Smt Karisiddamma W/O Kottambari ... vs Smt Sanna Kenchamma W/O Mesthri ... on 29 July, 2009

[Cites 1, Cited by 19]

Karnataka High Court

Smt Karisiddamma W/O Kottambari ... vs Smt Sanna Kenchamma W/O Mesthri ... on 29 July, 2009

Equivalent citations: AIR 2010 (NOC) 287 (KAR.), 2010 (1) AIR KANT HCR 271, 2010 A I H C 1310, (2010) 3 ICC 345, (2010) 3 CIVLJ 190, 2010 (4) KCCR SN 170 (KAR)

Bench: Ashok B.Hinchigeri

1

 

IN THE HIGH COURT OF KARNATAKA, BANGALORE
DATED TIIIS THE 29th DAY OF JULY 2009._  j

BEFORE

THE HON'BLE MR. JUSTICE ASHQK B P_iEI\i'CI~:ijiK€§'}'E:':R'I.VV    "
WRIT PETITION NO. 17106/'2O0'9fC¥MI>CPI(:}    I

BETWEEN:

SMT KARISIDDAMMA  
w/0 KOTFAMBARI SHNARAYAPPA, "
(SENIOR CITIZEN BENEFIT 13107:" CLAIMED)
AGRICULTURISTS   
RESEDING AT KIALKERIVIVILLAGE, ' ' 
HONNALI TOWN, 'IIoI\i.£NAL.1V',t~I'ALUK;,»~_ I ' 
IJAVANGERI-:._ D1E5T'"__<I(3T  ~ ' 

H.K. THAMMANNA @ 
S/O KOTTAMBAR1 VSHIIVARAYAPPA,
AGRFCULTURI.-S17S"«. '.     
RESIBING AT KALKERI 'VILEAGE.
HONNALI 'FOWN, 'I~ION'1'aI.g§ILII'IrALUK,
DAVANG'ERE.,DIsTRtCT.._

sI,IiRI%:sI+I,

 1. S',/-0 I«;,0TmMBAR1"sHIVARAYAPPA
» jIaIr:;I<I'_cUL*IfIJ'I?<IsTs
 'RES1E}'ING AT KALKERI VILLAGE,
~.H0I\IN'AI'_;I HONNALI TALUK,

D.{\VANGEI_EiE DISTRICT

PURU§}."IOTHAMA,

 x $40 KUITAMBAR1 SHIVARAYAPPA
 _AGmcUL'mRIsTs
 ._ RESIDING AT KALKERI VILLAGE.

%HONNALI TOWN, HONNALI TALUK.
VDAVANGERE DISTRICT  PETITIONERS
[BY SR1 S V PRAKASH -- ADVOCATE)



 ~38) .  .. A pp

AND:

SMT SANNA KENCHAMMA

W/O MESTHRI SIDDAPPA,

OCC: HOUSEMAKER 81 AGRICULTURIST,

R/O DADDAGANAKERI,

HONNALI TOWN, HONNALI TALUK, 
DAVANGERE DISTRICT  RESPONDENT

THIS WP FILED PRAYING TO ISSUE A NATURE OF CERTIORARI & QUASH THE ORDER:.DT..e1V2{'I'2iCi8,d"~. 4_ PASSED BY THE LEARNED CIVIL JUDGE {JR.D1xI1._H.oE1\:AL1 ON,' iA.1\§O.4, IN OS.NO.182/O7, MARKED 'ANN--P ?TO_TH'E3'WP._:'p. THIS WRIT PETITION CO§\/IIN(§aOI?It'SF;:OI'S{' HEARING BEFORE THE COURT .TODAY_,"COLIR'§'e2MAD§} THE; FOLLOWING:

The :vpetitieri5e_rs'dthe challenge to the order, dated I2/T2'/S2008 Court of the Civil Judge [Jr.Dn.)p.--at H&m:1a}:Te-- of; EA. No.IV in O.S.No.182/2007 it the case in brief are that the respondent E"""vfi1ed the suit the respondents seeking the reiief of ""-itifpermanent-.injunctior1. In the said suit proceedings, she also i11eide'i;AieiNo.I for the grantﬁ of temporary injunction. The Trial Court, by its order, dated 15/ 4/ 2008 granted the temporary injunction after hearing-both the sides. The respondent:' I .A.No.IV ventilating her grievance before the 'I'ri'.,a':1:"

the petitioners are unnecessarily obstrticting If1er;ing't'1f1eVu-ae of the road. It was the further grieVance4'of"t.he reepondent=.:that'--.. she approached the police seekingttheivr Vhnt in' vain. She therefore had to th_eh'e'ai'd' avdirection to the Police Sub-Inspector'L(:P-.'$ft"tfor Honnali to give poﬁce protection ;"to:'«£.t:1*1e the suit scheduie » hy its order, dated 12/ 12/2oo:3ta':1(§xx/e,é;j.V tditrevcting the 135.1,, Honnali to give necessary' to the respondent, her family m4eo1bere"4.Vand "her.'V'co;o1ies to make use of the road thegplaintttAscheduie. Aggrieved by the said order; 'this ptpetitionf:ivs'"presented. S1'i_"A':.S.V.Prakash, the learned counsel for the submits that in case of violation or breach of the . 'tittejnigporary injunction order, the one and the only course open £83.

to the aggrieved party is to make the necessary application under Order 39 Rule 2--A Code of Civil Procedure.,VVi'»~.i:'9Q8 (ORG. for short]. The police protection can _ nor be given to obey the temporary..injunc_tion~-:ozfd'erg'_ "

support of his submissions, the 1ear'ned[_"co'uns_ei~ has relied upon the judgment of thisii._v'C.ourti"- _ ofvii' MANCHEGOWDA 82. ANOTIER p,iuI§;pMaoAiAa,eoirooorted in 1987(1) KLJ 119, wherein"it_'is"hé'Id Court cannot give direction to__ the order of temporary ::the""speciﬁc provisions contained oi The iearned counsel has also relied! oooizooiosoofooortod order dated 21/9/2001 passed -the of this Court in the case of __B 32, OTHERS, in Contempt of [Civil]. The relevant portionwof said"'unr.epor'ted order is extracted hereinbeiow.

