Kerala High Court
Kochupennu Ambujakshi And Ors. vs Veluthakunju Vasu Channar And Ors. on 1 September, 1992
Equivalent citations: AIR1993KER62, AIR 1993 KERALA 62, 1993 (1) LJR 213, 1992 (2) KER LJ 606, (1992) 2 KER LJ 605, (1993) CIVILCOURTC 313
ORDER K.P. Balanaraana Marar, J.
1. Can a direction be given to the police to assist a person to enjoy possession of his property ? What are the circumstances in which the extraordinary remedy under Article 226 of the Constitution can be invoked in order to protect the life and property of a person? Should policemen be entrusted with a duty to decide rights of possession, easement rights and other civil rights ? These questions loom large in this O.P, seeking police protection. The matter has to be looked at in some detail since quite a large number of original petitions are filed seeking similar reliefs.
2. Petitioners together own and possess two plots of land admeasuring 1 acre and 41.5 cents lying contiguous. Respondents 1 to 4 are their neighbours. When they attempted to cut open a new pathway through the property of petitioners, a suit was filed as O.S. 158/1989 before the Munsiffs Court, Haripad and obtained a decree for permanent injunction. Even thereafter respondents 1 to 4 with the help of their associates are alleged to have made attempts to trespass into the property. Some trees are alleged to have been cut down by them and damage caused to the latrine situated in the compound. Complaints were given to respondents 5 to 7 and the Dy. Superintendent of Police, Kayamkulam. Applications were filed before the Munsiffs Court for taking action against defendants 1 to 4 for disobeying the decree. An advocate commissioner was appointed to assess the damages. Still respondents 1 to 4 continued their activities and demolished the fence. In spite of the complaints respondents 5 to 7 did not afford any protection to petitioners. Hence this O.P. seeking a writ of mandamus directing respondents 5 to 7 to give adequate police protection to the life and properties of petitioners and for the peaceful enjoyment of the property in accordance with the decree for permanent injunction.
3. In the counter-affidavit filed by the 3rd respondent on behalf of respondents 1 to 4 it is stated that they not in any manner violated the decree, nor had they trespassed into the property or laid any road or pathway across the property. They had not committed any act of waste. It is further contended that petitioners have availed of the effective alternate remedy by moving the Civil Court and that the O.P. is not sustainable.
4. Heard counsel for petitioner and respondents I to 4 and Government Pleader.
5. As early as 1979 this Court had occasion to consider the scope and ambit of a writ petition for police protection is the decision in Thomas v. Supt. of Police, 1980 KLT 151. This Court held that questions of possession, right to enjoy property or easements without obstruction, nuisances and similar other matters are best adjudged by a Civil Court and that these are not matters for the police to sit in judgment upon. It is observed that resort to this Court seeking police assistance in such matters would be ill-advised. To recognise policemen as competent to decide such disputes would be giving them powers which are capable of abuse. It is further observed that if there is a genine dispute between the parties, that has to be resolved by the Civil Courts. This Court was of the view that though this Court is not without power to issue directions in an appropriate case of inaction by the police in such matters, the resort to this Court as a matter of course would be unjustified.
6. There observations were quoted with approval in a recent decision of this Court in Georce Mirante v. State of Kerala, 1990 (2) KLT 89. In paragraph 5 of the judgment it was held:
"In matters involving civil rights, or disputes regarding title and possession over property, it is not proper for this Court to interfere under Article 226 of the Constitution with an order for police protection. Police cannot be made the adjudicators such disputes inter se between the parties, either regarding possession of property or regarding boundaries or regarding easements or the like. These are matters essentially within the domain of the Civil Courts on which the parties should approach those Courts and seek redress. Police does not have the right to decide on such disputes, nor is it proper or competent for them to do so. They do not also have the machinery for the purpose. It is outside the limits of the duties which are cast on them, which is to prevent breach of peace or commission of cognisable offences, and to preserve law and order. It will be totally against the rule of law if the right of the police is to be used in favour of one party against another without an adjudication by any appropriate authority of the rights of either side. In all such cases, the proper remedy, for a party feeling aggrieved, is to approach the Civil Court for the establishment of his rights, and seek appropriate injunctive reliefs against the offending party, and if any such orders are attempted to be violated to seek their enforcement by the Civil Court itself."
