Madras High Court
S. Kalimuthu vs S. Arumugam And 2 Others on 8 July, 1998
Equivalent citations: 1998(3)CTC579
ORDER
1. This Revision Petition has been preferred, being aggrieved by the fair and final order dated 21.4.1998 made in I.A.No.324 of 1998 in O.S.No.411 of 1997 on the file of the Principal District Munsif Court, Sankarankoil in directing police protection to the respondents. This Revision has been preferred under Section 115 of the Code of Civil Procedure. For convenience, the parties to this revision will be referred as arrayed in the suit O.S.No.411 of 1997. The first defendant in the suit is the Revision Petitioner herein.
2. The plaintiffs 1 and 2 instituted the suit O.S.No.411 of 1997 against the defendants 1 & 2 seeking the relief of declaration of title and consequential relief of permanent injunction forbearing the defendants or their subordinates or men or agents from in any manner interfering with the plaintiff's possession and enjoyment of the suit property.
3. Pending the suit, the plaintiffs filed I.A.No.1688 of 1997 under Order 39 Rule 1 & 2 read with Section 151 C.P.C. seeking the relief of ad-interim injunction restraining the defendants from interfering with the plaintiffs' possession and enjoyment of the suit property. The plaint was presented and taken on file on 25th November 1997. So also the injunction application. On 25.11.1997, the Court below passed orders of ad- interim injunction under Order 39 Rule 1 & 2 to be in force till 9.12.1997. The said order of injunction reads thus:
"ORDER: Heard. Perused documents No.1 to 4. Prima facie case exists. Ad interim injunction given under Order 39 Rule 1 & 2 till 9.12.97 Affidavit 26.11.1997. Notice 9.12.97 Id/P.J., Prl.District Munsif, 25.11.97."
4. On 9.12.97 the injunction application was called. However, the Presiding Officer was on casual leave and the matter was reposted to 22.12.1997. The defendants 1 and 2 have been served for the hearing on 9.12.1997 itself. On 22.12.1997, the defendants 1 and 2 entered appearance through their advocate and they were granted time till 27.1.1988 for filing counter. The Court below had extended the injunction order till 27.1.1998. The injunction application was called on 27.1.98, 2.4.98, 6.4.98, 7.4.98, 15.4.98, 21.4.98, 23.6.98 and the defendants have not filed their counter in all those hearings.
5. At the instance of the defendants, the Court below had extended time for filing counter affidavit. At the same time injunction has been extended from time to time. Ultimately on 23.6.1998, the Court below had extended the orders of injunction till 18.8.1998. As such, it is evident from 22.12.1997 to 23.6.1998 for a period of six months, the defendants have not cared to file their counter affidavit in the injunction application.
6. It is also to be pointed out that the Court below had extended time to file counter affidavit as well as extended the orders of ad interim injunction from time to time without disposing of the injunction application as required by Order 39 Rule 3 A. Infact as seen from the orders passed by the Court below in the injunction application No.1688 of 1997, the provisions of Order 39 Rule 3 and 3 A had not been followed nor the Court endeavoured to give a disposal to the injunction application as required by Rule 3A of Order 39.
7. It may be that the defendant had been seeking time for filing counter for several months. However, there is no justification to grant extension for a period of six months and above to enable the defendants to file a counter affidavit. If the defendants fail to file the counter affidavit, it would have been proper on the part of the Court below to grant one or two extensions for filing counter affidavit, failing which it ought to have disposed of the injunction application on merits, as required by Rule 3A of Order 39. These facts, which are not in dispute would show that the Court below had not followed the letter and spirit of Order 39 Rule 3 & 3 A.
8. However, strictly speaking in the absence of challenge to the orders of ad interim injunction by the defendants in the suit, this Court need not take up the issue relating to the validity of orders of injunction and extension of the same from time to time without deciding the injunction application as prescribed by Rule 3, of Order 39, C.P.C. Though the learned counsel for the Revision Petitioner collaterally sought to raise such a contention in this Revision, this Court will not be justified in going into the correctness or propriety of ad interim injunction order passed at the first instance and extended from time to time commencing from 22.12.1997 to 18.8.1998.
