Himachal Pradesh High Court
Lachhman Dass vs Babu Ram & Others on 8 July, 2015
Author: Rajiv Sharma
Bench: Rajiv Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
CMPMO No. 103 of 2015
Date of Decision: 08.07.2015
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Lachhman Dass
...Petitioner
Versus
Babu Ram & others
...Respondents
___________________________________________________________
Coram
Hon'ble Mr. Justice Rajiv Sharma, Judge.
Whether approved for reporting? Yes.
_________________________________________________________
For the petitioner : Mr. Ajay Sharma, Advocate.
For the respondent : Mr. Jitender P. Ranote, Advocate
vice Mr. B.S. Thakur, Advocate,
for respondents No. 1 to 3.
Rajiv Sharma, Judge (oral):
The judgment and decree dated 12.1.2012 was rendered in Civil Suit No. 72 of 2004. However, the fact of the matter is that despite the judgment and decree dated 12.1.2012, respondents though restrained, but did not stop raising construction, which led to the appointment of the Local Commissioners thrice. All the Local Commissioners have pointed out that the construction was still being raised by the respondents despite the judgment and decree dated 12.1.2012.
In these circumstances, the petitioner approached the trial Court for seeking police assistance. The application was rejected ::: Downloaded on - 15/04/2017 18:32:17 :::HCHP 2 vide order dated 21.3.2015.
2. The Court is of the considered view that in view of the peculiar facts and circumstances, more particularly when the .
respondents were raising construction despite the judgment and decree dated 12.1.2012, the police assistance ought to have been provided. There may not be any specific provision to provide police assistance, but the Court in order to maintain Rule of law, could provide the police assistance to the parties towards execution of the judgment and decree or any order exercising its inherent power.
3. All Courts, whether civil or criminal possess, in the absence of any express provision, as inherent in their Constitution, all such powers as are necessary to do the right and to undo a wrong in course of administration of justice on the principle quando lex aliquid alique, concedit, conceditur et id sine quo res ipsa esse non potest (when the law gives a person anything, it gives him that also without which the thing itself cannot exist).
4. The learned Single Judge in AIR 1956 Patna 455 titled as The State of Bihar Vs. Usha Devi and another has held that if a Court comes to the conclusion that an order passed under Order 39 Rules 1 or 2 has been disobeyed and by a contravention of that order the other party in the suit has done something for its own advantage to the prejudice of the other 2 ::: Downloaded on - 15/04/2017 18:32:17 :::HCHP 3 party, it is open to the Court under inherent jurisdiction to bring back the party to a position where it originally stood as if the order passed by the Court has not been contravened. The .
learned Single Judge has held as under:
"3. Mr. Shahi, appearing for the State of Bihar, has contended that the order is without jurisdiction.
According to his contention, the State of Bihar had already taken possession of the land in dispute long before the institution of the suit on 6-3-1954, and, therefore, the overt act, if any, which had been committed by the State of Bihar had not been committed after the passing of the interim injunction. In that view of the matter, the learned Munsif, it has been argued, was not justified to pass the order to re-deliver possession. Whatever may be the allegations or counter- allegations of the parties in respect to the present position of the parties relating to the land, this much, however, is obviously clear that the State of Bihar had not come in possession of that land till 26-10-1953, when a notice was issued by the Revenue Sub-
divisional Officer, Giridih, calling upon the Raja of Jharia to give possession of the Bhandar to the State of Bihar. The dispute, therefore, if any, as to possession of the land, between the parties must have begun sometime thereafter. And in the course of that, it is not denied that the contractor of the State of Bihar had either forcibly or in some other way succeeded in dismantling some portion of the eastern room of that Bhandar. It was at this stage that the suit giving rise to this application was instituted on 6-3-1954, and also an 3 ::: Downloaded on - 15/04/2017 18:32:17 :::HCHP 4 order of interim injunction was passed against the State of Bihar restraining them from dismantling it any further and from dispossessing the plaintiff from that Bhandar. It, therefore, cannot be said with certainty that at the .
time when the order for injunction was passed, the State of Bihar had in fact completely taken possession of the land in dispute, though they might have succeeded in dismantling some portion of it here and there. This is to some extent clear also from the concession made by the Govt. Pleader in the court below in the course of the hearing of the application for interim injunction. The learned Munsif in his order has stated:"the learned pleader for the defendants submitted that the defendants have made alterations during the pendency of the suit but if the defendants have done so they have done so at their own risk knowing full well that the plaintiff had already prayed for an order of injunction and the matter was subjudice".
