Citation: AIR1999Ker383, ILR1999(3)Kerala455, 1999(2)KLJ208
IN THE HIGH COURT OF KERALA
Decided On: 22.07.1999
Appellants: Adhikarath Valappil Kunhumuhammed alias Kunhippa and Ors.
Vs.
Respondent: Korath Illath Valappil Mammi alias Bava Haji and Ors.
Vs.
Respondent: Korath Illath Valappil Mammi alias Bava Haji and Ors.
Hon'ble Judges/Coram:
A.R. Lakshmanan, Actg. C.J. and S. Sankarasubban, J.
The Appellants are Respondents 12, 13 and 14, in the Original Petition. The Original petition was filed by Respondents 1 to 3 for a direction to the police to grant adequate police protection to enjoy their properties without any obstruction from Respondent 4 to 14. It was alleged in the Original Petition that police refused to give police protection in spite of an order of ex parte injunction against the Respondents 4 to 14 and that they failed to discharge their statutory duties. When the Original Petition came up for orders the learned Judge without ordering notice to the Respondents straight away ordered police protection "if there is violation of the injunction order". The order is challenged in appeal. It was contended for the Appellants that taking advantage of the injunction order, the Petitioners in the Original Petition are proceeding further with the construction unauthorisedly and that the Appellants have entered appearance before the court below and contested the matter that the Petitioners have no title or possession of the property. Allowing the appeal;
Held: The basis for seeking police protection from this Court is the ex parte ad interim injunction order passed by the Munsiff. The facts would disclose that the Respondents 1 to 3 have obtained an order in the Original Petition disclosing the entire facts and circumstance. This Court shall not interfere in matters involving civil rights with an order of police protection on the basis of an ad interim ex parte order of the civil court and that only a final order passed under Rule 1 or Rule 2 of Order 39 of the Code of Civil Procedure can be enforced with the assistance of the police. We, therefore, hold that the Judgment of the learned Single Judge ordering police protection in case of violation of the ex parte injunction order is not in order and by the impugned Judgment police authorities are given the right to decide whether there is a violation of the injunction order passed by the Civil Court. We also feel that courts shall be reluctant to grant police protection on the basis of ex parte injunction orders, which would only pave the way for further litigation between parties, since the parties, on the basis of the police protection order and with the connivance of the police, complete constructions or commit waste or do other acts which they would not be able to do even after final orders are passed by the Civil Court.
1. Heard Mr. T. Krishnan Unni for the appellant, Mr. Chandrasekhar for the contesting respondents and the Government Pleader for the other respondents. This writ appeal is directed against the judgment of the learned single Judge in O.P. No. 11968 of 1999 dated 2-6-1999. The appellants are respondent Nos. 12, 13 and 14 in the original petition.' The petitioners in the original petition, who are respondents 1 to 3 herein, filed the writ petition to direct respondents 1 and 2 in the original petition to grant the petitioners adequate police protection to enjoy their properties mentioned in Ext. P2 injunction order without any obstruction or interference by respondents 4 to 14.
2. It is submitted by counsel for respondents 1 to 3/petitioners in the original petition that the refusal by the police to render assistance to enjoy their property is illegal when a Civil Court has passed orders in their favour and that the police has a duly to grant protection to them to enforce the injunction order against the appellants herein and that the appellants have no right to take law in their hands and resort to violence and commit criminal offence. In support of his above submission, Mr. Chandrasekhar relied on an earlier judgment of this Court in O.P. No. 2804 of 1999 wherein the appellants submitted that they had no intention to violate the order of injunction.
3. The learned Judge, without ordering notice to the appellants herein, straightway ordered police protection if there is violation of the injunction order. It is now represented by Mr. Krishnan Unni, learned counsel for the appellants that the judgment was rendered without hearing the appellants and that taking advantage of the injunction order, respondents 1 to 3 are proceeding further with construction unauthorisedly.
4. It is also submitted that the appellants have entered appearance before the Court below and contested the matter that the petitioners in the Original Petition have no title to or possession of the properties in dispute and that the suit has been filed raising a false claim and that the alleged title deeds will not take in the disputed property. It is also submitted that in the plaint the North-South and East-West measurements of properties are not shown and, instead, the petitioners have given only the total extent of the properties in the Schedule. In fact, a petition for issuance of commission for identifying the properties has also been filed and a Commissioner has also been appointed, who wanted the assistance of surveyor for identifying the properties. It is in the meanwhile that respondents 1 to 3 herein filed the present Original Petition seeking the relief of police protection. Taking advantage of the judgment in the original petition, respondents 1 to 3 herein have constructed a small house and compound wall and dug a well. It is also alleged that because of the impugned judgment, the appellants have now been dispossessed of the properties in their possession for so many years.
