* THE HON’BLE SRI JUSTICE V.V.S. RAO AND THE HON’BLE SRI JUSTICE B.N.RAO NALLA CIVIL MISCELLANEOUS APPEAL Nos.1021 AND 1128 OF 2009 % 24.11.2009 Between: Polavarapu Nagamani and others … Appellants AND Parchuri Koteshwara Rao and others … Respondents Counsel for the Appellant: Sri C.R.Pratap Reddy Counsel for the Respondents: < Gist: > Head Note: ? CITATIONS: 1. AIR 2009 SC 2330 2. AIR 2005 Madras 461 3. AIR 2006 Madras 186 4. 2009 (5) ALD 641 5. 2002 (2) ALD (Crl.) 706 (A.P.) 6. AIR 1918 All 152 : ILR 40 All 648 7. AIR 1971 AP 53 8. AIR 1982 AP 394 9. 1998 (1) ALT 461 10. 2000 (2) ALT 606 11. 1993 (2) APLJ 5 (SN) 12. AIR 1962 SC 527 13. (2001) 7 SCC 530 14. (2002) 4 SCC 21 THE HON’BLE SRI JUSTICE V.V.S.RAO AND THE HON’BLE SRI JUSTICE B.N.RAO NALLA CIVIL MISCELLANEOUS APPEAL Nos.1021 AND 1128 OF 2009 24.11.2009 Between: Polavarapu Nagamani and others … Appellants AND Parchuri Koteshwara Rao and others … Respondents THE HON’BLE SRI JUSTICE V.V.S.RAO AND THE HON’BLE SRI JUSTICE B.N.RAO NALLA CIVIL MISCELLANEOUS APPEAL Nos.1021 AND 1128 OF 2009 COMMON ORDER: (per Hon’ble Sri Justice V.V.S.Rao) Introduction These two miscellaneous appeals are being disposed of by this common order as they arise between the same parties out of two separate interlocutory orders in the same suit. The appellants are plaintiffs and respondents are defendants. They are referred to as such in this order. Be it noted that initially this Court suspended the order in I.A.No.412 of 2009 whereunder the Court below directed police protection to defendants. Then they moved an application to vacate the interim suspension. At that stage itself, with the consent of the counsel for both the sides, the matter is heard finally. These two appeals involve an important question with regard to power of civil Court to direct the police to give police protection to plaintiffs or defendants to safeguard the subject property in the suit pending adjudication. What are the remedies available to a party when an order of injunction is violated or there is a threat of such violation? When a party to the suit alleges violation of an order of ad interim injunction granted by civil Court, what is the standard of proof required for the Court to exercise its inherent powers under Section 154 of Code of Civil Procedure, 1908 (CPC) and direct the police to give protection to safeguard the property and whether the Court can ignore the specific provisions contained in CPC and exercise powers under Section 151 of CPC. These and other are the questions that arise for consideration. Before taking up these issues, the background facts may be noticed as summarized in the ensuing paragraphs. Brief facts of the case Plaintiffs 1 to 3 are legal heirs/representatives of one Polavarapu Nageswara Rao and plaintiff No.4 is legal representative of Mandava Ramaiah. These four persons instituted O.S.No.29 of 2009 on the file of the Court of the Special Judge for Trial of Offences under Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act – cum - V Additional District & Sessions Judge, Medak at Sanga Reddy, against 118 defendants for partition, separate possession and cancellation of as many as 24 sale deeds executed by some defendants in favour of 40 defendants in the suit. In the suit, the plaintiffs prayed for a preliminary decree partitioning plaint schedule properties admeasuring Acs.1,357.52 guntas comprised in as many as 74 survey numbers (74 fields) of Hakimpet fields of Yeldurthy Mandal in Medak District (hereafter called, plaint schedule property). The plaintiffs alleged that their predecessors and 31 others purchased a total extent of Acs.2.054.32 guntas of land in Hakimpet village from successors of Syed Ahmed Ali Khan under registered sale deed dated 24.06.1960, that considering the declarations filed by the vendees the Land Reforms Tribunal under Andhra Pradesh Land Reforms (Ceiling on Agricultural Holdings) Act, 1973, declared 14 of them as surplus land holders to the extent of Acs.574.22 guntas, it was taken over by the Government, that the Government of Andhra Pradesh acquired Acs.231.68 for the purpose of submergence of Haldivagu project after paying the compensation, that all the 33 owners filed O.P.No.211 of 2005 on the file of the Court of Principal District Judge, Medak, seeking enhancement of the compensation, which was allowed and that E.P.No.91 of 2007 filed by them by executing the decree in O.P.No.211 of 2005 is pending. They further alleged that the remaining extent of Acs.1.357.52 is in joint and common possession of all the purchasers, that the shares are