THE HON’BLE SRI JUSTICE L.NARASIMHA REDDY C.R.P. Nos.2708 & 3245 of 2010 COMMON ORDER Dt:11-08-2010 Between : N.K. Leasing Constructions Ltd., Rep. by its Director Sri Shankar Lal Agarwal, Saifabad, Hyderabad .. Petitioner And Sugan Chand Sankla and another .. Respondents Counsel for the petitioners: Sri V. Ramachandra Goud Counsel for respondents : Sri D. Prakash Reddy, Sr. Counsel. < GIST >HEAD NOTE: ? CASES REFERRED : THE HON’BLE SRI JUSTICE L. NARASIMHA REDDY C.R.P. Nos.2708 & 3245 of 2010 COMMON JUDGMENT: These two revisions arise out of the same suit and between the same parties. Hence, they are disposed of through a common judgment. 2. Respondents filed O.S.No.2554 of 2009 in the Court of VIII Additional Senior Civil Judge, Ranga Reddy District, at L.B. Nagar, against the petitioner, for the relief of perpetual injunction in respect of Ac.1.04 guntas in Sy.No.698 of Shamshabad Village and Mandal. It was pleaded that the suit schedule property was purchased in two bits of 36 guntas and 8 guntas through separate sale deeds, dated 05-06- 2009, and that necessary entries were made in the records of Gram Panchayat. Permission for construction was said to have been granted by the Gram Panchayat, on 10-11-2009. Alleging that the petitioner, a company, registered under the Companies Act, represented by its Director, is interfering with their possession, the respondents prayed for the relief of perpetual injunction. 3. The respondents have also filed I.A.No.2950 of 2009, under Order XXXIX Rules 1 and 2 C.P.C., for temporary injunction. The trial Court passed an order of ad interim temporary injunction on 31-12-2009. Thereafter, that order was made absolute. 4. The respondents filed I.A.No.54 of 2010, under Section 151 C.P.C., with a prayer to grant police aid. It was alleged that despite the order of temporary injunction, the petitioner is interfering with their possession. The trial Court passed an interim order dated 27-01-2010, granting police aid. The same is challenged in C.R.P.No.2708 of 2010. 5. The petitioner filed Civil Miscellaneous Appeal in the Court of Principal District Judge, Ranga Reddy District, at L.B. Nagar, against the ad interim order of temporary injunction dated 31-12-2009. There was a delay of 170 days in preferring the appeal. Hence, I.A.No.2533 of 2010 was filed under Section 5 of the Limitation Act. A prayer was also made by the petitioner for suspension of the operation of the order of temporary injunction. The lower Appellate Court passed an order dated 22-07-2010, holding that, in view of the prohibition imposed in Rule 3-A(3) of Order XLI C.P.C., it is not feasible to pass interim order, unless the application for condonation of delay is considered and disposed of. C.R.P.No.3245 of 2010 is filed against the said order. 6. Sri V. Ramachandra Goud, learned counsel for the petitioner submits that the grant of police aid in favour of the respondents by the trial Court was totally impermissible in law. He contends that the suit was filed deliberately against a company, though the claim against the suit schedule property was by individuals, one of whom, happens to be the Managing Director of the petitioner. Learned counsel submits that the Director of the petitioner-company Sri N.K.Agarwal and a HUF headed by J.Shankar Lal Agarwal, filed O.S.No.133 of 2010 in the Court of Principal Senior Civil Judge, Ranga Reddy District, against the respondents herein, in relation to the same property, and that after hearing both the parties, the Court passed an order dated 28-04-2010 directing the parties to maintain status quo. He contends that whatever may have been the circumstances under which the Court of VIII Additional Senior Civil Judge, Ranga Reddy District, passed an order of temporary injunction, and granted police aid, there does not exist any basis therefor, in view of the developments, referred to above. 7. As regards the order dated 22-07-2010 passed by the lower Appellate Court, learned counsel contends that though Rule 3-A(3) of Order XLI C.P.C., places restrictions upon the Appellate Court to pass interim orders in an appeal, in case an application for condonation of delay is pending, there is no prohibition as such. Learned counsel submits that the order of temporary injunction passed by the trial Court cannot be sustained in law. He has addressed arguments on merits of the matter also, and stated the manner in which his clients have acquired rights and title over the property. He places reliance upon the judgment rendered by a Division Bench of this Court in Polavarapu Nagamani v. Parchuri Koteshwara Rao[1]. 8. Sri D. Prakash Reddy, learned Senior Counsel for the respondents, on the other hand, submits that the revisions are not at all maintainable in law. As regards C.R.P.No.2708 of 2010, learned Senior Counsel submits that as long as the order of temporary injunction passed by the trial Court remains, the petitioner cannot interfere with the possession of the respondents over the land, and the trial Court has taken steps to ensure that the order passed by it is not violated by granting police aid. So far as the other revision is concerned, learned Senior Counsel submits that the petitioner did not choose to move the matter almost for six months and insisted on the lower Appellate Court, to suspend the order of temporary injunction, even before notices were served and application for condonation of delay was allowed. According to the learned counsel, the plea of the petitioner is self-contradictory, in that, on the one hand, it disclaimed rights over the property, and on the other hand, is pressing for the vacation of the order of temporary injunction and other consequential orders. 