This statement of fact by the learned Munsif shows that the entire position of the parties in respect of the land in dispute at that point of time was in a fluid condition. On one side the State of Bihar was trying to dismantle the whole thing and on the other the plaintiff was trying to save the property from their possession as far as possible. That being so, it cannot be said that the State of Bihar had in fact come into complete possession of the property at about point of time. Subsequent thereto, it is not denied that the State of Bihar, had been restrained from further demolishing that house and thereby interfering with the possession of the plaintiff. The order of interim injunction as to possession passed 4 ::: Downloaded on - 15/04/2017 18:32:17 :::HCHP 5 by the learned Munsif has been finally confirmed by the Court of appeal, and on the face of that order it is not open now to the State of Bihar either to demolish the Bhandar any further or to interfere with the possession .
of the plaintiff in any other form or manner. The allegation of the plaintiff at the time when the order under revision was passed was that her possession over the Bhandar was interfered with subsequent to the passing of the interim injunction against the State of Bihar. That contention, as it appears from the order of the learned Munsif, was accepted and on the footing of that finding the learned Munsif passed an order on 5-5- 1955, for redelivery of the possession of the property to her. I am informed that a separate proceeding for disobeying the interim order is also pending against the State of Bihar. It is, therefore, not advisable to give findings on facts which are connected with that proceeding for that may prejudice the position of the parties in that proceeding. Prima facie, it appears to me that the order passed by the learned Munsif on the facts of this case cannot be said to be one without jurisdiction. If a court comes to the conclusion that an order passed under Order 39 Rule 1 or 2 have been disobeyed and by a contravention of (supra) order the other party in the suit has done (supra) ing for its own advantage to the prejudice (supra) other party, it is open to the Court under inherent jurisdiction to bring back the party to a position where it originally stood as if the order passed by the court has not been contravened. The exercise of this inherent power vested in the court is based on the principle that no party can be allowed to 5 ::: Downloaded on - 15/04/2017 18:32:17 :::HCHP 6 take advantage of his own wrong in spite of the order to the contrary passed by the Court."
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5. Their Lordships of the Hon'ble Supreme Court in AIR 1966 Supreme Court 1899 titled as M/s. Ram Chand and Sons Sugar Mills Private Ltd., Barabanki (U.P.) Vs. Kanhayalal Bhargava and others have held that whatever limitations are imposed by construction on the provisions of S. 151 of the Code, they do not control the undoubted power of the Court conferred under Section 151 of the Code to make a suitable order to prevent the abuse of the process of the Court. Their Lordships have held as under:
"5. ] Section 151 of the Code reads:
"Nothing in this Code shall be deemed to limit or otherwise affect the inherent power of the Court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the Court."
The words of the section appear to be rather wide.
But the decisions of this Court, by construction, limited the scope of the said section. In Padam Sen v. State of Uttar Pradesh (1961) 1 SCR 884 at p. 887: (AIR 1961 SC 218 at p. 219), the question raised was whether a Munsif had inherent powers under S. 151 of the Code to appoint a commissioner to seize account books. This Court held that he had no such power. Raghubar Dayal, J., speaking for the Court, observed:
"The inherent powers of the Court are in addition to the powers specifically conferred on the Court by the 6 ::: Downloaded on - 15/04/2017 18:32:17 :::HCHP 7 Code. They are complementary to those powers and, therefore, it must be held that the Court is free to exercise them for the purposes mentioned in S. 151 of the Code when the exercise of these powers is not in .
any way in conflict with what has been expressly provided in the Code or against the intentions of the Legislature. It is also well recognised that the inherent power is not to be exercised in a manner which will be contrary to or different from the procedure expressly provided in the Code."
This Court again in Manohar Lal Chopra v. Raja Seth Hiralal (1962) Supp 1 SCR 450 at p. 461: (AIR 1962 SC 527 at p. 533), considered the question whether a Court had inherent power under S. 151 of the Code to issue a temporary injunction restraining a party from proceeding with a suit in another State. In that context, Raghubar Dayal, J., after quoting the passage cited above from his earlier judgment, interpreted the said observations thus:
"These observations clearly mean that the inherent powers are not in any way controlled by the provisions of the Code as has been specifically stated in S. 151 itself. But those powers are not to be exercised when their exercise may be in conflict with what had been expressly provided in the Code or against the intentions of the Legislature. This restriction, for practical purposes, on the exercise of these powers is not because these powers are controlled by the provisions of the Code but because it should be presumed that the procedure specifically provided by the Legislature for orders in certain circumstances is 7 ::: Downloaded on - 15/04/2017 18:32:17 :::HCHP 8 dictated by the interests of justice.
