M/S Babul Reddy Junior College, v. V. Madhava Reddy

THE HON'BLE SRI JUSTICE M.SATYANARAYANA MURTHY CIVIL REVISION PETITION NO.5317 OF 2016 ORDER:

This civil revision petition is filed under Section 227 of the Constitution of India by the petitioner challenging the order dated 19.09.2016 in I.A.No.688 of 2015 in O.S.No.175 of 2014 passed by the V Additional District Judge, Medak at Sangareddy. Initially, the petitioner filed I.A.No.402 of 2015 in O.S.No.175 of 2014 under Order XXXIX Rule 1 & 2 of CPC r/w 151 of CPC and obtained ad-interim injunction order on 22.06.2015 restraining the respondent from making any construction or changing the nature of suit schedule land in Sy.No.6, admeasuring Ac.5.00 gts out of total extent admeasuring Ac.11.25 gts situated at Patelguda village, Patancheru Mandal, Sangareddy Taluq, Medak District.

It is alleged that the respondent having knowledge about passing an interim order of restraining him from raising constructions, started threatening the petitioner and his men with dire consequences, is nothing but disobedience of the order passed by the Trial Court on 22.06.2015. When the petitioner approached the police, they declined to interfere with the civil litigation. Thereupon, the petitioner filed I.A.No.688 of 2015 in O.S.No.175 of 2014 seeking police protection to implement the orders dated 22.06.2015 in I.A.No.402 of 2015 in O.S.No.175 of 2014, as the respondent violated the interim order passed by the Trial Court.

Ac.11.23 gts in Patelguda village, Patancheru Mandal, Sangareddy Taluq, Medak District, constructed compound wall, raised mango garden. It is stated that the respondent later converted the land into non-agricultural land and sold about Ac.9.00 gts under registered sale deeds, the purchasers divided the said Ac.9.00 gts of land into residential plots and it is stated that there are about 100 residential plots, sold to different persons and there are about 100 residential houses in Sy.No.6 of Patelguda village and almost all the houses are in occupation and some other plot purchasers are constructing their houses which are in different stages and the respondent is in possession of Ac.2.23 gts after selling Ac.9.00 gts and there are mango trees in the said land of Ac.2.23 gts. The respondent specifically asserted that he did not make any construction in the mango orchard and in the absence of impleading other persons who are in possession of the property and constructing the houses, the petition is not maintainable.

It is further contended that the petitioner furnished wrong boundaries in the plaint schedule and filed petition seeking police protection mischievously without disclosing the extent of residential houses and partly constructed houses on the land of an extent of Ac.9.00 gts and making sincere attempt to obtain an order to stop constructions on various plots covering Ac.9.00 gts. In the remaining Ac.2.23 gts, a mango garden is in existence thereby, question of alleged violation of interim injunction does not arise. The petitioner is also not entitled to claim police protection, as the remedy is available under Order XXXIX Rule 2 of C.P.C. If, really, there is any violation, but resorted a short cut method to obtain an order and thereby he is disentitled to claim relief in the petition and prayed to dismiss the

petition.

Upon hearing argument of both the counsels and relying on the law declared by this Court and the Supreme Court, the Trial Court dismissed I.A.No.688 of 2015. Aggrieved by the order in I.A.No.688 of 2015, the present revision is filed under Article 227 of Constitution of India contending that the order of the Trial Court is erroneous, since the Civil Court is under obligation to implement its own orders, the Court has to provide police protection by exercising power under Section 151 C.P.C. When an interim order was passed under Order XXXIX Rule 1 & 2 which became final vide order dated 22.06.2015, the respondent is bound to obey the order of interim injunction. When the respondent disobeyed, for implementing the order, necessary protection is required to be provided to the petitioner by the Court itself.

Otherwise, it is difficult for the petitioner to protect the property. But the Trial Court did not consider the factum of such violation and committed an error. Therefore, requested this Court to set-aside the order and provide necessary police protection to the petitioner to implement the order in I.A.No.402 of 2015.