9. The revisions arise out of two interlocutory orders, passed by the trial Court: One is the order in which temporary injunction under Order XXXIX Rules 1 and 2 C.P.C., was granted and the other is the one, through which, police aid is granted under Section 151 C.P.C. Against the first order the petitioner approached the Court of District Judge, Ranga Reddy District, by way of appeal with delay. The Appellate Court passed an order dated 22-07-2010, refusing to suspend the operation of the order of temporary injunction. Therefore a revision is filed before this Court. Against the second order, revision is filed straightaway. 10. Coming to the revision filed against the order granting police aid, it may be noted that there is no specific provision as such, in C.P.C., to enable the trial Court to grant police aid for ensuring that the interlocutory orders passed by it are not violated. It is almost in the realm of discretion of the Court, referable to Section 94(e) and Section 151 C.P.C., that such orders are passed. Facility is created under Rule 2-A of Order XXXIX C.P.C., limited for punishing the violators of the order of temporary injunction. 11. Recently a Division Bench of this Court examined the matter on this aspect, in detail, in Polavarapu Nagamani’s case (1 supra). Learned counsel for the petitioner places heavy reliance on that. After discussing the matter at length and examining the purport of the relevant provisions of law and the precedents, the Division Bench held inter alia, as under; “Para-24: …The Courts in India have repeatedly held that the police have no role in civil adjudication, and therefore, the Courts should be very very cautious and vigilant not to introduce police intervention in civil adjudication in indirect manner at the instance of a clever and resourceful plaintiffs. In view of this, we direct all the civil Courts in the State of Andhra Pradesh to exercise abundant caution in dealing with interlocutory applications filed by the party obtaining an order of injunction seeking police protection. For the guidance of all the civil Courts, we hold and lay down as under. (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 CPC 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, and 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. Urvashi Gulati, (2001)7 SCC 530 and Anil Ratan Sarkar v. Hirak Ghosh, (2002) 4 SCC 21, 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”. 12. According to guideline No.1, an application for police aid would not at all lie for enforcing an order of temporary injunction, and the only alternative is, to take recourse to the remedy under Rule 32 of Order XXI, or Rule 2-A of Order XXXIX C.P.C. However, as per the second one, such application can be filed, but the Courts must not pass orders on such applications, as a matter of course. 13. So far as the guideline No.3 is concerned, in a way, it has widened the scope of the existing law. Hitherto, an application for police protection was maintainable only in support of an order of temporary injunction, which is made absolute. The Division Bench, however, made it possible to seek police protection in support of an ad interim injunction also. However, a rider was added to the effect that an order in this regard can be passed subject to proof. The standard of proof which is necessary for this purpose is mentioned in the fourth guideline. The question as to whether a trial, in which a party can be required to discharge the burden of such a standard can take place at that stage of proceedings, particularly when the order of temporary injunction itself is not preceded by such a trial; is a matter, which another Division Bench or a Full Bench may consider, as and when the occasion may arise. 14. Till the year 1971, the view was that injunctions, whether temporary or permanent in nature, granted by Civil Courts cannot be enforced with the aid of police. In an unreported judgment in Crl.R.P.No.67 of 1959, (Paturu Venkateswarlu v. D. Sulochanamma) an observation was made even to the effect that the police are not bound to obey any directions of the Court, in the absence of statutory obligation to do so and a Civil Court would be stultifying itself by giving directions which may not be complied with. 15. I n R. Audemma v. P. Narasimham[2], a Division Bench comprising of Justice Gopal Rao Ekbote and Justice Ramachandra Rao, reversed that position. It was held that exercise of power by a Civil Court under Section 151 C.P.C., to grant police aid, for enforcement of orders passed by the Civil Courts, is necessary and it would be within the frame work of law. Repelling the argument, that the remedy under Order XXXIX Rule 2(3) is sufficient for enforcing the orders of temporary injunction; and dissenting from the view expressed by a learned single Judge, in Paturu Venkateswarlu’s case, the Division Bench observed “…With great respect we are unable to agree with this reasoning. It has to be noticed that