI'C reserves the inherent power of the Court. Article 226 of the Constitution goes a step further and vests extraordinary jurisdiction in the High Court of a State to issue not only a writ of mandamus but also appropriate writs, directions or orders for the enforcement of any of the right conferred by Part III and for any other purpose. As held by the Supreme Court in Calcutta Gas Company (Prop) Ltd. v. State of W.B., , 'any other purpose' means 'the enforcement of any legal right and the performance of any legal duly'. A legal right, of course, means any legally enforceable right. Nothing more can be a higher purpose than the enforcement of the orders of the Civil Court and thai of the High Court which confirms or recognises the rights of a party. By any interpretation of the provisions of CPC 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.
24. The petitioner herein made all-possible efforts to get the decree obtained by him executed against the first respondent. The trial Court after exhausting the alternative modes available for execution of the decree, finally thought it fit to order arrest of the first respondent. Innumerable warrants were issued for arrest and cause production of me first respondent in the Court to give finality to the execution proceedings. All such attempts proved futile. The first respondent challenged more or less every order passed by the trial Court in the process of execution of the decree. The attempts made by the first respondent to temporarily move or shift from the territorial jurisdiction of the trial Court to avoid execution of the warrant, as observed by the trial Court, highlights the conduct of the first respondent. We are concerned with the dignity and majesty of law. No judicial system can survive unless it commands confidence and respect of the people. The first respondent brings the whole judicial process to a farcical level by successfully avoiding execution of the warrant of arrest issued against him for a period of more than four and half years. It is nothing but subversion of judicial process. In such a situation this Court can never remain to be a silent spectator.
25. What confidence the subordinate Courts command, if the decrees passed by them arc put in a cold storage by the mighty, powerful or unscrupulous litigants?
26. It is the duty of this Court to protect the judicial process and legitimacy of the subordinate Courts. Otherwise there will be niter chaos and confusion. It is the bounden duty of this Court to uphold and enforce the Rule of law. The High Court exercises control over the subordinate judiciary and superintendence over all the Courts throughout the territories in relation to which it exercises jurisdiction. Tlie power of superintendence over the Courts is coupled with the duly to protect the legitimacy of the judicial process at the grassroot level. The subordinate judiciary is not only under the control of the High Court; but also is under the care and custody of the High Court. The High Court has not only the power to enforce the discipline in the subordinate judiciary, but also to protect the dignity and honour of the subordinate judiciary. This Court has the necessary power to issue appropriate directions to protect the integrity of judicial process and even to enforce an order passed by the subordinate Courts, if the ordinary mechanism fails to provide the relief and meet the challenge.
27. The decree obtained by the petitioner perhaps would remain unexecuted for ever, as is evident from the record. It is under (hose circumstances, the petitioner knocks the door of this Court seeking justice. It is not as if the petitioner failed to avail the remedies provided under the Code of Civil Procedure. The inadequacy of the remedies availed by the petitioner is obvious. It is a clear case where the petitioner is left with no other effective and adequate remedy. In fact, the petitioner invoked the jurisdiction of this Court only after exhausting all the remedies. It is evidently a fit case requiring interference by this Court and interest of justice do require interference. This is one of those rarest of rare cases requiring interference of this Court to protect the dignity, majesty and purity of the judicial process.
28. Learned senior Counsel, Sri M.R.K. Choudary, however, refers to the decisions of the Apex Court in the State of Orissa v. Madati Gopal Rungla, 1952 SCR 28, and U.T. of Chandigarh v. D.S. Grewal, 1993 (3) SCALE 218, in support of the submission that the High Court should exercise due care and caution in passing interim orders and the interim orders which are mandatory in nature normally should not be passed by the High Court, except in rare cases. There is no dispute with the proposition. But in the instant case, we are no more concerned with the nature of interim order passed by this Court at the initial stage.
29. For all the aforesaid reasons, the Superintendent of Police, West Godavari District at Eluru and the sub-divisional Police Officer, Narsapur, West Godavari District arc directed to take all effective measures and cause arrest of the first respondent and produce him before the Court of the senior Civil Judge, Narsapur, in connection with EP No.46 of 1992 in OS No.143 of 1982 on his file, so as to enable the said Court to proceed against the first respondent in accordance, with law. Let a writ of mandamus be issued commanding respondent Nos.2 to 4 to carry out the aforesaid direction.
30. Before parting with the case, I acknowledge the valuable assistance provided by Sri K Venkataramanaiah, learned Advocate General, readily at the request of the Court.
31. Accordingly the writ petition is allowed with costs quantified at Rs. 1,500.00 (Rs. One Thousand and five hundred only), payable by the first respondent.