7. The law is therefore settled that in case of disputes regarding title and possession over property, the proper remedy is to approach the Civil Court and seek appropriate reliefs against the offending party. That does not mean that this Court is powerless to issue directions to the police authorities in appropriate cases either to enforce the order of the Court or to protect the righs of parties. Ordinarily the aggrieved persons should resort to a civil action. As observed by the Division Bench in George v. Circle Inspector of Police, 1990 (1) KLT 741: (AIR 1990 Ker 298) it is open to the parties to invoke the extra-ordinary jurisdiction of this Court under Article 226 of the Constitution if the aggrieved parties have a case that such ordinary civil or criminal action is not an efficacious alternative remedy. The only limitation imposed by the Division Bench is that before invoking such extraordinary jurisdiction duty is cast upon the petitioners to plead and prove prima facie as to Why alternate remedies are not equally efficacious and adequate in the facts and circumstances of a given case. It is observed that petitioners are bound to state in detail the nature of the alternative remedies available to them in civil and criminal law and and as to why they are not equally efficacious alternative and adequate remedies.
8. When there is threat to possession of any property the remedy available to the party is to approach a Civil Court and get a decree for injunction restraining the opposite party from interfering with his possession. The opposite party has to obey the decree and in case he fails to obey it, the decreeholder can get the decree enforced by moving the Court by means of a petition under Rule 32 of Order 21 C.P.C. That rule inter alia provides that when the party against whom a decree for injunction has been passed has had an opportunity of obeying the decree and has wilfully failed to obey it, the decree may be enforced by his detention in civil prison or by attachment of his property or by both. By the decree granting permanent injunction Ithe Court only determines the status of petitioner as the person in possession and restrains defendant from interfering with such possession. The question of executing such a decree does not arise. What is required is enforece-ment of the decree in case it is disobeyed by the defendant. Article 136 of the Indian Limitation Act prescribes the period of limitation for execution of any decree other than a decree granting a mandatory injunction or order of any Civil Court. That Article contains a proviso that an application for enforcement or execution of a decree granting a perpetual injunction shall not be subject to any period of limitation. Rule 32 of Order 21 enables the plaintiff-decreeholder to get the decree enforced in case of disobedience by the defendant. It would thus appear that a decree for permanent injunction has to be enforced, but not executed. The execution of the decree contemplated in Rule 33 of Order 21 is really in the nature of enforcement of the decree by detention of the defendant in civil prison or by attachment of his property or by both. The purpose of such detention is for enforcement of the decree for injunction, the Court having a duty to see that its decree or order is obeyed. an aggrieved party can therefore move the Court which passed the decree under the above mentioned rule to get the decree obeyed in the manner prescribed therein. By such modes the plaintiff-decree holder will be in a position to enjoy possesion of the property in respect of which the decree was granted in his favour.
9. Rule 32 of Order 21 speaks about a decree for injunction and does not apply to an order of injunction granted under Rule 1 of Order 39. That rule enables the Court to grant a temporary injunction. The consequence of disobedience or breach of such an order is provided in Rule 2-A of Order 39 introduced by the amendment of 1976 by incorporating the old Sub-rules (3) and (4) of Rule 2 with modifications. In case of disobedience of an order granted under Rule 1 or Rule 2 of Order 39 or if there is any breach of any of the terms in which the injunction was granted, the Court which granted 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. This rule is of a penal character and the person found guilty of the breach of the order is liable to imprisonment also.
10. Before granting the order of injunction the Court has to issue notice to the opposite party. But it is open to the Court to grant an injunction without giving notice if the Court is of the opinion that the object of granting the injunction would be defeated by the delay. In such a case the applicant has to be required to comply with the conditions prescribed in the proviso to Rule 3 of Order 39 and the Court has to make an endeavour to finally dispose of the application within 30 days from the date on which the injunction was granted. Till a final disposal of the application is made after hearing the opposite party, the order is only an ad interim ex parte order. The grant of injunction without notice is a deviation from the ordinary course of justice and the proviso to Rule 3 of Order 39 stipulates the circumstances in which such an order can be granted and the requirements to be met by the petitioner. Though an ad interim order has also to be obeyed by the opposite party, the Court had no occasion before granting such order to advert to the case of the defendant and the documentary evidence which he is able to produce in support of his contentions. The final order contemplated in Rule 3A is passed only after giving notice to the opposite party and hearing both sides. The disobedience of any injunction for which the penalty is provided in Rule 2-A relates to the grant of a final order either under Rule 1 or under Rule 2 of Order 39 C.P.C.
