1989 (1) OLR-398 ( Para-7 )

Very clever question indeed.

Andhra High Court

THE HON'BLE SRI JUSTICE P.S.NARAYANA 
Civil Revision Petition No.4737 of 2008

25-02-2009

Ganuboina Venkateswara Rao

s/o.Ganga Raju

Pakalapati Basavaiah s/o.Ramaiah

and 2 others

Counsel for petitioner : Sri Sitaram Chaparla

Counsel for respondents : Sri S.Subba Reddy

:ORDER:

        Heard Sri Sitaram Chaparla, the learned Counsel representing the
Revision Petitioner and Sri S.Subba Reddy, the learned Counsel representing the
1st respondent.

2. This Court on 31-11-2008 ordered notice before admission and granted interim
suspension for a period of four weeks in C.M.P.No.6280 of 2008.

3. Sri Sitaram Chaparla, the learned Counsel representing the Revision
Petitioner had taken this Court through the order under challenge in the present
Civil Revision Petition and would maintain that this order was made by the
learned Principal Junior Civil Judge, Tadepalligudem, without application of
mind and this being a cryptic order and the same is liable to be set aside on
this ground alone. The Counsel also would maintain that the learned Judge failed
to consider that there is no existing thorny bush fencing to the north of the
plaint schedule property and the same was removed by the 1st respondent's son by
name Venkateswara Rao on 20-10-2007 highhandedly with the help of his henchmen
and the said fact was mentioned in the counter of the petitioner filed in
injunction petition I.A.No.2451/2007. The Counsel also would maintain that in
fact the petitioner had given police report regarding the said incident and the
police yielding to the political influence of the 1st respondent - plaintiff did
not register the case and hence the petitioner was constrained to file a private
complaint against the son of the 1st respondent and others and the same was
forwarded to the concerned police and the police on investigation registered a
case against them and the same is pending. Thus the Counsel would maintain that
in the light of the facts and circumstances the learned Principal Junior Civil
Judge, Tadepalligudem had not exercised the discretion properly while granting
police-aid.

4. On the contrary, Sri Subba Reddy, the learned Counsel representing the 1st
respondent - plaintiff had narrated the dates and would maintain that after a
long lapse of time, the petitioner - 1st respondent - 1st defendant had chosen
to challenge this order by way of this present Civil Revision Petition for the
reasons best known to him. The learned Counsel also had placed strong reliance
on P.SHANKER RAO v. B.SUSHEELA1 and NETHA CHINTAWAR AND ANOTHER V. BODUGAM GOPI2
and would maintain that inasmuch as it is the settled position of law that the
Court can grant police-aid for implementation of the interim orders made by the
Court, the order under challenge cannot be found fault in any way since the same
does not suffer from any illegality or any legal infirmity whatsoever. The
learned Counsel also had taken this Court through the reasons which had been
recorded by the learned Judge and ultimately would conclude that inasmuch as the
learned Judge had exercised the discretion properly, the Civil Revision Petition
is liable to be dismissed.

5. Heard the Counsel on record and perused the material available on record.

6. The Revision Petitioner - 1st respondent - 1st defendant had challenged the
order dt.8-7-2008 made in I.A.No.890/2008 in I.A.No.2451/2007 in O.S.No.421/2007
on the file of the learned Principal Junior Civil Judge, Tadepalligudem. The 1st
respondent is the petitioner in I.A.No.890/2008 in I.A.No.2451/2007 in
O.S.No.421/2007 aforesaid and plaintiff in the said suit. The petitioner -
plaintiff had averred in the affidavit filed in support of the application that
the petitioner filed a suit claiming permanent injunction against the
respondents relating to Ac.3.85 in R.S.No.444/2A at Musullagunta and filed an
application for temporary injunction in I.A.No.2451/2007 in O.S.No.421/2007 and
after due enquiry the learned Judge was pleased to grant temporary injunction on
11-3-2008 and directed the respondents not to remove the thorny bush fencing on
the northern side of the petition schedule property and directed the parties to
maintain the same with other suitable directions. Subsequent thereto on
28-3-2008 made an attempt to remove the thorny fence on the north side of the
petition schedule property by force and they engaged police and they all came to
the plaint schedule property with crowbars, big sickles and the son of the
petitioner resisted their attempts by showing the interim order but the
respondents and their men did not obey the same and started to remove the thorny
fence and the petitioner resisted such attempts. Certain other further averments
had been made how the same had been reported to the police. In such
circumstances, the application I.A.No.890/2008 in I.A.No.2451/2007 in
O.S.No.421/2007 aforesaid had been filed praying for the relief of grant of
police-aid for the purpose of implementation of the order made by the Civil
Court aforesaid. The Revision Petitioner herein - the 1st respondent in the said
application resisted the same and denied all the allegations. Specific stand had
been taken that he has no necessity to remove the thorny fencing on the northern
side of the petition schedule property and also had given certain further
particulars relating to the nature of the order which had been made in
I.A.No.2451/2007 and the other allegations had been denied. Respondents 2 and 3
herein who are also R.2 and R.3 in the application aforesaid had adopted the
counter affidavit filed by the present Revision Petitioner - 1st respondent in
the aforesaid application. The learned Judge formulated the following point for
consideration at para 5 whether there is ground to provide necessary police aid
to the petitioner in order to enforce the order passed in I.A.No.2451/2007?