9. During the currency of the injunction order, the plaintiffs took out I.A.No.324 of 1998 under Section 151 C.P.C. and the said application was filed on 25.2.1998. In the said application, the plaintiffs prayed for police protection to the plaintiffs to give effect to the orders of injunction already passed in I.A.No.l688 of 1997.
10. In the affidavit filed in support of the application, it has been alleged that even after grant of injunction, the defendants are interfering with the possession and enjoyment of the suit property and that in the absence of any order or direction of the Court below, the local police are not rendering any assistance to the plaintiffs. The first defendant in the suit filed a counter affidavit in the said application and it was adopted by the second defendant wherein the defendants contended that the plaintiffs are in possession and enjoyment of the suit property exclusively that the ex parte order of injunction has been secured by suppressing material facts, that the plaintiffs are not in possession, that based upon the orders of ad interim injunction, there could be no further direction to the police to give protection or direction to enforce the orders of injunction, that the plaintiffs are trying to interfere with the defendants' possession armed with ex-parte orders of injunction and with the assistance of muscle power and police, that the second defendant is an unnecessary party and that the averments set out in the affidavit are false.
11. The defendants further contended that till the application for ad interim injunction is decided, no direction for police assistance could be granted. The defendants also relied upon the decision of the Kerala High Court reported in Kochupennu Ambujakshi v. Veluthakunju Vasu Channar and others, and contended that no direction to the police could be given at this stage.
12. The Court below by fair and decreetal order dated 21.4.1998 while holding that the order of ad interim injunction granted in I.A.No.1688 of 1997 has been extended from time to time, that during the currency of orders of injunction, the defendants have no right to interfere with the plaintiff's possession and enjoyment of the suit property and further held that the orders of injunction already granted requires to be given effect to on the facts of the case and hence directed the Police to give effect to the orders of injunction passed I.A.No. 1688 of 1997. Being aggrieved, the first defendant in the suit has preferred the present Revision Petition.
13. Mr. K. Rajkumar, learned counsel appearing for the Revision Petitioner vehemently and with eloquence contended that the orders passed by the Court below is without jurisdiction and suffer with material irregularity as well as illegality. Mr. K. Rajkumar relied upon the judgment of the Kerala High Court reported in Kochupennu Ambujakshi and others v. Veluthakunju Vasu Channar and others and contended that when only an ex parte order of injunction has been passed by the Court below, it would be pre-mature and dangerous to enforce the ex- parte order of injunction when its grant and continuance is being contested. The learned counsel relied upon the following passage in the said judgment.
"A question arises whether the assistance of the police can be requested for to enforce an ad interim order of injunction. It has to be made dear that such an order is only an ex-parte older passed by the Court on satisfaction that the purpose of the injunction order would be defeated in case notice is directed to be issued to the opposite party. The position is different in the case of a final order passed in an injunction petition. As observed by Viswanatha Iyer, J in George Mirante's case (supra) it would be premature and dangerous to enforce the ex-parte order of injunction when its continuance is opposed. Such orders are issued on the basis of the averments contained in the plaint and affidavit of the plaintiff. The true picture emerges only after hearing both sides. It is for these reasons that was held that it is imperative that police should not be allowed to intervene or interfere at this stage in matters of possession which entail civil disputes, especially when the matter is one at the interlocutory stage of proceeding. I am in respectful agreement with the views expressed by Viswanatha Iyer, J and hold that the Court shall not interfere in the matter of an interim ex-parte order with a direction for police aid. Only a final order passed under R.1 or R.2 of O..39 can be enforced with the assistance of the police."
