1 IN THE HIGH COURT OF KARNATAKA AT BANGALORE DATED THIS THE 9 TH DAY OF JULY 2014 BEFORE THE HON BLE MR. JUSTICE DILIP B BHOSALE BETWEEN W.P.NO.31809/2014 (GM-CPC) 1. MOHAMMAD FAZLULLA AGED ABOUT 70 YEARS RESIDING AT TUMKUR ROAD PAVAGADA TOWN, TUMKUR DISTRICT-561202 2. MOHAMMAD ALTAF AGED ABOUT 63 YEARS R/AT RAIN GAUGE EXTENSION PAVAGADA, TUMKUR DISTRICT-561202 3. MOHAMMAD KHASIM @ ZEELANI AGED ABOUT 60 YEARS R/AT SIRA ROAD, PAVAGADA TUMKUR DISTRICT-561202 4. MOHAMMAD SADIQ AGED ABOUT 58 YEARS 5. MOHAMMAD NOORULLAH AGED ABOUT 57 YEARS PETITIONERS NO.4 AND 5 ARE RESIDING BEHIND BAPUJI HIGH SCHOOL PAVAGADA TOWN TUMKUR DISTRICT-561202... PETITIONERS (BY SRI A V GANGADHARAPPA, ADV.,)
2 AND SMT. A.T. SARALAKUMARI W/O.P. VENUGOPALA SHETTY D/O.A.T.THIMMAPPA SHETTY AGED ABOUT 48 YEARS R/AT BRAHMINS STREET PAVAGADA TOWN TUMKUR DISTRICT-561202... RESPONDENT THIS W.P. FILED UNDER ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA PRAYING TO CALL FOR THE RECORDS AND PROCEEDINGS OF THE CASE; QUASH THE ORDER DTD.31.5.2014 PASSED BY THE COURT OF THE SENIOR CIVIL JUDGE (ITINERARY) AT PAVAGADA ON I.A.NO.II IN O.S.NO.19/2012 CERTIFIED COPY OF WHICH IS PRODUCED AS ANNEX-J AND ETC., THIS W.P. COMING ON FOR PRELIMINARY HEARING, THIS DAY, THE COURT MADE THE FOLLOWING: PC: Heard learned counsel for petitioners. This writ petition is directed against the order dated 31-5-2014, passed on I.A.No.2 in O.S.No.19/2012, whereby the Court below has issued direction to the Circle Inspector of Police, to render necessary help and assistance to the plaintiff in implementing the order dated 2-3-2013 passed under Order 39 Rule 1 and 2 of the Code of Civil Procedure (for short CPC ).
3 2. It is not in dispute that there is an order of injunction passed against the petitioners on the application filed by respondent-plaintiff under Order 39 Rule 1 and 2 whereby, they are restrained from interfering or meddling with the respondent-plaintiff s peaceful possession and enjoyment of suit schedule properties in any manner till disposal of the suit. It is also not in dispute that the petitioner-defendants have filed Misc. Appeal No.15/2013 before the District Court at Tumkur against the order dated 02-03-2013 and the appeal is pending. Learned counsel for the petitioners fairly states that so-far the appellate Court has not granted interim stay to the order dated 02-03-2013. It is in this backdrop, the respondent-plaintiff made the following prayer in I.A.No.2: For The reasons sworn to in the accompanying affidavit, the applicant prays the Hon ble Court to allow this application and grant police aid to the applicant by directing Sub-Inspector, Pavagada police station, Pavagada to enforce Temporary Injunction granted on I.A.No.1 on 2/3/2013 against the respondents in violation, in the ends of justice and equity.
4 3. Learned counsel for the petitioners at the outset invited my attention to the memo dated 1-2-2014 whereby, the plaintiff sought deletion of reference to Order 39 Rule 2A from her application (I.A.No.2). In otherwords, the plaintiff requested to treat her application (IA.No.2) under Section 151 of CPC. He, therefore, submitted that the order granting police protection for implementation of the order of injunction dated 2-3-2013 is wrong and illegal. He then submitted that, in any case, when a remedy under Order 39 Rule 2A of the CPC is provided against the breach of an order of injunction, it was wrong on the part of the respondent-plaintiff to seek police protection for implementation of the interim injunction. He submitted that in the face of the provisions contained in Rule 2A of Order 39 of CPC, the Court below was wrong in invoking the powers under Section 151 of the CPC and grant police protection. In support of his contention, he placed reliance upon the judgment of the Supreme Court in Kanwar Singh Saini vs. High Court of Delhi, (2012) 4 SCC 307 and the judgment of this Court in Muniyappa.H vs. M.Subbarayan
5 since deceased by his LRs., ILR 2007 Kar.3068. He submitted that the Court below either ought to have rejected the application as not maintainable or atleast could have conducted enquiry contemplated under Order 39 Rule 2A of the CPC and since that has not been done, it was not open to provide police protection as is done by the impugned order. 4. Even before I heard this matter on merits, I had asked learned counsel for the petitioners whether it is possible to make a statement/submission, on instructions, that the petitioners shall abide by the order dated 2.3.2013 of injunction granted by the Court below as long as the said order is in force or is not set-aside in appeal. Though he did not answer the query, he submitted that as long as he is enjoying his own property, there is no question of interfering with the possession of the plaintiff. 5. It is in this backdrop, I have perused the affidavit in support of the application. In the affidavit the respondent-plaintiff has stated that she being a woman
6 and all alone, does not feel safe and is unable to withstand illegal attitude of the respondents, and, therefore, she is not able to enjoy her property. It is not her case that the petitioners have encroached upon any portion of the land in respect of which an order of injunction has been granted. Her grievance is only that she is not allowed/able to enjoy peacefully the suit property and in this backdrop, she has filed an application seeking police protection for implementation of the order. It may be true that in a given case the party, in whose favour order of injunction has been granted, can approach Court for seeking action under Order 39 Rule 2A, but that does not necessarily mean that one should adopt such remedy and/or has no other remedy. A remedy of seeking police protection for implementation of the order, pending hearing of the suit is also available in law. Whether to grant such order is the issue which court, dealing with the prayer, has to decide it in the light of facts and circumstances of the case. In the present case, respondent-plaintiff being a woman she thought it more safe and appropriate to approach the
7 Court, seeking police help for implementation of the order than filling an application under Order 39 Rule 2A. I do not find anything illegal/wrong in the order warranting interference by this Court in writ jurisdiction. Judgment relied upon by learned counsel in Kanwar Singh Saini (supra), has no application to the facts of the present case. Similarly, the order passed by this Court in H.Muniyappa (supra) is also of no avail to the petitioners since it states about the procedure to be followed in the proceedings under Order 39 Rule 2A. In the present case, the application is under Section 151 of CPC seeking police help, and therefore, the judgments relied upon by learned counsel for the petitioners are of no avail to the petitioners. In the circumstances, writ petition is dismissed. Sd/- JUDGE Ia