This Court again in Arjun Singh v. Mohindra Kumar, 1964-5 SCR 946 at p. 968: (AIR 1964 SC 993 at p. 1003), considered the scope of S. 151 of the Code.
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One of the questions raised was whether an order made by a Court under a situation to which O. IX, R. 7 of the Code did not apply, could be treated as one made under S. 151 of the Code. Rajagopala Ayyangar, J., made the following observations:
"It is common ground that the inherent power of the Court cannot override the express provisions of the law. In other words, if there are specific provisions of the Code dealing with a particular topic and they expressly or by necessary implication exhaust the scope of the powers of the Court or the jurisdiction that may be exercised in relation to a matter the inherent power of the Court cannot be invoked in order to cut across the powers conferred by the Code. The prohibition contained in the Code need not be express but may be implied or be implicit from the very nature of the provisions that it makes for covering the contingencies to which relates."
Having regard to the said decisions, the scope of the inherent power of a Court under S. 151 of the Code may be defined thus: The inherent power of a Court is in addition to and complementary to the powers expressly conferred under the Code. But that power will not be exercised if its exercise is inconsistent with, or comes into conflict with, any of the powers expressly or by necessary implication conferred by the other provisions of the Code. If there are express provisions exhaustively covering a particular topic, they give rise to a necessary 8 ::: Downloaded on - 15/04/2017 18:32:17 :::HCHP 9 implication that no power shall be exercised in respect of the said topic otherwise than in the manner prescribed by the said provisions. Whatever limitation are imposed by construction on the provisions of S. 151 of the Code, .
they do not control the undoubted power of the Court conferred under Section 151 of the Code to make a suitable order to prevent the abuse of the process of the Court."
6. In AIR 1971 Andhra Pradesh 53 titled as Rayapati Audemma Vs. Pothineni Narasimham, the Division Bench has held that though there being no express provision in the Code for the purpose, Court can grant police aid under its inherent powers. The Division Bench has held as under:
"6. In the Allahabad case also, the learned Judges merely observed that the civil court had no jurisdiction to order the police to interfere in the matter of execution of a decree. The inherent powers execrable by the civil court under Section 151, Civil P. C. were not referred to. Their Lordships also proceeded on the footing that because the disobedience of the order of the court was punishable with penalties mentioned in Order XXI, Rule 32, Civil P. C. the Court could not give any direction to the police with respect to the execution of the decree. The provision for penalty is entirely different from the enforcement of the order itself as we have mentioned earlier. Such a provision would not and cannot preclude the court from exercising its inherent power under Section 151, Civil P. C. in order to do justice or to prevent abuse of the process of court. But 9 ::: Downloaded on - 15/04/2017 18:32:17 :::HCHP 10 the actual decision given therein with respect to the direction given to the Superintendent of Police may be correct inasmuch as the form in which the direction was given to the police authorities, does not appear to be .
proper or correct.
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.
7. In 1981 Sim. L.C. 156 titled as Jaishi Ram and others Vs. Salig Ram, the learned Single Judge has held that if the circumstances of a case are such that assistance of police for the enforcement of an order is necessary, an order to this effect can be passed. The learned Single Judge has held as under:
"3. I have perused the order passed by the Sub-Judge. He has based his judgment on a decision in Ravapati Audemma V. Pothineni Narasimham, AIR 1971 10 ::: Downloaded on - 15/04/2017 18:32:17 :::HCHP 11 A.P. 53. This is a Division Bench judgment of that High Court. In the said judgment the point involved was the same as in the presence case. The learned Judges have discussed the case-law on the point. They have not .
agreed with certain prior decisions. The relevant observations may be reproduced:
"The observations in the aforesaid decision no doubt support the contention of the learned counsel for the petitioner. The learned Judge Bhima Sankaram, J., referred to Section 151, C.P.C. but took the view that because an order of injunction is capable of enforcement by punishing its disobedience in the manner provided by Order 39 Rule 2(3), C.P.C., it is not open to the Civil Courts to enforce the same with the aid of the police.