5. It is submitted by the appellants that the police have misinterpreted the scope of the impugned judgment and with their assistance and protection respondents 1 to 3 have dispossessed the appellants.
6. It is thus clear that the injunction order now produced along with the original petition is an ad interim order, that the contesting respondents/appellants herein have filed counter-affidavit in that matter and that the trial Court has already appointed a Commissioner to identify the properties and to file a plan and report.
7. The basis for seeking police protection from this Court is the ex parte ad interim injunction order passed by the Munsiff. The facts referred to above would disclose that the respondents 1 to 3 have obtained an order in the original petition without disclosing the entire facts and circumstances. Learned counsel for the appellants cited two decisions of this Court reported in Geroge Mirante v. State of Kerala 1990 (2) KLT 89 (by Viswanatha Iyer, J.) and Kochupennu Ambujakshi v. Veluthakunju Vasu Channar MANU/KE/0014/1993 : AIR 1993 Ker 62 (by Balanarayana Marar, J.). We have perused the above judgments cited before us. When there is dispute between parties and when it is only an interim ex parte order passed by the Munsiff which alone is in force, this Court shall not interfere in the matter invoking its jurisdiction under Article 226 of the Constitution of India with a direction for police aid.
8. One of us, (Sankarasubban, J.) sitting single, in the decision reported in Abdul Rahim v. Nazarullah (MANU/KE/0445/1999 : 1998 (2) Ker LJ 643 :AIR 1999 Ker 3) has held that the Court can direct the police to give necessary aid if it is just or to prevent abuse of process of Court or if it is absolutely necessary. It is useful to reproduce paragraph 5 of the said judgment (at page 4 of AIR):
"Court can direct the police to give necessary help in case it is found that it is just or in order to prevent an abuse of process of Court or when it is found absolutely necessary. The very foundation of the jurisdiction of the Court to requisition police aid in order to discharge its function of giving effect to its decision being its inherent powers to which it can have resort only for the purpose of meeting ends of justice and to prevent abuse of process of Court, the Court can exercise this power only when it is 'absolutely necessary,' and, no party has a right to insist the Court to exercise it. In order to do justice or to prevent abuse of process of 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 the Court or the exercise of the rights created under orders of Court. The inherent powers of a Court are in addition to and complementary to the powers expressly conferred upon it by other provisions of the Code of Civil Procedure and they are not intended to enable a Court to create rights in the parties, but they are meant to enable the Court to pass such orders for the ends of justice as may be necessary."
9. We are of the view that this Court shall not interfere in matters involving civil rights with an order of police protection on the basis of an ad interim ex parte order of the Civil Court and that only a final order passed under Rule 1 or Rule 2 of Order 39 of the Code of Civil Procedure can be enforced with the assistance of the police. We, therefore, hold that the judgment of the learned single Judge ordering police protection in case of violation of the ex parte injunction order is not in order and by the impugned judgment police authorities are given the right to decide whether there is a violation of the injunction order passed by the Civil Court. We also feel that Courts should be reluctant to grant police protection on the basis of ex parte injunction orders, which would only pave the way for further litigation between parties, since the parties, on the basis of the police protection order and with the connivance of the police, complete constructions or commit waste or do other acts which they would not be able to do even after final orders are passed by the Civil Court. This Court has come across many such instances earlier.
10. It is argued on behalf of respondents 1 to 3 petitioners in the original petition that the appellants are taking frequent adjournments and are not co-operating for the disposal of the injunction application finally. It is stated by counsel for the appellants that they have already filed counter-affidavit to the injunction application and, therefore, the injunction application can be disposed of by the Munsiff's Court at any time. We, feel that the injunction application should be heard and disposed of on merits and we direct the learned Munsiff, Tirur to take up I. A. No. 104 of 1999 and dispose of the same, taking note of the facts mentioned in this judgment and after affording sufficient opportunity to both the parties, within two weeks from the date of communication of this judgment. Respondents 1 to 3 are directed not to proceed with any further construction till the injunction application is finally disposed of by the Court below. The appellants also shall obey the ex parte order of injunction, which is now in force. The writ appeal is allowed and the impugned judgment of the learned single Judge granting police protection on the basis of ex parte interim injunction order is set aside. However, there will be no order as to costs.
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