Himachal Pradesh High Court
Jagdev Singh And Another vs Subhash Chand And Another on 6 August, 2015
Author: Rajiv Sharma
Bench: Rajiv Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
CMPMO No. 265 of 2015 .
Reserved on: 4.8.2015 Decided on: 6.8.2015 ______________________________________________________ Jagdev Singh and another. ...Petitioners.
Versus Subhash Chand and another. ...Respondents.
of __________________________________________________________________ Coram:
Hon'ble Mr. Justice Rajiv Sharma, Judge.
rt Whether approved for reporting?1 Yes For the Petitioners : Mr. Ajay Sharma, Advocate.
For the Respondents : Rajnish K. Lal, Advocate ____________________________________________________________ Justice Rajiv Sharma, Judge.
This petition is instituted against the order dated 1.5.2015 passed by the Civil Judge (Junior Division), Dehra, District Kangra in CMA No. 187/2015 in Civil Suit No. 75/2012.
2. "Key facts" necessary for the adjudication of this appeal are that petitioners-plaintiffs (herein after referred to as the 'plaintiffs' for convenience sake) have filed a suit for permanent prohibitory injunction thereby seeking restraint 1 Whether reporters of the local papers may be allowed to see the judgment? Yes ::: Downloaded on - 15/04/2017 18:42:44 :::HCHP 2 orders against the respondents-defendants (hereinafter referred to as the defendants" for convenience sake) from .
changing nature of the suit land in any manner whatsoever and from removing/felling trees from the suit land till the partition and in the alternative mandatory injunction seeking direction to the defendants to restore the original position by of demolition of any structure raised. Alongwith the suit, plaintiffs have also moved an application under order 39 rule
3. rt 1 and 2 of the Code of Civil Procedure for interim injunction.
Learned Civil Judge (Junior Division), Dehra vide order dated 9.4.2015 directed the defendants to show cause why the application be not allowed and in the meanwhile the parties were directed to maintain status quo qua raising any construction, cutting, felling or removing the trees and changing the nature of the suit land till further orders. Civil Judge (Senior Division) also appointed Local Commissioner vide order dated 20.4.2015. The report submitted by the Local Commissioner is dated 21.4.2015 (Annexure P-2).
However, fact of the matter is that though the defendants put in appearance on 18.4.2015 but have resumed the construction work on 19.4.2015. It is in these circumstances ::: Downloaded on - 15/04/2017 18:42:44 :::HCHP 3 plaintiffs moved an application under section 151 of the Code of Civil Procedure seeking police assistance.
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4. The application was contested by the defendants.
Trial court dismissed the application on 1.5.2015 on the ground that the relief of police assistance was not available even in the event of success of the application under order 39 of rule 2-A of the Code of Civil Procedure.
5. The orders passed by the Courts must be rt complied with in letter and spirit in order to maintain rule of law. The trial Court can not show helplessness in getting its orders executed. The Court has immense power to undo the wrong in the course of administration of justice.
6. 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).
7. The learned Single Judge in AIR 1956 Patna 455 titled as The State of Bihar Vs. Usha Devi and another ::: Downloaded on - 15/04/2017 18:42:44 :::HCHP 4 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 party, it is open to the Court under inherent jurisdiction to bring back the party to a of position where it originally stood as if the order passed by the Court has not been contravened. The learned Single rt 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 ::: Downloaded on - 15/04/2017 18:42:44 :::HCHP 5 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 order of interim injunction was passed against the State of Bihar restraining them from dismantling it of 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 rt 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 ::: Downloaded on - 15/04/2017 18:42:44 :::HCHP 6 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 by the learned Munsif has been finally confirmed by the Court of appeal, and on the face of that order it is not open of 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 rt 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 ::: Downloaded on - 15/04/2017 18:42:44 :::HCHP 7 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 take advantage of his own wrong in spite of the order to the contrary passed by the Court."