7. The learned Principal Junior Civil Judge, Tadepalligudem marked Ex.P.1 -
Bunch of photos three in number and also Ex.R.1 - bunch of photos filed on
behalf of the respondents in the aforesaid application i.e., the Revision
Petitioner herein and R.2 and R.3, recorded reasons in detail while answering
the point and ultimately allowed the application granting police-aid to enforce
the order made in I.A.No.2451/2007 in O.S.No.421/2007 aforesaid. Aggrieved by
the same, the present Civil Revision Petition had been preferred under Article
227 of the Constitution of India.

8. This Court again need not reiterate the settled law relating to the exercise
of the power of superintendence of this Court under Article 227 of the
Constitution of India. In P.Shankar Rao's case (referred 1 supra) the learned
Judge of this Court observed as hereunder:-

        "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 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 ancilliary to the 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 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 of 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."

In Neetha Chintawar and another's case (referred 2nd supra) the learned Judge of
this Court observed as hereunder:-

        "The second observation made by the Trial Court is equally untenable.
For all practical purposes, it had annulled the order of temporary injunction
granted by it or rendered it ineffective. It hardly needs any emphasis that an
order of temporary injunction would require the parties of it, to abide by the
directions contained in it. Though, it is competent for a plaintiff to institute
proceedings under sub-rule (2) of Rule 2 of Order 39 C.P.C., if the defendant
commits breach of the order of temporary injunction, he can also approach the
Court, for police protection. In such an event, the Courts are under obligation
to accord necessary protection. By ordering such applications, the Courts would
not be extending any favour to the parties, but would be taking steps for
effective implementation of their own orders and thereby, upholding the dignity
and effectiveness of the institution of Judiciary." In SATYANARAYANA TIWARI v.
S.H.O., P.S.SANTHOSHNAGAR3 it was held that it would be incumbent upon the civil
Courts to ensure that the orders of temporary injunction passed by the Courts
are respected and implemented. The same view was expressed in SANGU BRAHMAN v.
STATION HOUSE OFFICER4. I.A.No.2451/2007 was allowed granting temporary
injunction on 11-3-2008 on merits and the nature of the order which had been
made also had been dealt with while granting police-aid by the learned Principal
Junior Civil Judge, Tadepalligudem and the other facts narrated in the affidavit
filed in support of the application and also the stand taken in the counter had
been dealt with in elaboration and ultimately the learned Principal Junior Civil
Judge, Tadepalligudem while exercising the discretion came to the conclusion
that this is a fit matter where the police-aid for enforcement of the temporary
injunction order already granted to be granted. No doubt, material had been
placed before this Court to show the conduct of the parties as well and how
after sufficient lapse of time the order had been challenged. This Court is not
inclined to express any opinion relating to the said aspect or the conduct of
the parties since this Court is thoroughly satisfied that the order impugned in
the present Civil Revision Petition need no disturbance at the hands of this
Court especially while exercising the revisional jurisdiction under Article 227
of the Constitution of India. In the light of the same, the Civil Revision
Petition shall stand dismissed at the stage of admission. No order as to costs.

?1 2000 (2) ALD 147

2 2006 (5) ALD 95

3 AIR 1982 A.P., 394

4 2005 (3) ALD 772 = 2006 (2) ALT 322

Yes, that is the correct statements of law as ponted out by Shree. In implementation of an order of court it can pass an order under section 151 of the CPC for police protection. Woodroffe on Law Relating to Injunctions : Second revised and enlarged editions at page 48.

Yes, shree has rightly pointed out the relevant laws in question. In implementation of  an order of injunction order of the court it can pass an order under section 151 of the CPC for police protection. See Woodroffe Law relating to Injunction: Second  revised  and enlarged edition at page 48. Tagore law Lecture.

No, with due respect, I cannot agree with you. The Orissa High Court has said in the said citation that when violation petition is pending police protection cannot begiven and Ofcourse, the AP High court hold that 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 but

AP High Court never hold that police protection can be given when violation petition is pending.