O.39, R.2(3) Civil P.C. provides only for punishment by attachment of the property or by detention in civil prison of the person who committed breach. But it does not further provide for implementation of the order of injunction itself. Order 39, Rule 2 (3) cannot be said to be an express provision with respect to implementation of the order of injunction, but is only a provision which provides penalty for disobedience of the order. In such a case there being no other express provision in the Code for enforcement of the order, it is not only proper but also necessary that the Courts should render all aid to the aggrieved party to derive full benefits of the order. Though the order of injunction under Order 39, Civil P.C. is only interim in nature, still it clothes the person who obtained the order with certain rights and he is entitled to enforce the aforesaid right against the party who is bound by the order. No doubt in such a case, the aggrieved party himself could approach the police authorities to prevent obstruction to the enforcement of the order or to the exercise of the right which he derives under the order of Court. But we do not see why when the same person brings to the notice of the court that enforcement of the order is sought to be prevented or obstructed, the court should not exercise its inherent power under Section 151, Civil P.C. and direct the police authorities to render all aid to the aggrieved party in the implementation of the Court’s order. In our opinion the exercise of such power is necessary for the ends of justice or to prevent abuse of the process and the civil court has ample jurisdiction to pass such order under Sec.151, Civil P.C. The learned Judge’s observation “that the police are not bound to obey any directions of the court in the absence of any statutory obligation to do so and a civil court would be stultifying itself by giving directions which may not be complied with”, with great respect, cannot be said to be correct. Inasmuch as we are of the opinion that such a direction to the police authorities could be given under the inherent powers of the court under Section 151, Civil P.C. the police are bound to obey such directions”. (emphasis supplied) 16. Support was drawn from the judgment of the Supreme Court and observations of the Court of Appeal, which run; “The inherent powers of the Court are in addition to the powers specifically conferred on the Court by the Code. They are complementary to those powers and therefore it must be held that the Court is free to exercise them for the purpose mentioned in Sec.151 of the Code when the exercise of those powers is not in any way in conflict with what has been expressly provided in the Code or against the intentions of the Legislature”. (See Padam Sen v. State of Uttar Pradesh[3]) “I hold it to be the duty of the Commissioner of police, as it is of every chief constable to enforce the law of the land …..but in all the things he is not the servant of anyone, save of the law itself. The responsibility for law enforcement lies on him. He is answerable to the law and to the law alone.” (See R. v. Metropolitan Police Commissioner[4] ) Similar view was taken by the Madras High Court, in several judgments. 17. Instances were noticed, where despite the order of a Civil Court granting police protection, there was indifference on the part of the police. The question as to whether an aggrieved party, viz., a plaintiff in a suit can approach this Court by filing a writ petition for directions to the police, to accord to the directions of Civil Courts; fell for consideration in Satyanarayana v. S.H.O., P.S. Santhoshnagar[5],. A Division Bench comprising of Justice K. Madhava Reddy and Justice Punnayya, extensively referred to the judgment in Audemma’s case (2 supra), and by deriving support from it, went a step further, and held that a writ petition does lie. Reliance was placed upon the judgment of the Supreme Court in T.C. Basappa v. T. Nagappa[6] and Satyanarayan v. Mallikarjun[7]. The discussion was summed up as under: “Para-7: … The power which a civil court has under Section 151 C.P.C., the High Court has in much larger measure under Article 226 of the Constitution. We have, therefore, no hesitation in concluding that this court has ample jurisdiction, to issue a writ or direction to all the authorities including the police within the State to enforce the orders of the civil court as confirmed by the High Court in a civil revision petition and maintain the rule of law. The police authorities are therefore bound to give all assistance to the appellant to enforce and see that the orders of this court as confirmed in C.R.P.No.3258/81 are implemented and any enquiry or report of any other authority, revenue or police cannot be put as an excuse for not rendering the required help to the appellant to maintain his possession. This order will be subject only to the final orders of the Civil Court in O.S.No.3770/80”. 