IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MRS. JUSTICE M.C.HARI RANI TUESDAY, THE 11TH NOVEMBER 2008 / 20TH KARTHIKA 1930 WP(C).No. 30500 of 2008(E) -------------------------- PETITIONER: --------------- MYTHEEN KANNU, S/O.SHAHUL HAMEED, SHAMEEM MANZIL, PARAYAM VILAKATHU VEEDU, VIZHINJAM, TRIVANDRUM. BY ADV. SRI.M.R.SARIN SRI.M.R.SASITH RESPONDENTS: --------------- 1. COMMISSIONER OF POLICE, TRIVANDRUM. 2. SUB INSPECTOR OF POLICE, VIZHINJAM POLICE STATION, VIZHINJAM. 3. SHAJAHAN, MYTHRA MANZIL, VIZHINJAM, TRIVANDRUM. ADV. SRI.G.S.REGHUNATH FOR R3 GOVERNMENT PLEADER, SRI.BENJAMIN PAUL FOR R1 & R2. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 11/11/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) NO.30500/2008 APPENDIX PETITIONER'S EXTS: EXT.P1: COPY OF THE CAVEAT NOTICE ISSUED BY SHAJAHAN. EXT.P2: COPY OF COMPLAINT FILED BY PETITIONER BEFORE 2ND RESPONDENT. EXT.P3: COPY OF THE C.M.P.NO.8100/08 FILED BY PETIONER BEFORE JUDICIAL FIRST CLASS MAGISTRATE COURT-II, NEYYATTINKARA. EXT.P4: COPY OF FIR 315/08 OF VIZHINJAM POLICE STATION. EXT.P5: COPY OF THE COMPLAINT GIVE BY THE PETITIONER BEFORE THE 1ST RESPONDENT. EXT.P6: COPY OF THE COMPLAINT GIVEN BY THE PETITIONER BEFORE THE 2ND RESPONDENT. RESPONDENT'S EXTS: EXT.R3(a): COPY OF THE AGREEMENT DT.30.10.2007. EXT.R3(b): COPY OF THE RECEIPT DT.7.3.2008 ISSUED BY THE PETITIONER AND HIS WIFE. EXT.R3(c): COPY OF PLAINT IN O.S.NO.189/2008 FILED BEFORE THE SUB COURT, NEYYATTINKARA BY THE 3RD RESPONDENT AND HIS BROTHER. EXT.R3(d): COPY OF ADVOCATE NOTICE SENT TO THE PETITIONER BY 3RD RESPONDENT. EXT.R3(e): COPY OF FIR NO.419/2008 OF THE VIZHINJAM POLICE STATION. //TRUE COPY// PA TO JUDGE K. BALAKRISHNAN NAIR & M.C.HARI RANI, JJ. ---------------------------------------- W.P.(C) No.30500 OF 2008 ---------------------------------------- Dated this the 11th day of November, 2008 J U D G M E N T ~~~~~~~~~~~ Balakrishnan Nair, J. The petitioner's wife is the owner of a two storied building constructed in 1.77 Ares of land in Re-survey No.197/5 and 197/5-1 of Vizhinjam Village. Mortgaging the said property, the petitioner has availed a loan of Rs.6,00,000/- from the State Bank of Travancore, Vizhinjam Branch. The 3rd respondent is a money lender by profession. The petitioner borrowed Rs.3,00,000/- from him on 30.10.2007. As a security for the same, he has given certain signed blank papers including stamp papers. The petitioner was to repay the amount in monthly installments of Rs.15,000/- per month. The petitioner was conducting a hotel in a portion of the building. Since he was laid up with illness, he was unable to pay the amount. Therefore, the hotel was handed over to the 3rd respondent, on condition that he will pay a monthly rent of Rs.5,000/- to the petitioner. The petitioner later came to notice that the 3rd respondent is not running the hotel and therefore he requested W.P.(C) No.30500/2008 2 to hand over the hotel on payment of the three defaulted monthly installments. But, he was told by the 3rd respondent that the said respondent will get the property in his name some how or other. Later, the petitioner was served with Ext.P1, a copy of the caveat notice filed before the Sub Court, Neyyattinkara. A reading of Ext.P1 would show that according to the 3rd respondent, the aforementioned property is subject to a sale agreement executed by the petitioner's wife in favour of the said respondent. On receipt of Ext.P1, he realised that the signed blank stamp papers obtained from the petitioner were used by the 3rd respondent to forge the agreement for sale. So, the petitioner filed Ext.P2 complaint before the 2nd respondent praying to take action against the 3rd respondent for the offence under Section 468 of I.P.C. Since the 2nd respondent did not take any effective action, the petitioner filed a private complaint before the Judicial First Class Magistrate II, Neyyattinkara, alleging offences under Sections 323, 324, 463, 506 and 34 of I.P.C. The Magistrate after holding the necessary enquiry has issued summons to the 3rd respondent, it is submitted. As a counter blast, the 3rd respondent has filed a petition before the W.P.