With great respect we are unable to agree with this reasoning. It has to be noticed that Order 30, Rule 2(3), CPC., provides only for punishment by attachment of the property or by detention in civil prison of the person who committed breach. But it does not further provide for implementation of the order of injunction itself. Order 39, Rule 2(3) cannot be said to be an express provision with respect to implementation of the order of injunction, but is only a provision which provides penalty for disobedience of the order. In such a case there being no other express provisions in the Code for enforcement of the order, it is not only proper but also necessary that the courts should render all aid to the aggrieved party to derive full benefits of the order. Though the order of injunction under Order 39, C.P.C. is only interim in nature, still it clothes the person who obtained the order with certain rights and he is entitled to enforce the 11 ::: Downloaded on - 15/04/2017 18:32:17 :::HCHP 12 aforesaid right against the party who is bound by the order. No doubt in such a case, the aggrieved party himself could approach the police authorities to prevent obstruction to the enforcement of the order or to the .
exercise of the right which he derives under the order or to the exercise of such right which he derives under the order of Court. But we do not see why when the same person brings to the notice of the Court that enforcement of the order is sought to be prevented or obstructed, the Court should not exercise its inherent power under Section 151, C.P.C. and direct the police authorities to render all aid to the aggrieved party in the implementation of the Court's order.
r In our opinion the exercise of such power is necessary for the ends of justice or to prevent abuse of the process and the civil court has ample jurisdiction to pass such order under Section 151, C.P.C. The learned Judge's observation "that the police are not bound to obey and directions of the court in the absence of any statutory obligation to do so and a civil court would be stultifying itself by giving directions which may not be complied with", with great respect, cannot be said to be correct. Inasmuch as we are of the opinion that such a direction to be police authorities could be given under the inherent powers of the Court under Section 151, C.P.C. the police are bound to obey such directions."
The learned Judges have also referred to some decisions on the point, including the observations in Padam Sen Vs. State of U.P. (AIR 1961 SC 218). It is desirable to reproduce the same:
"The following observations in AIR 1961 e 12 ::: Downloaded on - 15/04/2017 18:32:17 :::HCHP 13 also apposite in this context:
"The inherent powers of the Court are in addition to the powers specifically conferred on the Court by the Code. They are complementary to those powers and therefore it must be held that .
the Court is free to exercise them for the purpose mentioned in Sec. 151 of the Code when the exercise of those powers is not in any way in conflict with what has been expressly provided in the Code or against the intentions of the Legislature.' In view of these clear observations of their Lordships with regard to the scope and ambit of the inherent powers of the Court under Section 151, C.P.C., we are clearly of the opinion that in order to do justice between the parties or to prevent the abuse of process of the Court, the Civil courts have ample jurisdiction to give directions to the police authorities to render aid to the aggrieved parties with regard to the implementation of the orders of Court or the exercise of the rights created under orders of Court. That the police authorities owe a legal duty to the public to enforce the law is clear from a decision of the Court of Appeal, reported in R.V. Metropolitan Police Commr., (1968) 1 All DR 763, where Lord Denning, M.R. observed at page 769 as follows:
"I hold it to be the duty of the Commissioner of Police, as it is of every chief constable to enforce the law of the land.....but in all these things he is not the servant of anyone, save of the law itself. The responsibility for law enforcement lies on him. He is answerable to the law and to the law alone."
The same view was expressed by the other learned Judges. We may also refer to the judgment of the Madras High Court, in Varadachariar V. Commr. Of 13 ::: Downloaded on - 15/04/2017 18:32:17 :::HCHP 14 Police (1969) 2 Mad. LJ 1, where the learned Judge, Kailasam, J., after referring to the English case cited above held that the Commissioner of Police should proceed and act in accordance with the directions .
indicated in the aforesaid judgment."
8. In AIR 1983 Calcutta 266 titled as Sunil Kumar Halder and others Vs. Nishikanta Bhandari and others, the learned Single Judge has held that the Court can order police protection under Section 151 C.P.C. towards the implementation of order for injunction. The learned Single Judge has held as under:
"4. In the result, the application is allowed. The order passed by the learned Munsif is set aside. The learned Munsif is directed to give appropriate directions upon the police as prayed for in the application Pled by the petitioners under Section 151 of the Civil P. C. within two weeks from the receipt of the order from his Court. There will be no order for costs in this application. The order may be communicated by a spl. messenger at the cost of the petitioners."
9. In AIR 1993 Calcutta 288 titled as Smt. Charubala Dev Nath Vs. Shri Niranjan Pathak, the learned Single Judge has held that the Court has power and jurisdiction under Section 151 to grant police help to implement its order. The learned Single Judge has held as under:
"16. In the cases of Saudamini Roy Chowdhury 14 ::: Downloaded on - 15/04/2017 18:32:17 :::HCHP 15 (supra) and Sunil Kumar Haldar (supra) this court has taken the view that the Court has the power under Section 151, Code of Civil Procedure to direct the police to render help for implementation of its order."