During hearing, learned counsel for the petitioner mainly contended that when the Court passed an interim injunction under Order XXXIX Rule 1 & 2, it is the responsibility of the Court to provide necessary police protection to implement the order. Otherwise, the order will become useless and it amounts to encouraging the unlawful wrongdoers who disobeyed the orders of this Court and mere availability of remedy under Order XXXIX Rule 2(a) will not denude the petitioner to avail the liberty to obtain a

police protection under Section 151 C.P.C and when two remedies are available, the petitioner may chose anyone of the remedy. But, providing police protection is more effective than the relief under Order XXXIX Rule 2(a). Therefore, the Trial Court disowning its responsibilities to implement the order, dismissed the petition filed by the petitioners for providing necessary police protection and the learned counsel for the petitioner prayed to allow the civil revision petition by setting aside the order passed in I.A.No.688 of 2015 on 19.09.2016.

Learned counsel for the petitioner drawn attention of this Court to the judgment in Bijiga Papa Rao and others v. Jonnalagadda Srinivasa Rao1 and Gampala Anthaiah v. Kasarla Venkat Reddy2. Per contra, learned counsel for the respondent contended that unless there are strong circumstances to establish serious disobedience of interim injunction granted under Order XXXIX Rule 1 & 2, the Court cannot normally grant police protection and the entire affidavit is silent with regard to the strong circumstances, except making a bald allegations that the respondent is threatening the petitioner and his men with dire consequences. In the absence of such circumstances, as laid down by the Division Bench of this Court Polavarapu Nagamani and others v. Parchuri Koteshwara Rao and others3, the Court cannot pass an order to provide police protection for implementation of the interim order passed on 22.06.2015 in I.A.No.402 of 2015.

On the strength of the law declared by the Division Bench of 1 2015 (2) ALD 171 2 2014 (2) ALD 281 3 2010 (2) ALD 41 (DB)

this Court, learned counsel for the respondent sought dismissal of the civil revision petition while supporting the order passed by the Trial Court.

Considering the rival contentions and perusing the material available on record, the point that arose of consideration is "whether the petitioner is entitled to claim police protection to implement the interim order passed on 22.06.2015 in I.A.No.402 of 2015."

Undisputedly, the petition is filed under Section 151 C.P.C claiming police protection to implement the order passed in I.A.No.402 of 2015. The sole allegation in paragraph 3 of the affidavit is that the respondent is having knowledge of interim injunction passed by the Trial Court and tried to change the nature of the suit schedule property. For better appreciation of facts, paragraph 3 is extracted hereunder:

"3. It is submitted that the respondents having knowledge of the injunction orders passed by this Hon'ble Court, are trying to change the nature of the Suit Schedule Property making construction and have threatened the petitioner and his men of dire consequence, the same amounts to willful disobedience of the order passed by this Hon'ble Court. That the petitioner has approached the local police who refused to interfere with same as such police protection to be given to the petitioner. Hence it is prayed this Hon'bel Court may be pleased to direct Police Patancheru to provide police protection to the petitioner to implement the orders passed on 22.06.2015." It is contended by the learned counsel for the respondent that such bald allegation is not sufficient to grant police protection, in view of the law declared by the Division Bench of this Court in Polavarapu Nagamani case. An identical question came up for

consideration before the Division Bench of this Court in Polavarapu Nagamani case and after analyzing entire law, the Division Bench laid down the following guidelines to exercise jurisdiction under Section 151 C.P.C to provide police protection and they are as follows:

(i) When the allegations are made by the party obtaining an order of injunction, that the said order has been violated, an application seeking police protection would not lie. The aggrieved party has to necessarily file execution petition under Order XXI Rule 32 or an application under Order XXXIX Rule 2A of Code of Civil Procedure seeking attachment and/or arrest of the violator for contempt of the Court.

(ii) When a petition is filed seeking police protection, whether or not to exercise of power under Section 94(e) or Section 151 of CPC, the facts alleged or pleaded. An order for police protection cannot be passed in a routine manner.

