Dismissed

Salim v. the Assistant Commissioner of Police

Kerala HC9 Apr 2021WA/635/2021

Case brief

AI extract

What is this about?

High Court Bench dismissed appellant's writ appeal against the Single Judge's refusal to grant police protection for alleged violation of a civil court interim injunction, directing the appellant to pursue remedies under CPC Order XXXIX before the civil court.

What did the court decide?

Appellant held that police protection relief was the wrong forum as they must prove disobedience in the pending civil IA before enforcement court.

Salim Vs the Assistant Commissioner of Police — Property and Title | Kerala HC (2021)

¶1

IN THE HIGH COURT OF KERALA AT ERNAKULAM

¶2

PRESENT

¶3

THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR

¶4

¶5

THE HONOURABLE MR.JUSTICE MURALI PURUSHOTHAMAN

¶6

FRIDAY, THE 09TH DAY OF APRIL 2021 / 19TH CHAITHRA, 1943

¶7

WA.No.635 OF 2021

¶8

AGAINST THE JUDGMENT IN WP(C) 6092/2021(J) OF HIGH COURT OF KERALA

¶9

APPELLANT:

¶10

SALIM AGED 66 YEARS 'SUNITHAS' VIZHINJAM STREET, VIZHINJAM P.O., NEYYATTINKARA TALUK, THIRUVANANTHAPURAM DISTRICT

¶11

BY ADVS. SRI.GEORGE MECHERIL SRI.JOJO JOSEPH

¶12

RESPONDENT:

¶13

1 THE ASSISTANT COMMISSIONER OF POLICE FORT CIRCLE, THIRUVNAANHTAPURAM – 695 009

¶14

2 THE CIRCLE INSPECTOR OF POLICE, VIZHINJAM P.O., NEYYATTINKARA TALUK, THIRUVANANTHAPURAM – 695 042

¶15

3 THE STATION HOUSE OFFICER, VIZHINJAM P.O., NEYYATTINKARA TALUK, THIRUVANANTHAPURAM – 695 042

¶16

4 NOOHUKHAN, AGED 58 YEARS. S/O KHADIRKANNU VYDIAN, 'MOUSAM', KOVALAM P.O. NEYYATTINKARA TALUK, THIRUVANANTHAPURAM – 695 527

¶17

THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 09.04.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

¶18

WA.No.635 OF 2021

¶19

¶20

JUDGMENT

¶21

Dated this the 9th day of April 2021

¶22

C.T.RAVIKUMAR,J

¶23

This appeal is directed against the judgment dated 23.03.2021 in W.P(C)No. 6092 of 2021. The petitioner who is

¶24

the plaintiff in O.S. No.63 of 2021 on the files of Munsiff's Court, Neyyattinkara filed this writ petition seeking issuance of writ of mandamus commanding respondents 1 to 3 to provide adequate and sufficient police protection to the life and property of the petitioner and to enjoy the property without any interference from the 4^th respondent.

¶25

In the contextual situation it is only apposite to refer to the relief sought for in W.P.(C)No.6092 of 2021 and also in O.S. No.63 of 2020 as is evident from Ext.P2, which is the copy of the plaint. The petitioner sought for the following reliefs in the Writ Petition:-

¶26

i. to issue a writ in the nature of mandamus or such other appropriate writ, order or direction commanding the respondents 1 and 3 to provide adequate and sufficient police protection to the life and property of the appellant and to enjoy the property without any interference from the 4^th respondent; ii. to grant such other order or directed which this

¶27

WA.No.635 OF 2021

¶28

¶29

Honorable Court would deem just and proper in the facts and circumstances of the case.

¶30

In O.S. No.63 of 2020, which is pending, he seeks the following

¶31

reliefs:-

¶32

A) To restrain the defendant and their henchman from trespass in to the plaint schedule properties with vehicles and restrain from committing any kind of waste therein. And not to disturb the plaintiffs peaceful possession and enjoyment of the plaint schedule properties.

¶33

B) To pass such other reliefs the court think fit and proper at the time of trial for the fare decision of this case. C) To pass an order of court to the plaintiff and which may

¶34

be allowed to realise from the defendant and his assets. (sic.)

¶35

It is the alleged violation of Ext.P3 interim injunction

¶36

granted by the Munsiff's Court, in suit and the consequential inaction on the part of the Police Authorities that led to the filing of the above mentioned Writ Petition. The learned Single Judge dismissed the same without prejudice to the right of the petitioner to prosecute I.A. No.7 of 2021 in O.S. No.63 of 2020 pending before the Munsiff's Court, Neyyattinkara

¶37

Heard the learned Counsel for the appellant and also the learned Government Pleader.