14. Per contra Mr. Rama Jagadeesan, learned counsel appearing for the respondent pointed out that the order of injunction has been in force since 25.11.1997 onwards, that the order of injunction has been extended from time to time, that the last of extension is valid upto 18.8.1998, that till 23.6.1998 the defendants have not chosen to file counter in the injunction application and that their failure to file a counter affidavit and contest the injunction application had resulted in the order of injunction being continued for the past 7/8 months. As such despite the order of injunction which is valid the possession of the plaintiffs is sought to be disturbed or interfered, it is always open to the plaintiffs to seek for direction to enforce the orders of injunction and there is every justification for the same. In this respect the learned counsel for the respondent relied upon the passage found in the very same judgment of the Kerala High Court in Kochupennu Ambujakshi and others v. Veluthakunju Vasu Channer and others, . The reliance was placed on the following passage:
"There is a general complaint in some of the petitions presented to this Court that the civil Courts are not assisting petitioners in enforcing the decree for injunction. That complaint is not without any basis. Civil Courts before whom decrees of permanent injunction or orders of temporary injunction are sought to be enforced shall therefore see that the decrees and orders are enforced through the officers of the Court and the request for police assistance should be promptly considered and the assistance of the police requisitioned, if found necessary. The Courts should bear in mind that granting of a decree or passing an order is not the end of the matter whereas the fruits of the decree should reach the decree holder. Every endeavour shall therefore be made by the Courts to see that the orders of the Court are implemented or enforced, if need be with police protection."
15. Before proceeding further with the discussions, it would be useful to refer to the Division Bench Judgment of this Court reported in Sri-la-Sri Sivasubramanya Ananda Swami v. Sri-la-Sri Arunachalasamy Chidambaram and Another, 1993 (1) MLJ 274, wherein the Division Bench had occasion to consider the issue relating to the issue of direction to the police under Section 151 to extend their aid in the execution of the decrees or orders or implementation of orders of injunction passed by Civil Court. Somasundaram, J speaking for the Division Bench, after analysing the entire case law, held thus:
"We must bear in mind that when an order of temporary injunction is granted by the Court under 0.39, Rule 1 of the Code or when a decree for permanent injunction is passed by the Civil Court, it involves the following three stages:
The first stage is the issue of an order of temporary injunction or passing of a decree for permanent injunction. When a petition under 0.39, Rule 1 of the Code is filed by a party, the court being satisfied that the conditions prescribed under 0.39, Rule 1 of the Code are satisfied, may issue an order of temporary injunction in favour of the party, who has applied for the same. Similarly, the court after full trial of a suit and upon the merits of the case, may pass a decree for permanent injunction in favour of a party. There is specific provision in the Code namely 0.39 Rule 1 dealing with the grant of the order of temporary injunction. Sec. 38 of the Specific Relief Act deals with the circumstances under which a decree for perpetual injunction can be passed by the courts.
The second stage is the implementation of the order of temporary injunction or decree granting perpetual injunction. There is no specific provision under the Code dealing with the implementation of the order of temporary injunction or a decree for perpetual injunction.
The third stage is the punishment for disobedience of the order of injunction. 0.39 Rule 2-A of the Code deals with the consequences of disobedience or breach of injunction or other orders made under 0.39, Rule 1 of the Code. 0.21, Rule 32 of the Code says that where a party against whom a decree for injunction has been passed, has had an opportunity of obeying the decree but has wilfully failed to obey it, the decree for injunction may be enforced by his detention in civil prison or by the attachment of his property or by both. Thus the Code contains specific provision with regard to the grant of an order of temporary injunction and for punishing the party who disobeys the order of temporary injunction and the decree for perpetual injunction. However, there is no provision in the Code providing for the implementation of the order of temporary injunction or decree for perpetual injunction granted by the courts. When mere is no specific provision of law which is sufficient to implement the order of temporary injunction or the decree for perpetual injunction granted by the court, we do not see why the provisions of Sec. 151 of the Code cannot be invoked for the said purpose to render justice or to redress the wrong, because, the courts should not only have the power to pass an order, but also should have the power to implement the said order. Therefore, when a party has obtained an order of temporary injunction from a court under 0.39 Rule 1 of the Code and the other party against whom the order of injunction is passed disobeys the same, the aggrieved party can certainly approach the court invoking the power of the court under Sec. 151 and pray for police aid for the enforcement of the order of temporary injunction. When it is brought to the notice of the court that the enforcement of the order of temporary injunction is sought to be prevented or obstructed, the court in exercise of the inherent powers under Section 151, can direct the police authorities to render all aid to the aggrieved party in the enforcement of the order of the injunction granted by the court in order to render complete justice. It must be remembered, by ordering police help to the party who has obtained an order of temporary injunction, the court merely takes the follow-up steps to implement its earlier order of injunction. In appropriate case, where the court finds that a party who had secured an order of injunction from the court is Dot in a position to have its full benefit owing either to obstruction or non-co-operation of the other side, it is always open to the Court to direct the police authorities to see that its order is obeyed. As observed by the Full Bench of this Court in Century Flour Mills Ltd., v. Suppiah, 1975 (2) MLJ 54 when there is a violation of an order of injunction granted by the Civil Court, or when something has been done in dis-obedience of such an order of injunction, it is the duty of the court as a matter of judicial policy to undo the wrong done in disobedience of the court's order and the power to enforce the order of injunction by ordering police aid is available under Sec. 151 of the Code.