(iii) If an application is filed by the person obtaining ad interim injunction alleging that there is a threat of breach, disobedience or violation of the order of injunction, subject to proof, the Court has power to order police protection imposing necessary conditions not to interfere with the life and liberty rights of the opposite party. (iv) The standard of proof required in the case of threat of disobedience of injunction or alleged breach, disobedience or violation of an order of injunction should be very high and it should be in between the standard of beyond reasonable doubt and a standard of balance on probabilities. Be it noted, as held by Supreme Court in Chottu Ram v. Urvashi4 and Anil Ratan Sarkar v. Hirak Ghosh5, in all cases of contempt the plea should be proved applying the very high standard of proof and not mere affidavits or self-serving statements of the party seeking the intervention of the Court.

.

4 (2001) 7 SCC 530 5 (2002) 4 SCC 21

In view of guideline no.4 of the Polavarapu Nagamani case, the standard of proof required in the case of threat of disobedience of injunction or alleged breach, disobedience or violation of an order of injunction should be very high and it should be in between the standard of proof beyond reasonable doubt and a standard of proof on probabilities.

If such is the law, bald allegation made in paragraph 3 of the affidavit, which I extracted herein above is insufficient to order police protection. Though, the petitioner made an allegation that he approached the police and the police did not interfere in the matter, no iota of evidence in support of his contention is produced and any details like when the respondent made an attempt to violate the interim injunction granted by the Court in I.A.No.402 of 2015 dated 22.06.2015 and also the other details like in whose presence the said attempt was made to violate the interim order were also absent. In the absence of proof in support of those allegations and seeking police protection cannot be provided, since there is a possibility of causing hardship to the respondent, though no violation took place on certain occasions.

When such high stand of proof is required to order police protection, the petitioner would have produced some evidence in support of the said violation atleast by filing affidavit in whose presence the respondent made an attempt to violate the order of interim injunction or any photographs etc. The bald allegation made in paragraph 3 referred above is not a substitute to high stand of proof, since it is only a part of pleading. Pleading is different from proof.

protection.

Learned counsel for the petitioner while contending that there is no bar to grant police protection, since it is the obligation of the Court to provide such protection to implement its own order. Those guidelines will have no direct bearing on this issue. Further, learned counsel for the petitioner drawn attention of this Court to Gampala Anthaiah case. In paragraph 15 of the said judgment, the learned Single Judge of this Court held that an order of temporary injunction has to be obeyed by the parties to it and when the plaintiff complains that the defendant is committing breach of the said order and seeks police protection, the Court is under an obligation to accord such protection. Unless this is done, the rule of law will not prevail and judicial orders would not be effectively implemented.

Granting of such orders would uphold the dignity and effectiveness of the judiciary. In Gampala Anthaiah case, the learned single relied on the judgment of the Supreme Court in P.R. Muralidharan and others v. Swamy Dharmananda Theertha Padar and others6. There the Supreme Court had an occasion to consider whether a High Court under Article 226 of the Constitution of India could grant the relief of police protection. It held that in a given case, a person may be entitled to police protection having regard to the threat perception to his life and liberty or for protection of rights declared by a decree or order passed by a civil court, and if court is satisfied that the authorities have failed to perform their duties.

do so are open to question as manifested by the pleadings themselves. It held that disputed questions of fact cannot be gone into in a writ proceeding and that the jurisdiction of a civil court being wide and plenary, the High Court cannot grant such a relief in a writ proceeding. Thus, the principle laid down in the above judgment is of no assistance to the petitioner in the present case to grant police protection.

The Supreme Court in Meera Chauhan v. Harsh Bishnoi7, held that when parties violate order of injunction or stay order or act in violation of the said order the court can, by exercising its inherent power, give appropriate direction to the police authority to render aid to the aggrieved parties for the due and proper implementation of the orders passed in the suit and also order police protection for implementation of such order and held as follows: "14. Before we deal with this question of possession as to who was in actual possession at the relevant point of time it would be appropriate to note that the order for restoration was passed by the trial court on an application under Section 151 of the Code of Civil Procedure.

A question may arise whether such an application can be entertained by the court when specific provision under Order XXXIX of the Code of Civil Procedure has been made for grant of injunction in the form of mandatory order in the exercise of power under the said order. Therefore to decide this aspect of the matter, let us consider the scope of Section 151 of the Code of Civil Procedure.