already decided as per the contribution to the total sale consideration, that as many as 21 original purchasers died leaving behind their successors (who are defendants to the suit) that some of the purchasers sold the property under various sale deeds and that some of the defendants are claiming their right under the Wills executed by some purchasers and that in spite of demands made by plaintiffs in second week of January, 2009, defendants 1 to 48 and defendants 100 to 118 postponed the partitioning of the plaint schedule property. They further allege that in March, 2009, defendant No.16 tried to dispossess the plaintiffs who are cultivating the land which had been in possession and therefore, they lodged a complaint with Deputy Superintendent of Police (DSP), Toopran, who advised the plaintiffs to approach the civil Court. They also allege that defendants are trying to further alienate the property to third parties and especially land in survey No.120 which contains potential mineral of white quartz and is very valid. Some of the defendants, namely, defendants 1, 2, 3, 6, 8, 10, 11, 15, 16, 17, 22, 27 to 31 and 38 filed written statements contesting the suit. Their case is that the entire plaint schedule land was partitioned during the period of Polavarapu Nageswara Rao, who was heading the village, under unregistered document which was acted upon and therefore, they denied the plea of joint possession and ownership. They also allege that plaintiffs are claiming re-partition dishonestly though all the original purchasers or their successors were in possession of their respective shares and cultivating the lands separately. Along with the suit, the plaintiffs filed two applications. I.A.No.206 of 2009 was filed seeking ad interim injunction restraining defendants from interfering with the plaintiffs’ possession. This application is pending before the lower Court. I.A.No.207 of 2009 was filed seeking ad interim injunction restraining defendants from changing the nature of land or digging or mining in the plaint schedule property. On 09.04.2009, the Court below passed an ex parte ad interim injunction restraining the defendants from changing the nature of the suit land in any manner until further orders. The defendants then filed a counter affidavit in first week of June, 2009, praying for dismissal of interlocutory application being I.A.No.207 of 2009. It was represented on their behalf that after obtaining an ex parte order, the plaintiffs allegedly did not allow the defendants cultivating the lands. Therefore on 28.04.2009, the lower Court disposed of I.A.No.207 of 2009 clarifying that plaintiffs shall not prevent defendants from carrying out agricultural operations in the land. The said one paragraph order reads as under. ORDER The advocate for some respondents represents that the interim order of this petition “not to change the nature of the land” is being misused by the petitioners and not permitting the respondents to cultivate the land. It is hereby clarified by the advocate of the petitioners that the respondents can do agricultural operations except alienating the suit land. Therefore, it is hereby ordered that the petitioners shall not prevent respondents from carrying out agricultural operations in the land pending disposal of the suit. Accordingly, this petition is disposed off. The above order is in appeal being C.M.A.No.1128 of 2009. The other appeal being C.M.A.No.1021 of 2009 is filed against I.A.No.412 of 2009. This application was filed by 9 defendants (defendants 3, 5, 7, 10, 15, 16, 22, 107 and 110) under Section 151 read with Order XXXIX Rule 2A of CPC, praying the lower Court to direct police authorities of P.S., Yeldurthy, to render protection to them to help, maintain possession and cultivation in respect of which they are in possession according to pahanis and pattadar pass books and title deeds (PPBs/TDs) and that the plaintiffs may be prevented and bound over for keeping peace and not to prevent the agricultural operation of the petitioners pending disposal of the suit. The Court below by an order dated 11.09.2009 directed P.S., Yeldurthy, to give police protection. Aggrieved by which, the plaintiffs – as mentioned supra; are in appeal before this Court. Submissions Learned counsel for the plaintiffs/appellants submits that the lower Court was in error in appreciating the scope of Order XXXIX Rule 2A read with Section 151 CPC. He would contend that when the 9 defendants who moved application did not give the boundaries of the lands, the Court ought not to have passed such an order