In view of the above position of law, it has to be held that in appropriate cases, directions under Sec. 151 of the Civil Procedure Code can be issued by the civil courts to the police authorities to extend their aid and assistance in the execution of decrees and orders or to render aid to aggrieved parties for the due and proper implementation of the order of temporary injunction or a decree for permanent injunction granted by civil courts."
16. Their Lordships of the Division Bench had ultimately laid down the proposition that when a party has obtained an order of temporary injunction from a Court under Order 39 Rule 1 of the Code and the other party against whom the order of injunction is passed disobeys the same, the aggrieved party can certainly approach the Court invoking the power of the court under Section 151 and pray for police aid for the enforcement of the order of temporary injunction. It has been finally held that the Civil Court has got the powers to enforce the orders of injunction under Section 151 of the Code. The Civil Court can give direction to the police authorities to render assistance or aid for the aggrieved party for due and proper implementation of the order of injunction.
17. Recently, Srinivasan, J as he then was in Coimbatore Pioneer Mills Ltd. v. M/s. Chandra Textiles, 1991 (1) L.W. 52, while reiterating the earlier pronouncement of this Court as well as the requirement to follow the mandatory provisions of Order 39 Rule 2 and 3 held that the police aid cannot be granted simultaneously with an order of ad-interim injunction and if the Court is satisfied that the order of injunction passed is not obeyed by the other party and when it comes to the conclusion that a party who has secured the order is not in a position to enjoy the benefits of the order because of the conduct of the opposite party, the Court can grant an order of police aid as police interference becomes a necessity. Srinivasan, J. as he then was held thus:
"In one sense, the order is unworkable as it reads that police aid is granted, if necessary. So, the necessity of police aid is to be decided by the party and is not to be decided by the Court In such circumstances the District Munsif, ought not to have passed such an order. Further, police aid cannot be granted simultaneously with an order of injunction. Only if the court is satisfied that the order of injunction passed by it is not obeyed by the other party and the party, who has secured the order is not in a position to enjoy the benefits of the order because of the conduct of the other party and police interference is absolutely necessary, the court can grant an order of police aid. In this case, the District Munsif has thrown to winds all principles of law and justice and passed an order of police aid as if it should automatically follow and attach itself to an older of injunction whenever the civil court passed an order of injunction. The order granting police aid is wholly unsustainable and requires to be set aside. As I have already pointed out, the order passed in I.A.No. 1731 of 1991 granting interim injunction is unsustainable in law and has to be set aside."
18. The attention of this Court is drawn to the above said decision of Srinivasan, J. reported in Coimbatore Pioneer Mills Ltd. v. M/s. Chandra Textiles, 1991 (1) L.W. 52. The learned Judge has taken the view that either immediately after grant of temporary injunction or sooner thereof, it would not be proper for the Court to direct Police aid or assistance to enforce or to give effect to the order of ad interim injunction, when the injunction application is yet to be decided and requires to be disposed under Order 39 Rule 3 &3A and 4 of C.P.C.
