Madras High Court
S.N.J.Abdul Hakeem vs Assisrathul Musthakeem on 11 April, 2005
Equivalent citations: AIR 2006 MADRAS 67, 2006 A I H C (NOC) 53 (MAD), (2005) 2 MAD LJ 533, (2005) 2 MAD LW 621
Bench: Markandey Katju, F.M.Ibrahim Kalifulla
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 11/04/2005
CORAM
THE HON'BLE MR.MARKANDEY KATJU, CHIEF JUSTICE
and
THE HON'BLE MR. JUSTICE F.M.IBRAHIM KALIFULLA
Writ Appeal No.683 of 2005
and
W.A.M.P.No.1310 of 2005
1. S.N.J.Abdul Hakeem
2. K.Shahul Hameed
3. A.Alla Pitchai ..Appellants.
-Vs-
1. Assisrathul Musthakeem
Etheemkhana Trust,
Rep. by its Secretary
Dr.Jafarullakhan
155, Madanagopalpuram,
Perambalur.
2. The District Collector,
Perambalur District.
3. The Superintendent of Police,
Perambalur District.
4. The Inspector of Police,
Perambalur. ..Respondents.
Writ Appeal filed under Clause 15 of the Letters Patent against
the order passed in W.P.No.34132 of 2004, dated 21.03.2005.
!For Appellants :: Mr.T.R.Rajagopalan, Senior Counsel
for Mr.C.Ravichandran.
^For Respondent -1 :: Mr.AR.L.Sundaresan.
For Respondents 2 to 4:: Mr.V.Raghupathy, Govt. Pleader.
:J U D G M E N T
(Judgment of the Court was delivered by The Hon'ble The Chief Justice) This writ appeal has been filed against the impugned order of the learned single Judge dated 21.03.2005. We have heard learned counsels for the parties and perused the record.
2. It appears that a temporary injunction dated 09.08.2004 was granted by the learned District Munsif, Perambalur in Interlocutory Application No.282 of 2003 in O.S.No.73 of 2003. Thereafter, a writ petition was filed in this Court to give adequate police protection to the writ petitioner for effective implementation of the aforesaid interim injunction. That writ petition has been allowed by the impugned order of the learned single Judge, and hence the present writ appeal.
3. We are of the opinion that the impugned order cannot be sustained. When a temporary injunction order is passed in a suit by a civil Court under Order 39 Rule 1 of the Code of Civil Procedure and it is not complied with, the remedy of the plaintiff is either to apply under Order 39 Rule 2A of the C.P.C. or under Section 151 of the C.P.C., and certainly not to approach this Court under Article 226 of the Constitution of India. The High Court is not an executing Court, vide Ghan Shyam Das Gupta Vs. Anant Kumar Sinha, AIR 1991 SC 2251 and Nallathambi Vs. The Superintendent of Police, Cuddalore, 2005 -1- L.W. 422. There are adequate provisions under the Code of Civil Procedure itself which enable the civil Court to enforce and implement its orders. For instance, Order 39 Rule 2A of the C.P.C. states:-
"R.2A. Consequence of disobedience or breach of injunction -
(1) In the case of disobedience of any injunction granted or other order made under Rule 1 or Rule 2 or breach of any of the terms on which the injunction was granted or the order made, the Court granting the injunction or making the order, or any Court to which the suit or proceeding is transferred, may order the property of the person guilty of such disobedience or breach to be attached, and may also order such person to be detained in the civil prison for a term not exceeding three months, unless in the meantime the Court directs his release.
(2) No attachment made under this rule shall remain in force for more than one year, at the end of which time, if the disobedience or breach continues, the property attached may be sold and out of the proceeds, the Court may award such compensation as it thinks fit to the injured party and shall pay the balance, if any, to the party entitled thereto."
4. Thus, if a temporary injunction order is not obeyed, the Court granting the injunction may order the property of the defendant to be attached and also direct such person to be detained in the civil prison upto three months.
5. Apart from Order 39 Rule 2A of the C.P.C., in our opinion, under Section 151 of the C.P.C. the Civil Court can also pass appropriate orders to secure compliance of the temporary injunction including grant of police protection. Section 151 of the C.P.C. is very widely framed. It has to be interpreted to mean that it gives power to the Court to pass any order to secure the ends of justice, unless expressly or impliedly prohibited by some provision of the statute, and not that the Court has no power to pass any order under Section 151 unless expressly permitted by some provision of the C.P.C. Thus, in Century Flour Mills Ltd. Vs. S.Suppiah, AIR 1975 Mad 270 (vide paragraphs 7 and 9) a Full Bench of the Madras High Court held that Order 39 of the C.P.C. does not place any limit on the scope of the inherent power under Section 151 of the C.P.C.