as it would amount to permitting the police to interfere in the civil dispute pending in the Court. He would urge that I.A.No.412 of 2009 is not maintainable in law and that when I.A.No.206 of 2009 filed by plaintiffs is still pending, such an order could not have been granted and that trial Court was in error in granting police protection in a routine manner. He placed reliance on Food Corporation of India v Sukha Deo Prasad[1], Kannatti alias Ramasamy Gounder v Anai Gounder[2], Abdul Sukhure Bhai v Durai Kuppuswamy[3] and Vadlakonda Narender v SHO, P.S., Atmakur, Warangal District[4]. Learned counsel for concerned defendants/respondents 1 to 9 herein made the following submissions. There cannot be any difficulty in identifying the land of the parties as his clients sought relief of police protection in respect of the land in their possession according to pahanis and PPBs/TDs. The contesting respondents made out a case before the Court below that the plaintiffs along with anti social elements damaged the crop by tractor ploughing, in spite of directions from the Court not to interfere with agricultural operations. The plaintiffs did not plead a proper case for partition of plaint schedule properties and there was already a partition, in furtherance of which all the parties obtained PPBs/TDs and therefore, the suit itself is without any merits. The plaintiffs damaged the crop raised by contesting respondents forcing them to give a complaint to DSP., and then approached the trial Court seeking protection. When the trial Court exercised the power keeping in view the law and order, the same is not vitiated by any error apparent on the face of record. Principles of Law Every Court exercising civil jurisdiction is empowered to try all suits of civil nature unless it is barred from doing so. Remedies that can be given by civil Court or in correlation to the legal right and the legal injury, it could also be redressal for breach of contract or for declaration of a pre existing right. Civil judicial process mainly prescribed by CPC includes adjudication of the causes (suits) culminating in the Judgment and decree. Interlocutory redressal during pendency of the main suit is taken care of by Part III (incidental proceedings) consisting of Sections 75 to 78 and Part VI (supplemental proceedings) consisting of Sections 94 and 95. In addition to these, Order XXXVIII (arrest and attachment before judgment), Order XXXIX (temporary injunctions and interlocutory orders) and Order XIL (appointment of receivers) contain the procedure for effective exercise of powers conferred on the civil Court to deal with incidental and supplemental proceedings. A question often asked is what is the role of police in effective exercise of civil Court’s powers to execute decrees and to give effect to and enforce its interlocutory orders passed under Part III or Part VI of CPC. Section 94 of CPC reads as under. 94. Supplemental proceedings.—In order to prevent the ends of justice from being defeated the Court may, if it is so prescribed,— (a) issue a warrant to arrest the defendant and bring him before the Court to show cause why he should not give security for his appearance, and if he fails to comply with any order for security commit him to the civil prison; (b) direct the defendant to furnish security to produce any property belonging to him and to place the same at the disposal of the Court or order the attachment of any property; (c) grant a temporary injunction and in case of disobedience commit the person guilty thereof to the civil prison and order that his property be attached and sold; (d) appoint a receiver of any property and enforce the performance of his duties by attaching and selling his property; (e) make such other interlocutory orders as may appear to the Court to be just and convenient. The power to issue warrant to defendant to compel him to give security, to commit civil prison, to direct to furnish security, to grant temporary injunction and in case of disobedience commit the person to civil prison and attach and sell his property, to appoint receiver and/or to make such other interlocutory order as may appear to the Court just and convenient. Therefore, “to prevent the ends of justice from being defeated” the civil Court can pass any orders as specifically mentioned in Section 94 (a) to (d) and is also empowered to make any order which it appears to be just and convenient to meet the ends of justice. Section 95 is intended to prevent abuse of power of Court and makes a party obtaining temporary injunction or an order of