19. It has been repeatedly held by this Court that if the Court after grant of ad interim injunction is not in a position to dispose of the application within 30 days, it has to record the reasons on the facts of the case. It is not disputed that here no such reason has been recorded. However, it has to be noted that the order of injunction has been extended from time to time and still in force, even as on date and till 18th August 1998.
20. The defendants have not chosen to challenge the order of injunction or extension thereof either by filing a Revision under Section 115 C.P.C. or under Article 227 of the Constitution. It is the defendants, who have suffered extension by not filing their counter. It is now represented that the counter has been served on the other side only on 24.6.1998 and it is yet to be filed into the Court. This is the conduct of the defendants 1 and 2. Though the Court below had failed to record the reasons in terms of Rule 3A of Order 39 and had been extending the orders of injunction as already pointed out yet it is the interim order of injunction has been in force for nearly 7 or 8 months. The defendants have to blame themselves for the present situation, which they have placed themselves and they are bound by orders of interim injunction.
21. The conduct of the defendants 1 and 2 in not filing counter affidavit and not taking an application to challenge the orders of injunction has also to be taken into consideration in this revision. For obvious reasons, the defendants 1 and 2 have kept silent for eight months and without demur allowed the orders of ad interim injunction being continued. As already pointed out though the requirement of Rule 3A and Order 39 had not been followed, the said injunction order is valid as of now. The defendants had contributed much for the orders of injunction being extended and he is bound by it till it is varied. However, it is made clear that it should not be understood that the Court below is not obligated to dispose of injunction application within the period mentioned in Rule 3A of Order 39.
22. It is needless to state that the Courts have got the inherent powers to execute or direct the police to render such assistance or aid to enforce its orders of injunction. This has been well settled by the Division Bench of this Court. While disposing of the application for police aid. the Court below allowed the application and the reason for the same reads thus:
23. It is to be pointed out that it is not a case where Police protection or aid has been ordered simultaneously or immediately or closely following the grant of ad interim injunction order passed by the Court below but only on 21.4.1998, when facutally the orders of ad interim injunction has been in force since 25.11.1997 onwards. The Kerala High Court in Kochupennu Ambujakshi case had held that till the injunction application is disposed of one way or other or passing of final orders by the Court below, there should be no direction for police assistance and such a view has been taken as the order of injunction is an ex parte order, while pointing out that the position will be different in the case of the final order passed in the injunction petition.
24. On the facts of the case, it is to be pointed out that the order of injunction though granted ex parte, has been extended in the presence of plaintiffs on 22.12.1997, 27.1.1998, 2.4.1998, 6.4.1998. 7.4.1998, 15.4.1998. 21.4.1998 lastly on 23.6.1998. The order of ad interim injunction is valid till 18.8.1998 and it should be given effect till it is vacated or modified and defendant cannot be allowed to flout the temporary orders of injunction. The courts should not only frown upon the conduct of parties, who flout the orders of court and should view such violation with condemnation. As such the facts of the present case is clearly distinguishable as the defendants have not only suffered the orders of injunction being extended from time to time but also failed to file their counter affidavit and the defendants have to suffer for the same.
25. For no valid reasons, the defendants have been seeking extension of time to file counter affidavit and the injunction application had not been disposed of, though it is also the duty of the Court to dispose of the application within the period fixed in Rule 3A of Order 39. It is a case, where police aid has been ordered, as the order of injunction has been in force for nearly six months when the order under Revision came to be passed. On facts, the decision of the Kerala High Court is clearly distinguishable.
26. In Coimbatore Pioneer Mills case the order of ad interim injunction was granted on 29.9.1995 and simultaneously or immediately thereof the learned District Munsif by a separate order passed orders in the application for Police aid as hereunder:
"Records perused. Heard. In the interest of justice, Police aid is granted if necessary. Accordingly, petition is allowed."
That was the subject matter of consideration in the Revision before this Court in M/s. Coimbatore Pioneer Mills case.