18. In Polavarapu Nagamani’s case (1 supra), decided recently by another Division Bench, the following observation was made, with reference to Audemma’s case (2 supra): “Para-21. The decision in Audemma’s case (supra), was rendered when the amendments to CPC by Central Act No.104 of 1976 were not even contemplated. In 1976, Rule 2A (extracted herein above) providing for consequence of disobedience or breach of injunction was inserted. In our view, whether or not the civil Court would be justified to direct police protection for enforcement of an order of injunction, even though there was Order XXXIX Rule 2(3) (which has now been omitted by Act 104 of 1976), after the Parliament inserted Rule 2A in Order XXXIX, in our opinion, Audemma’s case (supra) no more holds the field”. 19. It becomes debatable as to whether one Division Bench can hold that the judgment rendered by another Division Bench in earlier case does not hold the field, and thereby overrule it; may be by implication. The settled principle is that, whenever a doubt is entertained as to the correctness of a judgment rendered by a Bench of particular strength, by another Bench of equal strength, the matter has to be referred to a Bench of Higher strength. It is a different matter that the Bench of same strength can refuse to follow a precedent, emerging from a similar Bench, in case it is found that it is contrary to law, laid down by a superior Bench, or found to be per incuriem. 20. Another aspect is that the only reason stated in Polavarapu Nagamani’s case (1 supra), to treat the judgment in Audemma’s case (2 supra) as no longer holding the field is that Rule 2-A was introduced in Order XXXIX C.P.C. Provision for punishment existed earlier thereto also, and it was found to be not the only remedy. Be that as it may, Audemma’s case (2 supra) stood approved by another Division Bench in Satyanarayan’s case (7 supra) in the year 1982, by which time, the C.P.C., was already amended in the year 1976, that Their Lordships felt that it did not make any difference. It appears that the judgment in Satyanarayan’s case (7 supra) was not brought to the notice of this Court, when it decided Polavarapu Nagamani’s case (1 supra). At any rate, the recent case, has, in a way, widened the scope of Audemma’s case (2 supra), when it said that police aid can be sought in support of ad interim orders of injunctions also. 21. For the purpose of the present case, it is sufficient to rely upon guideline Nos.2 and 3, which enable a party to seek police aid, even in support of an order of ad interim injunction. According to them, the Civil Court can pass an order, granting police aid, if the circumstances warrant. The occasion to require the respondents to discharge the burden of proof in this regard is obviated, on account of the fact that though the petitioner was very much aware of the order of ad interim injunction, which in turn, was made absolute, it has not chosen to enter appearance or to seek vacation thereof. 22. The requirement to discharge the burden must be read in the context of the resistance offered by a respondent in an application filed for police protection. It is axiomatic that if the respondent in an application under Order XXXIX Rules 1 and 2 C.P.C. has not chosen to enter appearance and contest it, the doors of the Court cannot be shut to the petitioner to seek enforcement of the order of injunction; and permit the respondent therein to violate the same. The occasion to record evidence may arise after the respondent in such application enters appearance, and it would depend upon the nature of plea, he may take. The petitioner herein can enter appearance in the trial Court and pursue the remedies. 23. So far as the order challenged in C.R.P.No.3245 of 2010 is concerned, the petitioner laid much emphasis upon the orders passed in I.A.No.122 of 2010 in O.S.No.133 of 2010 passed by the Court of Principal Senior Civil Judge, Ranga Reddy District, and insisted that the order of ad interim injunction passed therein be suspended. It is not in dispute that the appeal was filed with a delay of more than six months. By the time the petitioner insisted for suspension of the ad interim injunction, the respondents were not even served with notices in the appeal, though caveat was filed. The petitioner cannot choose his own time and press for interim orders. If it did not feel urgency or necessity for six months, it cannot require the lower Appellate Court to pass interim orders disregarding Rule 3-A of Order XLI C.P.C. 24. It may be true that there are exceptions to such a Rule, but the facts must justify the deviation therefrom. A case must be made out to the effect that the matter cannot brook the delay, in serving notice on the application filed under Section 5 of the Limitation Act. Hardly any explanation, worth its name, was forthcoming from the petitioner. It is not as if the lower Appellate Court dismissed any specific application. The order was passed in relation to a request made on behalf of the petitioner herein, to suspend the order. In case the delay is condoned, the lower Appellate Court would have the occasion to address itself, to the merits of the matter. On the other hand, if the application filed for condonation of delay is dismissed, the appeal itself will stand rejected. Therefore, this Court is not inclined to interfere with the orders under revision. 25. The revisions are accordingly dismissed. There shall be no order as to costs. _______________________ L. NARASIMHA REDDY, J. Dt. 11-08-2010 Note: L.R copy to be marked. (B/O) KO [1] 2010 (2) ALD 41 (DB) [2] AIR 1971 AP 53 [3] AIR 1961 SC 218 [4] (1968) 1 ALL. ER [5] AIR 1982 AP 394 [6] AIR 1954 SC 440 [7] AIR 1960 SC 137