151. Saving of inherent powers of Court.--Nothing in this Code shall be deemed to limit or otherwise affect the inherent power of the Court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the Court."

7 (2007) 12 SCC 201

The Supreme Court in Manohar Lal Chopra v. Rai Bahadur Rao Raja Seth Hiralal8 while dealing with the power of the court to pass orders to meet the ends of justice or to prevent the abuse of the process of the court, this Court held that the courts have inherent jurisdiction to issue temporary order of injunction in the circumstances which are not covered under the provisions of Order XXXIX of the Code of Civil Procedure. However, it was held by the Court in the aforesaid decision that the inherent power under Section 151 of the Code of Civil Procedure must be exercised only in exceptional circumstances for which the Code lays down no procedure.

At the same time, it is also well settled that when parties violate order of injunction or stay order or act in violation of the said order the court can, by exercising its inherent power, put back the parties in the same position as they stood prior to issuance of the injunction order or give appropriate direction to the police authority to render aid to the aggrieved parties for the due and proper implementation of the orders passed in the suit and also order police protection for implementation of such order.

Thus, the law declared by the Apex Court, Division Bench of this Court and Single Judge of this Court referred above at best would show that the police protection can be provided to implement the order when interim order is violated by the respondent. There is no quarrel with regard to power of the Court to grant police protection for implementation of the order of injunction, but what is high standard of proof is required in such case, is the question in this petition.

8 AIR 1962 SC 527

In view of the law declared by the Division Bench of this Court, which is a binding precedent on the learned Single Judge, high standard of proof is required to grant police protection and based on a bald allegation in the affidavit filed along with the petition, the Courts are not supposed to provide such police protection, since it will have serious consequences which the Presiding Officer of Court can visualize as an ordinary prudent person.

Learned counsel for the petitioner also placed reliance on the judgment of this Court in Bijigan Papa Rao case. In paragraphs 17 & 18, the learned Single Judge held as follows: "17. It is required to be noted that the ultimate endeavour of the Courts should be in the direction of the upholding the majesty of the Courts and safeguarding the sanctity of the orders and decrees of the Courts from being invaded and flouted in the name of lame, feeble and unreasonable excuses and explanations and in the name of unsustainable technicalities. In the instant case, the petitioners herein, having suffered an order of injunction and having failed to assail the same, are attempting to take shelter in the guise of pendency of suit, O.S. No.

88 of 2013, and in the considered view of this Court, the same is not tenable in the absence of any order in their favour. The efforts of the Courts should necessarily be in the direction of creating confidence in the people in the system and the same cannot be achieved without respect to the rule of finality. It is a settled law that unless the order under challenge suffers from jurisdictional error and patent perversity, the jurisdiction of this Court under Article 227 of the Constitution of India is not available. Since the order under challenge, in the considered opinion of this Court, does not suffer either from any jurisdictional error or any perversity, this Court does not find any justification to meddle with the order impugned.

18. In the facts and circumstances of the case, the judgment in K.K. Velusamy v. N. Palanisamy (2 supra) would not render any assistance to the petitioners. In fact, in the said decision also, the Hon'ble Apex Court at paragraph 12 disapproved the contention that Section 151 of the Code cannot be used for reopening the evidence or recalling the witness. It would be very much evident from the above referred judgments that the police-aid can be granted in deserving and appropriate cases under Section 151 of the Code. This Court, on thorough analysis of the material available, is of the opinion that the Court below is justified in giving police-aid for implementation of the injunction order, which attained finality as long back as on 13.3.2013. In these circumstances, this Court has absolutely no sentilla of hesitation to hold that there are no merits in the present Civil Revision Petition."

This is also in the lines of Gampala Anthaiah case. The legal principle laid down by the learned Single Judge is not in quarrel. But still, high stand of proof is required to pass such an order of providing police protection to the person aggrieved. But in the present case, except making a bald allegation in paragraph 3 of the affidavit which I extracted above, is not supported by any material. There is absolutely nothing so as to enable the petitioner to claim police protection to implement the order passed by the Trial Court. In the absence of any material regarding alleged violation of interim injunction, based on bald allegations, the Courts are not expected to provide police protection, in view of serious consequences that flow from passing of such orders.