11. Rule 32 of Order 21 and Rule 2-A of Order 39 enable a party to get the decree or order enforced either by attaching the properties of the judgment debtor or by detaining him in prison. The disobedience of the decree or order or obstruction caused to the enjoyment can thus be removed. But can such an decree or order be enforced with the assistance of the police authorities? There is no provision in the Code of Civil Procedure empowering the Court to grant police aid to enforce a decree or order. But the Court has every authority to see that its fiat runs. It is the duty of the Court to enforce its decrees and orders and see that the decree-holder gets the fruits of the decree or order. In the case of a decree for prohibitory injunction or an order granting temporary injunction, the same can be enforced by keeping away the obstructor or the person who disobeys the decree or order. Under such circumstances the Court should exercise its inherent power under Section 151 of the Code and direct the police authorities to render assistance to the aggrieved party in order to see that the Court's order is implemented.
12. As early as 1971 a Division Bench of the Andhra Pradesh High Court had occasion to consider this aspect in the decision reported in AIR 1971 AP 53 Rayapati Audemma y. Narasimham. It is observed that Order 39, Rule 2(3) (as it stood then) 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 provision in the Code for enforcement of the order, it is not only proper, but also necessary that the Court should render all aid to the aggrieved party to derive the full benefits of the order. It is observed that 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 of the Court. The exercise of the power under Section 151 was held to be necessary for the ends of justice or to prevent abuse of the process and the Civil Court has ample jurisdiction to pass such orders under Section 151 C.P.C. It was also held that the police authorities are bound to obey the directions issued by the Court. A later Division Bench agreed with these views in f. In that decision the Court further considered whether Article 226 of the Constitution can be invoked for enforcement of any order or direction of the Court. It was held that the phrase "any other purpose" in Article 226 means "the enforcement of any legal right and the parformance of any legal duty". A 'legal right' means any legally enforceable right. H was observed that the power of the High Court under Article 226 of the Constitution to enforce its own orders or the orders of the Civil Court cannot be curtailed. The Division Bench held that the power which a Civil Court has under Section 151 C.P.C., the High Court has in much larger measure under Article 226 of the Constitution. The complaint in that case was that police was not rendering assistance in spite of a direction by the Civil Court to render police help to protect possession of the appellant therein. That was required for enforcement of a temporary injunction order. The Division Bench held that the High Court has emple jurisdiction to issue a writ or direction to all the authorities including the police within the State to enforce the orders of the Civil Court as confirmed by the High Court in a civil revision petition and maintain the rule of law. The police authorities arc bound to give all assistance to enfoce the orders of the Court and see that the orders are implemented.
13 The extraordinary jurisdiction under Article 226 of the Constitution can therefore be invoked by an aggrieved party in appropriate cases. But the question arises whether the party can move the High Court without availing of the efficacious alternative remedy of moving the Court which passed the decree or order in the first instance. I am of the view that the party has first to move the Court which passed the decree or order for getting the decree or order enforced with the assistance of the police. Such enforcement has to be made through the officers of that Court. The assistance of the police can be requisitioned only to help the officers of the Court to enforce the decree or order. I do not agree with the observation in Audemma's case (supra) that the aggrieved party could approach the police authorities to prevent obstruction to the enforcement of the decree or order. The reason is that the police officers cannot be entrusted with the duty of identifying the property or determining the right of easement or other civil rights. On the other hand, the officers deputed by the Court to enforce the order will be armed with the decree or order which contains the details of the properties in respect of which the decree or order was granted. The Court has its own machinery to execute the decrees or orders. The same can be done only through that machinery. When a decree cannot be executed by a request to the police authorities, it cannot also be enforced in that manner. In other words, the decree or order can be executed or enforced only through the officers of the Court in the manner known to law and for such execution or enforcement, the Court can always request for the assistance of the police. When once such a request in made, it is the duty of the police to obey all directions issued by the Court in order to see that the decree or order of Court is executed, obeyed and enforced.