27. While considering the said order Srinivasan, J. as he then was, held that the order granting Police aid is fully unsustainable and requires to be set aside. Further in the said case, the very order granting interim injunction was also challenged simultaneously and the learned Judge set aside not only the order directing Police Aid but also set aside the order granting interim injunction as unsustainable in law. In the present revision petition, as already pointed out the facts are totally different and distinct. The police protection in the present case has been ordered not simultaneously or immediately bat after a period of six months during which the order of injunction is in force.
28. The Court has powers and the jurisdiction to direct police assistance as has been held by a Division Bench of this Court in Sri-la-Sri Sivasubramanyananda Swami v. Sri-Ia-Sri Arunachalasamy Chidambaram and another, 1993 (1) MLJ 274. As such it cannot be also held that the order passed by the Court below is without jurisdiction. As already pointed out the portion of the order passed by the Court below is extracted above and a perusal of the same would show that no material has been placed before the Court below to show that the orders passed by it is not being obeyed by the other party or that the plaintiffs, who have secured the orders of injunction is not in a position to enjoy the benefits of the order because of the conduct of the other party and police interference is absolutely necessary. Such a view has been taken by Srinivasan, J. in Coimbatore Pioneer Mills Ltd. case.
29. No reason finding has been rendered by the Court below in this respect except stating that the order of injunction is in force and that the defendants have no right to interfere with the possession during the currency of injunction order. The premordial requirement to order police aid is that the Court must satisfy itself that the order of injunction passed by it is not obeyed by the other party and the party who has secured the order is not in a position to enjoy the benefits of the order because of the conduct of the other party and the police interference is an absolute necessity. In the absence of the said three findings the order of the court below cannot be sustained.
30. It has to be pointed out that the Court below had not addressed itself to the above three aspects before passing the orders under Revision. This aspect of the matter has to be gone into and decided by the Court below and sitting in Revision this Court will not be justified in going into these aspects of the matter. Further excepting the affidavit and counter affidavit both the parties have not placed any material before the court below in this regard. The Court has to record a finding on the above three aspects and thereafter only should order police aid or protection to enforce the order of injunction.
31. Though the order of injunction is only ad interim injunction as the same has been in force for nearly 7/8 months and as the defendants have failed to file counter affidavit and move to vacate the stay, it has to be taken that there is an order of injunction. May be it is ad interim injunction, but on that score it cannot be said that the plaintiffs cannot maintain an application for police aid or protection to enforce the order of injunction. While agreeing with the decision of the Kerala High Court, on the facts of this case, this Court is inclined to take the view that the application for police protection is maintainable as the defendant had suffered innumerable orders of extension of ad interim injunction and as such this Court holds that the application for police aid cannot be dismissed as not maintainable.
32. However, as the trial Court has neither addressed itself nor given a finding as already pointed out, to three aspects indicated and hence the order of Court below is set aside and the matter is remitted back to the Court below for fresh disposal.
33. The Court below is directed to consider the application and pass fresh orders according to law. While disposing of the application, the Court below shall consider (i) whether the order of injunction passed is not being obeyed? (ii) whether the plaintiffs who had secured the order of injunction are not in a position to enjoy the benefits of the order? (iii) what is the conduct of the defendant? and (iv) whether a direction to the police for interference or aid the plaintiffs is absolutely necessary?
34. It is needless to add that the Court below shall dispose of the application I.A.No.324 of 1998 within eight weeks from the date of communication of this order.
35. Mr. K. Rajkurnar, learned counsel appearing for the petitioner represented that a direction may be issued to the Court below to enquire and pass final orders in the injunction application. As no counter has been filed and as no application has been taken out to vacate the injunction order, it is made clear, that it is open to the Revision Petitioner to take out an application to vacate the injunction order and seek for advancing the hearing of the injunction application by taking out appropriate application. If such applications are taken out, the Court below shall take up the applications and pass final orders in the injunction application without further delay.
36. The Revision is allowed in the above terms and there will be an order in the Revision Petition in the above terms. No Costs.