P SHANKER RAO Vs. B SUSHEELA

JUDGEMENT

(1.) This C.R.P. is filed against an order granting police aid for implementation of the temporary injunction granted by the trial Court pending the suit for perpetual injunction. By the interim injunction the petitioner herein was restrained from evicting the plaintiff-respondent from the suit schedule property. The petitioner in this revision is the defendant in the suit.

(2.) The learned trial Judge relied on the decision of this Court in Vinedale Distilleries Ltd. v. Sanman Distributors Ltd., (1993) 2 APLJ (SN) 5 in support of the proposition that the Court is empowered to direct police aid to ensure implementation of the injunction order. The learned counsel for the petitioner however relies on the decision in J. Jagannath Reddy v. L. Laxmi Devi, (1998) 1 ALT 461 : (1998 AIHC 3639). The learned Judge was of the view that Section 151, C.P.C. cannot be invoked to seek police aid for protection of alleged possession pending the suit. The learned Judge observed as follows :"If there is an order in the nature of injunction positively to protect the possession of a party to the case which if becomes executable can be dealt with in accordance with law under Order 21, Rule 32 of the Code of Civil Procedure to deal with the violators either by attachment of property or by keeping any such persons in Civil Prison. The worst is such an order which is disobeyed or violated may amount to contempt of Court regarding which the procedure contemplated is totally different. Granting police protection under Section 151, C.P.C. in such a situation or in any other situation is never known in law.. . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . . . . . .As every right determined will be capable of execution or enforcement according to procedure only or otherwise whenever there was a decree becomes inexecutable for various reasons, then, under Order 21 of the Code of Civil Procedure, the order could have become enforceable with the police aid. Rule of Law is the Role of Law and for the ends of justice. Any violation is the negation of justice, particularly when there was no order in favour of the respondents as to the possession to maintain positively, granting of police help under Section 151 of Code of Civil Procedure was an absurd legal result flowing from immaturity in the understanding of the matter and impropriety in the exercise of the power. Not only it amounts to excess exercise of power but also an incurable illegality. No inherent power under Section 151 of the Code of Civil Procedure can be exercised where there are specific provisions in the Code and in view of the Order 21, Rule 32, C.P.C. and the Contempt of Courts Act, no such order under Section 151, C.P.C. could have been passed, even assuming that there was a negative order in favour of the respondents which could be positively enforced or executed."

(3.) 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 ancillary 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 or 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.