14. As observed by this Court in Thomas' case (supra) this Court is not powerless to issue directions in appropriate cases of inaction by the police. In such cases resort can be had to the extra-ordinary jurisdiction under Article 226 of the Constitution. In case assistance of the police authorities is not obtained due to their inaction or refusal, an aggrieved party is entitled to seek direction, under Article 226 of the Constitution for 'discharge of such duties by the police authorities. Ordinarily, therefore, the Civil Courts" have to give appropriate directions under Section 151 C.P.C. to render aid to the aggrieved parties for the proper implementation of the orders of the Court. In view of that efficacious alternate remedy available to an aggrieved party, the jurisdiction under Article 226 can be exercised only on the failure of the party in getting such assistance of the police in pursuance to the order of the Civil Court.
15. 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 clear that such an order is only an ex parte order 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 lyer, 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 proceedigns. 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 Rule 1 or Rule 2 of Order 39 can be enforced with the assistance of the police.
16. A direction is also sought to afford protection for the person of petitioners. A representation was made to the District Superintendent of Police with copies to the Circle Inspector and the Sub-Inspector. No action is alleged to have been taken on those complaints. Under Section 154 of the Criminal Procedure Code the officer in charge of a police station is bound to take immediate steps when information is given relating to the commission of cognisable offence. In case information is given to an officer in charge of the police station of the commission of a non-cognisable offence, he has to enter the substance of the information in the book kept by such officer and refer the informant to the Magistrate. The duties cast upon the police officer to record the first information report under Section 154 of the Code and to enter the substance of the information under Section 155 are not discretionary, but imperative There should also be no delay on the part of the officer in charge of the police station in recording the first information or entering the substance of the information, as the case may be. A Special Bench of the Calcutta High Court in Jay Engineering Works Ltd. v. State of. West Bengal, AIR 1968 Calcutta 407 observed that the duty of the police is not only to promptly answer to a complaint alleging commission of an offence; it is their duty to prevent the commission of crimes. When they fail to do so, they may render themselves liable to certain penal provisions contained in the Code.
17. The duties of the police officers are enumerated in Section 29 of the Kerala Police Act. Among other duties it shall be the duty of every police officer (1) to preserve the peace and collect and communicate intelligence affecting or likely to affect the public peace. (2) to prevent to the best of his ability the commission of public nuisance, and (3) to apprehend all persons whom he is legally authorised to apprehend and for whose apprehension sufficient ground exists. Police have the widest possible discretion in their choice of methods to discharge their duties enumerated in Section 29 of the Kerala Police Act. But those methods should be in accordance with the provisions contained in the Code of Criminal Procedure. Keeping of peace and enforcement of law is one of the primary duties of a police officer. That is why the duties of a police officer under the Police Act includes the duty to prevent commission of crimes and apprehend criminals. This is necessary, in order to preserve the peace. The extraordinary jurisdiction under Article 226 can therefore be invoked by a party when the police authorities fail to do the duties enjoined on them by law or when there is a law and order problem arid a likelihood of breach of the peace.
18. Coming to the facts of the case petitoners seek police protection for enforcement of the judgment Ext.P1. An application has already been filed before the Munsiffs Court under Rule 32 of Order 21. An advocate commissioner was appointed to assess the damages caused by respondents 1 to 4. Petitioners, having availed of a remedy available to them under the Code of Civil Procedure, cannot invoke the extraordinary jurisdiction of this Court under Article 226. The decree being one for a permanent injunction, it can be enforced only in accordance with the provisions contained in Rule 32 of Order 21. But putting the judgment-debtor in jail and attaching his properties may not be a succour to petitioners so long as he is not in a position to enjoy his property peaceably without interference or obstruction. For such enjoyment the decree of permanent injunction can be enforced by the decree-holder through the officers of the Court. Such enforcement can be done by removing any person who causes obstruction. This is one of the modes of enforcement of a decree under Rule 32 of Order 21, C.P.C. It is here that the assistance of the police is required. In case the decree holder apprehends breach of the peace, the Court has to requisition the assistance of the police in order to see that the decree holder gets the fruits of the decree, in the present case peaceful possession of the property on the basis of the decree. Petitioners may therefore seek appropriate reliefs from the Court which passed the decree.
19. 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 and the order for temporary 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.
20. Petitioners have a further grievance that no action was taken on Exts. P2 to P2(b) petitions presented to the police authorities. Those complaints were presented as early as 8-10-1991, Within a few days therefrom petitioners have moved this Court by this O.P. In view of that grievance it is only proper to direct respondents 5 to 7 to make proper enquiries on those complaints and take suitable action thereafter. I do so.
For the aforesaid reasons the O.P. is dismissed subject to the observations contained above.