IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MR. JUSTICE K.SURENDRA MOHAN THURSDAY, THE 16TH JUNE 2011 / 26TH JYAISHTA 1933 WP(C).No. 13493 of 2011(J) --------------------------------------- PETITIONER(S): ------------------------ MADHUSOODHANAN.V, AGED 53 YEARS, S/O VISWAMBHARAN, RESIDING AT KOTTOOR VEEDU, PERUMPUZHA CHERRY, ELAMPALLOOR VILLAGE, KUNDARA, KOLLAM DISTRICT. BY ADV. SRI.M.K.CHANDRA MOHANDAS SRI.R.NIKHIL RESPONDENT(S): -------------------------- 1. THE SUPERINTENDENT OF POLICE(RURAL), KOLLAM-691 001. 2. THE CIRCLE INSPECTOR OF POLICE, KUNDARA POLICE STATION, KUNDARA, KOLLAM-691 501. 3. THE SUB INSPECTOR OF POLICE, KUNDARA POLICE STATION, KUNDARA, KOLLAM-691 501. 4. ANIL KUMAR, S/O NATARAJAN, MECHIRA VEEDU, PERUMPUZHA CHERRY, ELAMPALLOOR VILLAGE, PERUMPUZHA, KOLLAM DISTRICT-691 504. 5. KUNJIRAMAN, S/O NARAYANAN, POIKAYIL PADINJATTETHIL, PERUMPUZHA CHERRY, ELAMPALLOOR VILLAGE, PERUMPUZHA, KOLLAM DISTRICT-691 504. 6. SURESH, S/O KUNJIRAMAN, POIKAYIL PADINJATTETHIL, PERUMPUZHA CHERRY, ELAMPALLOOR VILLAGE, PERUMPUZHA, KOLLAM DISTRICT-691504. R1 TO R3 BY GOVERNMENT PLEADER SMT.C.M. CHARISMA R5 & R6 BY ADV. SRI.C.KHALID SRI.T.P.SAJID THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 16/06/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: sts 2/- -2- WP(C)NO.13493/2011 APPENDIX PETITIONER'S EXHIBITS: P1 COPY OF THE JUDGMENT IN O.S.NO.434/2007 ON THE FILES OF THE HON'BLE ADDITIONAL SUB COURT, KOLLAM. P2 COPY OF THE EXECUTION APPLICATION NO.1339/10 IN E.P.NO.387/09 ON THE FILES OF THE HON'BLE COURT,KOLLAM. P3 COPY OF THE “OZHIPPU KAICHEETTU” FILED BY THE AMIN IN EXECUTION APPLICATION NO.1339/10 IN E.P.NO.387/09 ON THE FILES OF THE HON'BLE SUB COURT, KOLLAM. P4 COPY OF THE COMPLAINT SUBMITTED BY THE PETITIONER BEFORE THE 1ST RESPONDENT. RESPONDENT'S EXHIBITS: R5 COPY OF THE “CHEMOTHERAPY PROTOCOL” DATED 10/5/2011 OF MEDICAL COLLEGE HOSPITAL,TRIVANDRUM. R5(A) COPY OF THE RATION CARD NO.ARD NO.340/1207161023 R5(B) COPY OF THE ELECTRICITY BILL NO.345354 DATED 25/4/2011. R5(C) COPY OF THE ASSIGNMENT DEED DATED 15/9/2004. /TRUE COPY/ P.S.TO.JUDGE sts R. BASANT & K. SURENDRA MOHAN, JJ. ------------------------------------------------- W.P.(C) No.13493 of 2011-J ------------------------------------------------- Dated this the 16th day of June, 2011 JUDGMENT Basant,J. The petitioner has come to this Court praying for issue of directions under Article 226 of the Constitution of India to respondents 1 to 3 to afford police protection to the petitioner against illegal obstructions to the enjoyment of property by the petitioner on the part of respondents 4, 5 and 6. 2. According to the petitioner, the 4th respondent had borrowed amounts from him. The amount was not repaid. The petitioner was thus obliged to go to the civil court to claim recovery of the amount. An order of attachment prior to judgment was obtained. The 4th respondent did not contest the suit. He remained ex parte. An ex parte decree was passed against the 4th respondent in favour of the petitioner. The petitioner took up steps in execution. The 4th respondent did not contest the execution proceedings also. With the help of the police the property had been delivered to the petitioner. There W.P.(C) No.13493 of 2011 -: 2 :- are subsequent obstructions from respondents 4 to 6. It is with these allegations that the petitioner has come to this Court seeking issue of directions under Article 226 of the Constitution in his favour. 