arrest or an order of attachment without sufficient grounds, liable for compensation at the behest of the party who suffers arrest/attachment or temporary injunction. It is settled law that ordinarily no Court can pass an interlocutory order if it has effect or tend to be susceptible of an inference of pre-judging some important or sensitive issue in the main matter. Therefore, there cannot be any doubt that if need arises to enforce an order of temporary injunction a civil Court can always pass an order under Section 94(e) of CPC (besides Section 151 of CPC) directing the local police to give protection to the party who is threatened in spite of the Court order. But, in all cases filed under Section 151 of CPC or cases filed invoking Section 94(e) of CPC, the civil Court cannot grant an order directing the police to give protection to safeguard the property, which is subject matter of the suit. At this stage, we need to refer to Chapters III and VII of Specific Relief Act, 1963 deal with preventive relief and injunctions. Preventive relief is granted at the discretion of the Court by injunction, temporary or perpetual. As per Section 37(1) thereof, temporary injunctions may be granted at any stage of the suit. As per Section 37(2) thereof, perpetual injunctions can only be granted by decree whereunder the defendant is perpetually enjoined from the assertion of right or from the commission of an act, which would be contrary to the rights of the plaintiff. Section 37(1) lays down that temporary injunction can be granted at any stage of the suit and shall continue until further orders of the Court and are regulated by CPC. Sections 38 and 39 enumerate the conditions under which perpetual injunction and mandatory injunction respectively can be granted and Section 40 speaks of entitlement of the plaintiff to claim damages in addition to or in substitution of claim for injunction. In view of these provisions, though the relief of perpetual injunction and temporary injunction as preventive relief are treated as specific relief, the grant of temporary injunctions is regulated by CPC in Order XXXIX. Rule 1 of Order XXXIX of CPC indicates cases in which temporary injunction may be granted and Rule 2 thereof deals with injunction to restraining repetition or continuation of breach of contract or other injury of any kind. When a temporary injunction is grated by civil Court and there is a complaint of breach or disobedience of an order of injunction, what are the remedies available to the party obtaining injunction and what are the powers of the civil Court which granted injunction? Before dealing with this aspect, we may briefly point out the method and manner of executing the decree for perpetual injunction. Sub rule (1) of Rule 32 of Order XXI of CPC provides that where a party against whom a decree for injunction has been passed, wilfully failed to obey it, the decree may be enforced by his detention in civil prison or by attachment of property or by both. If an order for temporary injunction is disobeyed, what is the remedy? Order XXXIX Rule 2A of CPC provides that in the case of disobedience of a temporary injunction or breach of any terms on which injunction was granted, the Court may order the property of the person, guilty of disobedience or breach, to be attached and may also order such person to be detained in the civil prison for a term not exceeding three months. To our mind, Order XXI Rule 32(1) and Order XXXIX Rule 2A of CPC provide for similar consequences in the event of disobedience/breach. We may read these provisions in juxta position. Order XXI Rule 32(1) Order XXXIX Rule 2A 32. Decree for specific performance for restitution of conjugal rights, or for an injunction.—(1) Where the party against whom a decree for the specific performance of a contract, or for restitution of conjugal rights, or for an injunction, has been passed, has had an opportunity of obeying the decree and has wilfully failed to obey it, the decree may be enforced [in the case of a decree for restitution of conjugal rights by the attachment of his property or, in the case of a decree for the specific performance of a contract, or for an injunction] by his detention in the civil prison, or by the attachment of his property, or by both. 2-A. Consequence of disobedience or breach of injunction.