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10. In AIR 1993 Andhra Pradesh 103 titled as Matha Gavarayya and others Vs. The District Collector, E.G. Distt.
and others, the learned Single Judge has held that injunction decree can be implemented by seeking police aid or by seeking necessary directions from either Civil Court under Section 151 or High Court under Article 226 of the Constitution of India. The learned Single Judge has held as under:
"4. Coming to two CRPs, filed by the 3rd respondent- society, i.e., CRP Nos. 2382 and 2383 of 1991, they have been preferred against the orders passed by the court of the District Munsif, Kothapeta, seeking execution of the decree of injunction, the lower court had rightly rejected the said application as having no jurisdiction. It is pertinent to mention that a decree of injunction is inexecutable but measures can be taken to make it ettective. For implementation of the injunction order, it is always open to the decree-holder to seek police aid and for that purpose seek necessary directions from either the civil court invoking its inherent .power under Section 151, CPC, or invoke extraordinary jurisdiction of this court under Article 226 of Constitution of India, and as such, these two CRPs, are devoid of merits as there is no error or jurisdiction committed by the court below."15 ::: Downloaded on - 15/04/2017 18:32:17 :::HCHP 16
11. In 1996 ILR (Kar) 1271 titled as Papanna Vs. Nagachari, the learned Single Judge has held as under:
"5. The defendant filed objections, contending .
that the police help cannot be ordered to implement the orders of injunction and if there is any violation, the proper remedy of the plaintiff is to move the Court under O. 39, R. 2A and Court has no jurisdiction to order police protection. The defendant's objection was overruled and the trial Court passed an order directing the P.S.I. Anekal to assist the plaintiff in implementing and enforcing the orders passed by that Court on I.A.I. application for temporary injunction. The defendant has challenged the same.
6. The counsel for the revision-petitioner contended that though there is an order of temporary injunction against him, in fact, he is in possession of the same and even if there is any violation of order of temporary injunction, the proper remedy of the plaintiff is to move the Court under Order 39, Rule 2A and that the Court has no jurisdiction to order police protection in such circumstances. I am not inclined to accept both the contentions.
7. It is to be noted that the order of temporary injunction was confirmed by, the trial Court after hearing the defendant and considering his objections by its order dated 3-7-1992. Defendant, dissatisfied with the above order, filed an appeal before the Addl. Civil Judge, which was also dismissed on 20- 11-1993 on a consideration of the entire matter. It does not lie in the mouth of the defendant to contend that he is still in possession of the property and that the order of 16 ::: Downloaded on - 15/04/2017 18:32:17 :::HCHP 17 injunction cannot be given effect to. When the Court has prima facie considered the matter and has granted a temporary injunction in favour of the plaintiff after hearing the defendant, the Court has to enforce the .
same and the contention of the defendant that he is in possession, cannot be accepted at this stage.
8. The second ground raised by the counsel for the revision-petitioner is also equally untenable. The mere fact that there is provision under Order 39, Rule 2 A for taking action for disobedience of an order of temporary injunction, does not prevent the Court from taking steps to see that its orders are implemented. If the Court had no power to implement its own orders, then there is no purpose in the Courts passing orders in matters coming before them. The remedy under. Order 39, Rule 2A is not exhaustive and Court can pass appropriate orders to see that its orders are enforced. In necessary cases, even the police can be directed to enforce the orders of the Court. In this case that alone has been done by the trial Court and I do not find any error of jurisdiction warranting interference under Section 115 of C.P.C."
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12. In AIR 2004 Supreme Court 2093 titled as Shipping Corporation of India Ltd. Vs. Machado Brothers and others, their Lordships have held that if there is no specific provision which prohibits the grant of relief sought in an application filed under Section 151, the Courts have all the necessary powers under Section 151 to make a suitable order to prevent the abuse of the process of Court. The Division Bench 17 ::: Downloaded on - 15/04/2017 18:32:17 :::HCHP 18 has held as under:
"20. From the above, it is clear that if there is no specific provision which prohibits the grant of relief .
sought in an application filed under Section 151 of the Code, the Courts have all the necessary powers under Section 151, CPC to make a suitable order to prevent the abuse of the process of Court. Therefore, the Court exercising the power under Section 151, CPC first has to consider whether exercise of such power is expressly prohibited by any other provisions of the Code and if there is no such prohibition then the Court will consider whether such power should be exercised or not on the basis of facts mentioned in the application."
13. Accordingly, the order dated 12.1.2012 is set aside. The Superintendent of Police, Kangra at Dharamshala is directed to render the police assistance to the petitioner/plaintiff towards the execution of the judgment and decree dated 12.1.2012, rendered in Civil Suit No. 72 of 2004 within a period of one week from today.
14. In view of this, the present petition is disposed of, so also the pending application(s), if any. No costs.
(Rajiv Sharma), Judge July 8, 2015 (kalpana) 18 ::: Downloaded on - 15/04/2017 18:32:17 :::HCHP