Therefore, the Trial Court rightly declined to provide police protection, as the petitioner failed to substantiate the allegation that the respondent made a serious attempt to violate the interim order. Therefore, the finding recorded by the Trial Court does not call for interference by this Court and the petitioner is at liberty to approach the Court under Order XXXIX Rule 2A, if there is any violation or disobedience of order where regular enquiry is to be conducted to punish the violator. On overall consideration of entire material and the law declared by the Courts referred supra, I find no ground warranting interference of this Court and consequently the order passed by the Trial Court in I.A.No.688 of 2015 in O.S.No.175 of 2014 is hereby confirmed, holding the point against the petitioner and in favour of the respondent.

Thus, the order under challenge before this Court does not suffer from any illegality warranting interference of this Court while exercising power under Article 227 of the Constitution of India. Since the powers of this Court under Article 227 are limited, this Court cannot exercise such power and the duty of this Court is to see that the Courts shall not exceed its power that is conferred on it or exercise power based on extraneous material to pass any order and to keep the subordinate courts within its bounds of jurisdiction. This Court while exercising power under Article 227 can exercise its discretion to interfere in the following circumstances: a) When the inferior court assumes jurisdiction erroneously in excess of power.

b) When refused to exercise jurisdiction.

c) When found an error of law apparent on the face of record. d) Violated principles of natural justice.

e) Arbitrary or capricious exercise of authority or discretion. f) Arriving at a finding which is perverse or based on no material. g) A patent or flagrant error in procedure.

h) Order resulting in manifest injustice.

i) Error both on facts and law or even otherwise. But, in the present facts of the case, there is absolutely no error warranting interference of the Court to interfere with the order by exercising power of supervision over the Subordinate Courts in the following situations:

Similarly, the Court cannot exercise its discretion under Article 227 of the Constitution of India:

a) Where the only question involved is one of interpretation of deed;

b) On question of admission or rejection of particular piece of evidence, even though the question may be of everyday recurrence;

c) To correct erroneous exercise of jurisdiction, as a Court of revision;

d) To set aside an intra vires finding of the fact, except where it is founded on no material or is perverse;

e) to correct an error of law, not being an error apparent on the face of the record;

f) to interfere with the intravires exercise of discretionary power, unless it is violative of principles of natural justice; g) The Court shall not interfere on a merely technical ground which would not advance substantial justice.

Article 227 deals with power of superintendence by the High Court over all Subordinate Court and Tribunals. The power of superintendence conferred upon the High Court by Article 227 is not confined to administrative superintendence only, but includes the power of judicial revision also even where no appeal or revision lies to the High Court under the ordinary law, rather power under this Article is wider than that of Article 226 in the sense that it is not subject to those technicalities of procedure or traditional fetters which are to be found in certiorari jurisdiction and such power can also be exercised suo motu.

It is a well settled principle that the High Court can exercise supervisory power under Article 227 of Constitution of India, as held

by the Apex Court in "State (N.C.T. Of Delhi) vs Navjot Sandhu@ Afsan Guru9", that under Article 227 of Constitution of India the High Court can interfere with the directions of the Subordinate Courts.

In view of the law laid down by the Apex Court, this Court cannot exercise its power under Article 227 of the Constitution of India though the order is wrong, since the power can be exercised only to keep the subordinate Courts and Tribunals within its bounds. Therefore, I am unable to exercise power under Article 227 of the Constitution of India to interfere with the findings recorded by the trial Court since the trial Court acted within its bounds and passed the order, which is under challenge.

In view of the limited powers of this Court under Article 227 of the Constitution of India, having found no error in the order under challenge in the revision petition, this Court cannot interfere with the findings and consequently liable to be dismissed. In the result, C.R.P.No.5317 of is dismissed.

Consequently the order passed by the Trial Court in I.A.No.688 of 2015 in O.S.No.175 of 2014 is hereby confirmed. Consequently, miscellaneous applications pending if any shall stand closed. No costs.

_________________________________________ JUSTICE M. SATYANARAYANA MURTHY Date: 15.02.2017 SP 9 2003 (6) SCC 641