—(1) In the case of disobedience of any injunction granted or other order made under Rule 1 or Rule 2 or breach of any of the terms on which the injunction was granted or the order made, of the Court granting the injunction or making the order, or any Court to which the suit or proceeding is transferred, may order the property of the person guilty of such disobedience or breach to be attached, and may also order such person to be detained in the civil prison for a term not exceeding three months, unless in the meantime the Court directs his release. ( 2 ) No attachment made under this rule shall remain in force for more than one year, at the end of which time, if the disobedience or breach continues, the property attached may be sold and out of the proceeds, the Court may award such compensation as it thinks fit to the injured party and shall pay t he balance, if any, to the party entitled thereto.] NB: Similarities in both the provisions are highlighted. A plain, literal and textual reading would show that the consequences that follow the disobedience of a decree for an injunction and the consequences that follow the case of disobedience of temporary injunction are the same. There cannot be any dispute that even a temporary injunction can be executed (enforced) by filing appropriate application under order XXI Rule 32(1) read with Order XXXIX Rule 2A of CPC. From this it follows that if a complaint is made by the party obtaining an order of temporary injunction that the party against whom an injunction order is made has disobeyed, the remedy is an application under Order XXXIX Rule 2A and an application under XXI Rule 32(1) is also not barred. Logically, if an allegation that an order of temporary injunction is disobeyed by other party, the remedy is not to grant police protection, it is only an application of Order XXI Rule 32(1) of CPC. Elaborate reason and rationale need not be attempted behind these two provisions made by the Parliament. In all civilized societies, the civil disputes are resolved by adversary adjudicatory process mandated by the law in a civil Court and not by the police. Indeed, the Supreme Court has on quite few occasions laid down the dicta that police cannot interfere in civil disputes (See S.Masthan Saheb v P.S.R.Anjaneyulu[5]). Therefore, the Parliament intentionally avoided conferring explicit power on the civil Court to direct police protection in the case of complaint of breach of an order of temporary injunction. The civil Court, however, is not, as already observed supra, precluded from exercising its power under Section 94(e) of CPC to pass any interlocutory order to be just and convenient including an order directing the police to provide protection to the party obtaining an order of injunction to enjoy the benefits under such an order. The question, however, is regarding the stage at which the civil Court granting an order of injunction can direct police protection? We proposed to deal with this aspect after noticing the relevant case law in this regard. In Goswami Goddhanlalji v Goswami Maksudan Ballabh[6], the Division Bench of Allahabad High Court probably for the first time considered the matter arising under Order XXXIX Rule 2(3) of CPC as it then existed. It was held therein that the civil Court has no power to order police to interfere the matter when there is alleged disobedience of injunction. It was also held that if the defendants disobey the order of the Court they are liable to the penalties mentioned in Order XXI Rule 32 and the Court could not order police to see that the decreeholders enjoyed their rights without interference on the part of the judgment debtors. If any breach of the peace was apprehended, that was a matter for judicial Magistrate and the Police and not for the civil Court. I n Rayapati Audemma v Pothineni Narasimham[7], a Division Bench of this Court on a reference by learned single Judge, considered the question as to whether a civil Court has jurisdiction or power to direct police to render aid for implementation of the order of the civil Court. The plea that civil Court has no jurisdiction under CPC to grant police aid with respect to implementation of the orders of the injunction was not accepted by Division Bench. Placing reliance on Section 151 of CPC which saves the inherent power of the Court to make such orders as may be necessary for the ends of justice or prevent abuse of process of Court. Disagreeing with Allahabad High Court’s view in Goswami Goddhanlalji (supra), the Division Bench held as under. "Order XXXIX Rule 2 (3) provides only for punishment by attachment of the properly 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 XXXIX 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 XXXIX of Civil Procedure Code 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.