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8. In AIR 1971 Andhra Pradesh 53 titled as Rayapati Audemma Vs. Pothineni Narasimham, the Division rt 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 ::: Downloaded on - 15/04/2017 18:42:44 :::HCHP 8 under Section 151, Civil P. C. in order to do justice or to prevent abuse of the process of court. But 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 of 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 rt 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.
9. 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:
::: Downloaded on - 15/04/2017 18:42:44 :::HCHP 9"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 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 of reproduced:
"The observations in the aforesaid decision no doubt support the contention of the learned counsel for rt 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 ::: Downloaded on - 15/04/2017 18:42:44 :::HCHP 10 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 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 of 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 rt 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.
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."::: Downloaded on - 15/04/2017 18:42:44 :::HCHP 11
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 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 of 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 rt 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 ::: Downloaded on - 15/04/2017 18:42:44 :::HCHP 12 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."
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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 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 of should proceed and act in accordance with the directions indicated in the aforesaid judgment."
10. rt In P. Shanker Rao vs. Smt. B. Susheela, AIR 2000 Andhra Pradesh 214, learned Single Judge of Andhra Pradesh has held that the court in its inherent powers under section 151 of the Code of Civil Procedure can grant police aid to ensure effective implementation of temporary injunction pending suit for perpetual injunction and procedure under order 39 rule 2-A of the Code of Civil Procedure need not be followed. Learned Single Judge has held as under:
"[3] The observations, in my considered view should be confined to the facts of that particular case. In that case, the defendant sought police protection on the ground that the plaintiff was interfering with his possession despite the fact that the temporary injunction granted earlier in favour of the plaintiff was vacated. Thus, it is not a case where the order to extend police aid was granted in order to ensure compliance ::: Downloaded on - 15/04/2017 18:42:44 :::HCHP 13 with an order of injunction in force pending the suit. The mere fact that the action could be taken against either party for flouting the injunction under Order XXXIX Rule 2-A or under .
the Contempt of Courts Act does not come in the way of the Court taking all necessary steps for ensuring obedience of the injunction order. The Court need not wait till the injunction is breached. In a fit case, the Court can undoubtedly direct police aid as a preventive measure. This power though not expressly conferred, is a power incidental or ancillary to the of exercise of the power to grant injunction pending the suit. With great respect, I am not in a position to record my concurrence with the broad observations made by the learned rt Judge that the civil Court cannot direct police aid for execution of its order - interlocutory or final and that the party should only have recourse to the procedure laid down under Order XXI, Rule 32 or the Contempt of Courts Act. The observations are in the nature of obiter and therefore not binding on me. It is therefore unnecessary to refer the matter to the Division Bench, more so in view of the decision of this Court relied upon by the trial Court. I would however like to point out that the police aid should not be granted for mere asking. The Court has to be satisfied, prima facie, that there is an imminent threat of violation of interim order, if police does not intervene and that there is no other way of ensuring effective compliance. If however an alternative could be found such as, deploying an Officer of the Court to oversee the implementation of the order, the Court can avoid granting order for police aid.
11. In N. Karpagam and others vs. P. Deivanaiammal alias Deivathal alais Deivathayee ::: Downloaded on - 15/04/2017 18:42:44 :::HCHP 14 Ammal, AIR 2003 Madras 219, learned Single Judge of Madras High Court has held that civil court has power to .
issue suitable directions to police for implementation of injunction order. Learned Single Judge has held as under:
"[7] In the light of the Division Bench decision holding that Civil Court has power to issue suitable directions to police to implement the orders, and in the light of the fact that of injunction was in force from 26-3-2002 and the same was made absolute on 29-11-2002 and in view of the apprehension raised by the petitioner/respondent herein, I rt am satisfied that the learned Subordinate Judge was perfectly right in ordering police aid. In the light of the said factual details, the petitioners cannot have any valid defence to oppose the said application. I do not find any error or infirmity in the order impugned; consequently, the Civil Revision Petition fails and the same is dismissed. No costs. Consequently, connected miscellaneous petitions are closed."
