Calcutta High Court (Appellete Side)
Abdul Alim Mia vs The State Of West Bengal & Ors on 7 June, 2016
Author: Dipankar Datta
Bench: Dipankar Datta
1
07.06.2016
Item No.06
SB
W.P. 9187 (W) of 2016
Abdul Alim Mia, @ Abdul Alim
Vs.
The State of West Bengal & Ors.
Mr. Prosenjit Mukherjee..........for the petitioner.
Mr. Subhabrata Dutta,
Mr. Benazir Ahmed............for the State.
Mr. Rajendra Banerjee.......for the respondents 5 to 9.
A civil suit instituted by the private respondents against the petitioner failed. In appeal, the decree of dismissal passed by the civil court was reversed and the appeal allowed. A second appeal was preferred by the petitioner before this Court, which was admitted by an order dated 21.01.2011 of an Hon'ble Division Bench. The parties were directed to maintain status quo as of that date, in relation to the suit property during the pendency of the application for stay. The application for stay was disposed of by a coordinate Bench on 11.04.2011 extending the interim order of status quo till the disposal of the appeal or until further orders, whichever is earlier. It is not in dispute that the second appeal is pending.
In this writ petition, the petitioner voices a grievance that the respondent no.5, who is not a party to the civil proceeding, is seeking to evict him and despite approaching the police asking for protection, such attempt has proved abortive.
Mr. Mukherjee, learned advocate appearing for the petitioner relying on paragraph 19 of the decision of the Supreme Court reported in (2006) 2 4 SCC 501 (P.R. Murlidharan Vs. Swami Dharmendra Theertha Padar) contends that the writ petition is maintainable, since at the interlocutory stage of the appellate proceeding the petitioner's right in respect of the property has been declared.
Mr. Mukherjee has also relied on an unreported decision of another Hon'ble Division Bench to this Court dated 02.09.2014 passed in MAT 1436 of 2014 [Kartick Rishi (Mondal) Vs. Provat Kumar Chattoraj & Ors.].
I am afraid, I have not been able to persuade myself to agree with the submission of Mr. Mukherjee.
In paragraph19 of the decision in P.R. Murlidharan (supra), law has been laid down as follows:
"19. A writ for 'police protection' so-called, has only a limited scope, as, when the court is approached for protection of rights declared by a decree or by an order passed by a civil court. It cannot be extended to cases where rights have not been determined either finally by the civil court or, at least at an interlocutory stage in an unambiguous manner, and then too in furtherance of the decree or order."
It would appear from the factual narrative that the suit having failed, the right claimed by the plaintiffs was not declared in their favour. However, they succeeded in the appeal whereupon the second appellate court was approached which directed status quo to be maintained without, however, indicating the status of the property that is to be preserved till the disposal of the second appeal. The rights of the parties to the civil proceeding, it is evident, have not been declared in an unambiguous manner even at the interlocutory stage. The reversal of the decree of the trial court by the first appellate 3 court and direction of the second appellate court to maintain status quo without declaring who is in possession of the suit property bear testimony to an unclear position that is presently prevailing. Having perused the decision in Kartick Rishi (Mondal) (supra), I have failed to comprehend its materiality to the facts and circumstances of the present case. The Hon'ble Division Bench held that the decision in P.R. Murlidharan (supra) could not have lent support to the contention that the writ petition is maintainable and, accordingly, proceeded to allow the appeal and dismissed the writ petition.
On the authority of P.R. Murlidharan (supra), the petitioner cannot maintain this writ petition.
That apart, assuming that any party is seeking to evict the petitioner from claimed possession of the suit property, the petitioner is not without a remedy. He ought to approach the second appellate court with an application for contempt and seek appropriate orders for protection of such claimed possession of the suit property.
The submission of Mr. Mukherjee that the respondent no.5 is not a party to the civil proceeding and, therefore, a contempt may not lie, is misconceived in view of the decision of this Court reported in 1973 CLJ 189 (Gopal Biswas Vs. State of West Bengal & Ors.). This writ petition is not entertained and, accordingly, stands dismissed, without costs.
However, this order shall not preclude the petitioner to pursue his remedy in accordance with law.
4Urgent photostat certified copy of this order, if applied for, be furnished to the parties as early as possible.
(DIPANKAR DATTA, J.)