3. Notice was ordered to the respondents. Respondents 5 and 6 have entered appearance belatedly through a counsel. The 4th respondent, true to his track record in proceedings before the court below, has not chosen to appear before this Court also. The learned counsel for respondents 5 and 6 submits and a counter affidavit to that effect has already been filed (to which a reply affidavit has also been filed) that respondents 5 and 6 are the victim of naked acts of collusion between the petitioner and the 4th respondent. According to him, the 5th respondent is the father and the 6th respondent is the son. They are dalits belonging to the economically weaker section of society. According to respondents 5 and 6, the 4th respondent is a money lender. On account of financial stringency the 5th respondent was compelled to approach the 4th respondent for a loan. The 5th respondent was obliged, to secure the loan, to execute a document. It is the case of the 5th respondent that it was not a genuine sale transaction; but it was only a transaction W.P.(C) No.13493 of 2011 -: 3 :- on paper with the understanding that the property shall be returned when the amount is repaid. Respondents 5 and 6 continued to occupy the building in the property and enjoy the property. They are blissfully aware of the transaction between the petitioner and the 4th respondent. After the interim order was passed by this Court, the police have been taken coercive action against respondents 5 and 6. The learned counsel submits that there has been no proper delivery. The delivery that is recorded is only a sham delivery and respondents 5 and 6 continue to occupy the building and the property. Their possession and enjoyment was interfered with by the police after the interim orders were issued by this Court. That interim order was passed at a time when respondents 5 and 6, though served, had not appeared before court. In these circumstances, the petitioner has come to this Court without bona fide. Cleanliness is not virtue that this Court invent in the hands of the petitioner. At any rate, the petitioner must be left to seek his remedy from the civil court and should not be permitted to arm himself with an order of police protection on the basis of the sham delivery which he claims to have obtained through court. Respondents 5 and 6 are taking necessary steps to initiate proceedings before W.P.(C) No.13493 of 2011 -: 4 :- the civil court. It is only after the interim order dated 30/5/11 passed by this Court that respondents 5 and 6 came to know of the collusion between the petitioner and the 4th respondent and the orders secured at their back. The police may not be left to decide the civil disputes between the parties. The police may not be permitted to arm themselves with any order of this Court to claim authority for their otherwise illegal action. In these circumstances, this petition may be dismissed and the parties may be left to seek ordinary remedy of relief from the civil court. 3. We do not intend to express any final opinion on merits of the dispute. 4. The short question we choose to consider is whether the extraordinary constitutional jurisdiction under Art.226 of the Constitution can or need be invoked. Ordinarily when the parties have civil disputes, this Court will not be invoking the jurisdiction under Art.226 of the Constitution and shall be leaving the parties to settle the dispute by initiating appropriate proceedings before court. We are not adverting to the various contentions raised. Suffice it to say that we are convinced that this is not a fit case where such extraordinary constitutional jurisdiction can or ought to be invoked. We are satisfied that W.P.(C) No.13493 of 2011 -: 5 :- this petition only deserves to be dismissed without prejudice to any contention of the petitioner or respondents 5 and 6. 5. In the result, this writ petition is dismissed with the above observations. The interim order dated 30/5/11 is recalled. Sd/- R. BASANT (Judge) Sd/- K. SURENDRA MOHAN (Judge) Nan/ //true copy// P.S. to Judge