6. In Rayapati Audemma Vs. Pothineni Narasimhan, AIR 1971 AP 53 a Division Bench of the Andhra Pradesh High Court held that as there was no express provision in the C.P.C. for the implementation of a temporary injunction order the Court can grant police aid under its inherent power under Section 151. However, we wish to add that we do not agree with the A.P. High Court that Article 226 of the Constitution should be invoked for obtaining police protection to secure obedience of a temporary injunction order, since Section 151 of the C.P.C gives sufficient power to the civil court for this purpose. It is well settled that writ jurisdiction should not be ordinarily invoked when there is alternative remedy. Since alternative remedy under Section 151 of the C.P.C. is available in the present case, writ jurisdiction should not have been invoked, and the writ petition should not have been entertained by the Court for this purpose.
7. In Magna Vs. Rustam, AIR 1963 Rajasthan 3, the Rajasthan High Court also held that Section 151 of the C.P.C. can be utilized for enforcing a temporary injunction order.
8. In Sunil Kumar Halder Vs. Nishikanta Bhandari, AIR 1983 Calcutta 266, the Calcutta High Court held that the Court can order police protection under Section 151 of the C.P.C. for the implementation of a temporary injunction order.
9. Thus, Section 151 of the C.P.C. gives very wide power to the civil court to pass appropriate orders in the ends of justice, and in our opinion, this power also includes the power to give police protection if according to the Court the situation so requires. The same view has been taken by a Division Bench of this Court in Sri-la-Sri Sivasubramanyananda Swami Vs. Sri-la-Sri Arunachalasamy, 1992 T.L.N.J. 120.
10. Learned counsel for the 1st respondent has relied on a decision of the Division Bench of this Court in Pentesia Chemicals Ltd. Vs. The Secretary, Pentesia Pattali Thozhil Sangam, etc., 1992 W.L.R. 359. That decision no doubt says that the High Court has power under Article 226 of the Constitution to grant police protection even in a suit where only notice was issued on the injunction application. However, in our opinion, that decision is clearly distinguishable. The facts of that case were totally different. The facts there were that there were threats of violence by the workers of a factory as well as use of vulgar abusive language against the Executives of the Company and their family members. Thus, the facts in that case were totally different from the facts of this case. In a factory if the production is hampered, it affects not only the owner of the factory but it may affect the society at large and also the nation because industrial production may go down. Hence, in certain cases orders have been passed in writ jurisdiction to grant police protection to the officers of a company where there was threat of violence by the workers. The present is not a case where there was threat of violence by workers to a factory owner. Hence, that decision is clearly distinguishable.
11. Moreover, we are not questioning the power of the High Court under Article 226 of the Constitution of India to grant police protection in exceptional and appropriate cases. The question is, however, whether it should be granted under Article 226 in such a case where there is already a temporary injunction order under Order 39 of the CPC and the question is only of enforcement of that order. In a Full Bench decision of this Court in Century Flour Mills Case (supra) it has been held that the inherent powers of the civil Court under Section 151 , CPC are very wide. We agree with this view, but then for that purpose the petitioner should approach the civil Court itself under Section 151 CPC and not file a writ petition under Article 226 of the Constitution before this Court.
12. In our opinion, if writ petitions are entertained for enforcing temporary injunction orders passed by the civil Court, there will be a flood of writ petitions in this Court, and this Court, which is already overburdened with arrears, may find it impossible to cope up with this extra burden.
13. Learned counsel for the 1st respondent then submitted that the writ petition has been allowed and hence the principle of alternative remedy cannot now be invoked. This view is not correct. There are several decisions where even after the writ petition was allowed by the High Court the Supreme Court in appeal dismissed the writ petition itself on the ground of alternative remedy e.g. S.Jagadeesan Vs. Ayya Nadar Janaki Ammal College, AIR 1984 SC 1512. There is no hard and fast rule that once the writ petition is admitted or allowed, it cannot thereafter in appeal be dismissed on the ground of alternative remedy. It all depends on the facts of each case. In our opinion, in this case the learned single Judge gravely erred in entertaining the writ petition and allowing the same. The writ petition should have been rejected at the very threshold on the ground of alternative remedy under Order 39 Rule 2A and Section 151 of the C.P.C. We cannot encourage this kind of practice of filing writ petitions when equally efficacious alternative remedy is available under the provisions of the Code of Civil Procedure. Moreover, the High Court under Article 226 of the Constitution is not an executing Court. The writ appeal is allowed and the impugned order of the learned single Judge is set aside. No costs. Consequently, connected W.A.M.P. is closed.
14. However, if any application under Order 39 Rule 2A and/or Section 151 of the C.P.C. is filed before the civil Court, we hope and trust that the same will be decided very expeditiously, in accordance with law, after hearing the parties concerned.
Index: Yes Internet: Yes ns/sm Copy to:-
1. The District Collector, Perambalur District.
2. The Superintendent of Police, Perambalur District.
3. The Inspector of Police, Perambalur.