¶38

The impugned judgment would reveal that the

¶39

WA.No.635 OF 2021

¶40

¶41

learned Single Judge had considered all the contentions raised by the appellant-petitioner. Obviously, the learned Single Judge relied on a Division Bench judgment of this Court in Shaji M.K. and another v. State of Kerala and others [2018 (3) KHC 69] which was rendered relying on decisions in Kanwar Singh

¶42

Saini v. High Court of Delhi [(2012) 4 SCC 307] , George Mirante v. State of Keralal [1990 (2) KLT 89] and Madavana Masjidul Badariya Jamaath v. Seethi K.A. [2017 (4) KHC 770] . Relying on the said decision in Shaji M.K. (supra) the Division Bench held that when there is disobedience or breach of an order of temporary injunction passed by a civil court under Order XXXIX, Rule 1 of the Code of Civil Procedure, the remedy to the plaintiff/applicant is either to apply to that court under Order XXXIX, Rule 2A of the Code seeking an order to attach the property of the person guilty of such disobedience or breach and for an order to detain such person in civil prison, for a term not exceeding three months, in accordance with law. In appropriate cases, the plaintiff/applicant can also seek for invocation of inherent powers of the civil court under Section 151 of the CPC, that includes the power to grant police protection to secure

¶43

WA.No.635 OF 2021

¶44

¶45

compliance of the order of temporary injunction.

¶46

In the said circumstances, after referring to those decisions, the Writ Court held that when there is adequate provisions there under the CPC which would enable the civil court to enforce and ensure implementation of its orders, a plaintiff/applicant in a civil suit in a civil court would not be justified in approaching this Court raising grievance against disobedience or violation of the orders. In such circumstances, this Court would be loath to interfere in such matters in invocation of the power under Article 226 of the Constitution of India granting police protection to secure compliance of the order of temporary injunction, it was held. Obviously, the learned Single Judge had also considered the factum of filing and pendency of I.A. No. 7 of 2021 filed by the appellant herein in O.S. No. 63 of 2020.

¶47

The learned Counsel for the appellant would submit that despite the existence of such provisions under CPC it would not take away the power of this Court under Article 226 of the Constitution of India to grant police protection. It is also submitted that raising complaints of violation of Ext.P3 order of interim injunction the petitioner has filed a complaint before the

¶48

WA.No.635 OF 2021

¶49

¶50

Assistant Police Commissioner, Fort Kochi and in Ext.P6 viz., in I.A. No.1 of 2020 in O.S. 63 of 2020 filed before the Munsiff's Court, Neyyattinkara he also sought for issuance of a direction to the 4^th respondent viz., Circle Inspector of Police, Vizhinjam to provide adequate police protection to the petitioner and also for the peaceful possession and enjoyment of plaint 'B' schedule property. The further grievance of the petitioner is that so far, no order has been passed therein. The learned Counsel relied on the judgment of this Court in Seethi K.A. case (supra) to buttress his contentions.

¶51

We are of the considered view that at this stage the petitioner cannot place any reliance on the decision in Seethi

¶52

K.A. case (supra). It is very specifically stated thereunder that in case of an allegation of violation the plaintiff has to establish beyond any shadow of doubt that the defendant had committed disobedience/breach of order of injunction. It is to be noted that the petitioner has already filed I.A. No. 7 of 2021 in O.S. No. 63 of 2020 seeking adequate police protection to the petitioner for peaceful possession and enjoyment of plaint schedule property. We have already taken note of the fact that the very basis for prayer of the petitioner for police protection in

¶53

WA.No.635 OF 2021

¶54

¶55

the Writ Petition is that the 4^th respondent is trespassing into his property violating Ext.P3 order of interim injunction. As held by this Court in Shaji M.K. case (supra) the remedy of the petitioner who is the plaintiff in O.S.No.63 of 2020 is to apply under Order XXXIX, Rule 2A of the CPC, before Munsiff's Court, Neyyattinkara. In the light of the decision in Seethi K.A. case (supra) in order to obtain orders therein, it is essential for the appellant herein to establish beyond any shadow of doubt that the defendant, who is the 4^th respondent herein, had committed disobedience/breach of the interim order. In the said circumstances, we are of the considered view that it is not for this Court to take any action on the allegation of disobedience/violation of Ext.P3, that too, without any evidence as to whether the 4^th respondent had committed breach or violation of Ext.P3 order of interim injunction. That is a matter which the petitioner has to establish before the civil court in O.S. No.63 of 2020 definitely in I.A. No. 7 of 2021. When the aforesaid I.A. is pending consideration before the Munsiff's Court, Neyyattinkara wherein O.S. No.63 of 2020 is pending, the petitioner is not justified in approaching this Court with a prayer for police protection mainly alleging violation of Ext.P3

¶56

WA.No.635 OF 2021

¶57

¶58

order of interim injunction. In that view of the matter and taking into consideration I.A. No. 7 of 2021 in O.S. No. 63 of 2020, we do not find any illegality or perversity in the impugned judgment passed by Writ Court. The appeal must fail and consequently, it is dismissed.

sd/-

C.T.RAVIKUMAR

JUDGE

sd/-

MURALI PURUSHOTHAMAN

¶64

JUDGE