"4. No doubt, if there is any violation of A iryunction or breach of the order one can approach the competent Court under Order 39 38% Rule 2-113 C.PC. and the Court is competent to take action. Further, ij' any order is passed,-- there is a provision to file appeal against that~ order. "

4. Nextly, the learned counsel conitendsﬁthat; in; question suffers from non--app1ication'~..of'--,mind:.V_*v_l 'The V? Court has not applied its mindtdas to" ."'.bo'undaries. it schedule, etc., of the properties According to the learned counsel, theporderpinrﬁjuesitioin has'At~»ejn_ab1ed the police to sit in Court. He submits concerned, it is a very serious matter.' it giiren in the plaint and the particulars mentioned temporary injunction order are not cieari; the petit'ion:ersp:are disputing the very existence of the 1'oa'd..V » 1_f1a'Je'~»' gone through the I.A.No.IV, its supporting the objections thereto and the order dated It is worthwhile to mention here that the 351% granting of the temporary injunction order itself is not challenged.

6. The Division Bench's order in Hana1nai1vWa's'g:'~--c'ase' (supra) does not come to the petitioners7__reseiie"aiiyV"'wa3I_. T"

The sum and substance of the said ortderiis party cannot resort to the ﬁling When"~d' there is an alternative remedy t1-11'der- 'Order 39--.Ru:ie 2--A of C.P.C. The granting of to enforce the temporary inj}.1I1i3:ti_'On consideration in the said case The View taken in continue to govern the field.

this Vregard_,g, it is worthwhile to refer to the 'Aridhra Pradesh High Court in the case of SMT.B SUSHEELA, reported in AIR 'wherein it is heid that for implementing the injn"nctio~n order, the Court can always exercise its inherent H -pdowers to grant police aid. The aggrieved party cannot be 9.83% preciuded from seeking police assistance in enforcing the temporary injunction order, just because he can €X€ITCiS_§i'T_.Vh€ remedy provided under Order 39 Rule 2-A of relevant portion of para 3 of the sai_d"deeision"'ektraeted"

hereinbelowz "3. mere fact i'hcit....the'A'acVtion taken against either for tithe injunction under oridunder the Contempt of in the way of the Court steps for ensuring___ .ohedte:nce 1. the order. The Court need n.o;t_:tudit is breached.

In ﬁt CQR undoubtedly direct policevciidpds measure. This power though '"not* conferred, is a power int:_ide'ntdl "ancitiary to the exercise of the power ' iryiincﬁon pending the suit."

i's:"V"a3soi,.profitable to refer to the Division Bench juaigmerit pp Andhra Pradesh High Court in RAYAPATI {.'~TAiIDE1ﬂ3£A POTHINENI NARASIMHAM, reported in AIR it 53, wherein it is heid that the Rule 2-A does not the implementation but oniy deals with the 35%.

punishment for disobedience. The relevant paragraph is extracted hereinbeiow :

"6. In the Allahabad case also, the.':iea.rntéd"t it Judges merely observedthatt had no jurisdiction to police 'A interfere in the matter ofJe.\:ecutlLart decree. The inheren(~...vpowers e.)gel*cis>ai5Ee'VVi§y' the civil court 'Sunder;.Secttion..__151,ﬁiCiviiVEP.C. were not referred also proceeded on the 'ti'iat':i~.'ft_;--:3:cause the disobed'i;e.ncf.'e ordier--:."Qf.__.the court was punisi ugitriiipenaitiesimentioned in Order Court could not ;giueto_ the police with respect to t'fleiexecution' t-he'«decree. The provision for _ penalty" entirely diJj"erent from the 'ivefforcerlien.t____HoHf the order itsey' as we have earlier. Such a provision would cannot preclude the court from exercisirlg its inherent power under Section it ..1?t1,.V'Civil P.C. in order to do justice or to it " = prevent abuse of the process of court. But the actual decision given therein with respect to the direction given to the Superintendent of ﬁﬁivi 10 1 1. In the Wake of the case-law to which the references are made hereinabove, I decline to interfere in theinatter. However, if the petitioners have any genuine gri_eéyanc_e---..over"' _ the mentioning of the particu1ars__o.f__ the" "

operative portion of the temporary :*injunctiofn_ always open to them to seek variance or modifi.cat.ion...o--f thef' said order. In the light of ;..grantin-gllitiiel"temporary injunction order after hearing both at whose favour the temporary inJ1u.incti,on to the Court that the use of the road and that to her rescue, the Trial Court is well' yyithiri pass an order directing the police to give in the enforcement of the The Court can grant police aid exercisingpxitsfinherent powers. Otherwise the interests of the litigants"car1__"notihe protected against a party,who violates the "'temporary injunction order.

35%.

12. This petition is dismissed but subject observations made in paragraplmll herein abo'_i}e.V as to costs.

gm.

akd*

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