12. In Sk. Yousuf and others vs. Shaik Madhar Saheb, AIR 2003 Andhra Pradesh 44, learned Single Judge has held that it is always open to the parties to seek police protection to see that interim injunction order is properly implemented. Learned Single Judge has further held that it cannot be said that court is not competent to provide police protection in exercise of inherent powers. Learned Single Judge has held as under:
::: Downloaded on - 15/04/2017 18:42:44 :::HCHP 15"[4] It is true that Order 39, Rule 2A of the Code deals with consequences of disobedience or breach of injunction. But, it does not mean that the Court below is not competent to .
provide police protection in exercise of its inherent powers under Section 151 of the Code. When once an injunction order is not carried out it is always open for the parties to seek police protection to see that the said order is properly implemented. Therefore, I do not find any error in the order of the learned Principal Junior Civil Judge."
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13. In Satnam Singh vs. Dr. Triloki Nath Chugh and others, AIR 2004 Punjab and Haryana 373, learned rt Single Judge of Punjab and Haryana has held that specific remedy available under section 145 Cr.P.C. does not exclude inherent jurisdiction of civil court to get its injunction order implemented. Learned Single Judge has held as under:
"[3] After hearing the learned counsel, I am of the considered view that this petition is without merit and is, thus, liable to be dismissed. It is well settled that under Section 145 Cr.P.C., preventive measures in respect of disputes concerning possession of immovable property could be undertaken in the absence of any direction by the civil Court. Once the civil Court has passed an interim order of injunction restraining interference in peaceful possession of plaintiff-respondent 1, then no proceedings under Section 145 Cr.P.C. would be competent as has been held by the Supreme Court in the case ::: Downloaded on - 15/04/2017 18:42:44 :::HCHP 16 of Ram Sumer Puri Maharit v. State of U.P., (1985) 1 SCC 427 : (AIR 1985 SC 472). .....By no stretch of imagination it could .
be argued that the so called specific remedy available under Section 145 Cr.P.C. would exclude the inherent jurisdiction of the civil Court to get its order dated 1-12-2003 implemented.
Moreover, no dispute can be raised with regard to order dated 1-12-2003 which has attained finality. ..... at this stage, of because it would result into modifying/displacing the aforementioned order which is impermissible. The general rt principle of law as submitted by the learned counsel that specific provision will exclude the general provision would not be available and the argument is absolutely misplaced.
Therefore, there is no merit in the instant petition and the same is liable to be dismissed."
14. In Smt. Nirabai J. Patil vs. Narayan D. Patil and others, AIR 2004 Bombay 225, learned Single Judge of Bombay High Court has held that in case of grave emergency, police aid though an extreme step can be granted by Court in exercise of powers under section 151 of the Code of Civil Procedure. Learned Single Judge has held as under:
"[7] The aforesaid observations made by the learned single Judge of this Court are very relevant for the present case. If Civil court which has passed the order of temporary injunction takes a view that there is no power vested in the court to ::: Downloaded on - 15/04/2017 18:42:44 :::HCHP 17 direct the police to grant assistance for enforcing or for implementation of the order of temporary injunction, the very purpose of granting order of temporary injunction may be .
frustrated in a given case. It is the duty of every police Officer to enforce the law of the land. The duties of Police Officers are reflected in section 64 and Section 66 of the Bombay police Act, 1951. In my opinion, the view taken by the learned trial Judge that there is no provision for police aid for execution of interim order, is totally incorrect. The learned Judge failed to of appreciate that he has a power under Section 151 of the said code to pass the order directing that police help should be made available provided facts of the case warrant passing of rt such order."
15. Accordingly order dated 1.5.2015 is set aside. The Superintendent of Police, Kangra at Dharamshala is directed to render police assistance to the plaintiffs towards execution of order dated 9.4.2015 rendered by the Civil Judge (Junior Division), Dehra, District Kangra in CMA No. 121 of 2015 in Civil Suit No. 75/2012, within a period of one week from today.
16. In view of this, the present petition is disposed of, so also the pending applications, if any. No costs.
(Justice Rajiv Sharma), Judge.
6.8.2015 *awasthi* ::: Downloaded on - 15/04/2017 18:42:44 :::HCHP