(C) No.30500/2008 3 police and a crime has been registered against him as per Ext.P4 F.I.R. alleging the offence punishable under Section 420 IPC. While so, on 22.9.2008 at about 9.30 p.m. the 3rd respondent along with some local muscle men came to the petitioner's house, where the petitioner was residing and tried to remove its lock. He and his wife and children were manhandled by the 3rd respondent and his supporters. They were abused with obscene words and the assailants threatened to kill them also. Since the petitioner's wife and son sustained injuries, they were admitted in the Primary Health Centre, Vizhinjam. As the police did not take any action, the 3rd respondent again came to the house of the petitioner on the morning of 26.9.2008 and manhandled his son-in-law. Immediately, the petitioner filed a representation before the 1st and 2nd respondents on 26.9.2008 seeking necessary police protection. Those complaints are produced as Exts.P5 and P6. Alleging that the police did not take any action, this writ petition is filed. 2. The 3rd respondent has filed a counter affidavit stating that the petitioner's wife executed an agreement for sale of the W.P.(C) No.30500/2008 4 aforementioned property for a total consideration of Rs.26,00,000/-. Ext.R3(a) is the copy of the said agreement. He has already paid Rs.18,00,000/- towards sale consideration. Additional amounts were also paid subsequently, and now the total amount paid will come to Rs.22,87,000/-. In view of the substantial amounts received, the petitioner's wife handed over the possession of the main shop room of the building to the 3rd respondent, where the hotel is run by him. Since the petitioner and his wife failed to execute the sale deed as requested by the 3rd respondent, the said respondent has filed O.S.No.189/2008 before the Sub Court, Neyyattinkara, seeking specific performance. The 3rd respondent denies all the allegations of the petitioner. In fact, it was the petitioner and his family members who manhandled the 3rd respondent. The same will be evident from the crime registered as Ext.R3(e). Therefore, the 3rd respondent prays for dismissal of the writ petition. 3. The learned Government Pleader, upon instructions, submitted that the dispute between the parties is a civil dispute. The petitioner is working in the police canteen and therefore W.P.(C) No.30500/2008 5 there is no question of any threat to his life. The building is very close to the Vizhinjam Police Station and the police is keeping surveillance in that area. 4. Having regard to the nature of the allegations and counter allegations between the parties, we think this Court is not justified in ordering any protection to one side or the other invoking our jurisdiction under Article 226 of the Constitution of India. The petitioner may invoke the ordinary remedies available to him under law by moving the competent civil court or criminal court, as the case may be. Accordingly, this writ petition is dismissed, without prejudice to the contentions of the petitioner and his right to move other forums for appropriate reliefs. (K.BALAKRISHNAN NAIR, JUDGE) (M.C.HARI RANI, JUDGE) ps