NO POLICE AID PENDING ENQUIRY OF EXPARTE INJUNCTION = since I.A.No.379 of 2002 filed under Order 39 Rules 1 & 2 of C.P.C. filed for temporary injunction has not yet been decided on merits despite counter filed by the defendants, the Court below ought not to have granted police aid for enforcement of the order of the ad interim injunction dated 9.10.2002.
REPORTED IN /judis.nic.in/judis_andhra/filename=5839
THE HON'BLE Ms. JUSTICE G. ROHINI
Civil Revision Petition No.2181 of 2008
21-07-2008
Kasturi Venkata Subbaiah and 9 others.
Veerapareddy Yasodamma.
Counsel for the petitioners: Sri Nimmagadda Satyanarayana
Counsel for the respondent: Sri M. Balaji
:ORDER:
This Civil Revision Petition is directed against the order dated 10.4.2008
in I.A.No.454 of 2002 in I.A.No.379 of 2002 in O.S.No.66 of 2002 on the file of
the Court of the Senior Civil Judge, Rajampet.
The revision petitioners are the defendants in the suit filed by the
respondent herein for specific performance of agreement of sale in respect of
the suit schedule properties. Along with the suit, the plaintiff/respondent
herein filed I.A.No.379 of 2002 for grant of temporary injunction restraining
the defendants/revision petitioners from interfering with the suit schedule
property. The Court below granted ad interim injunction on 9.10.2002. The
defendants/revision petitioners filed their counters contesting the said
application for temporary injunction. While I.A.No.379 of 2002 for temporary
injunction was yet to be heard, the plaintiff/respondent herein filed another
application being I.A.No.454 of 2002 on 28.11.2002 for grant of police aid for
implementation of the order of ad interim injunction. The said application was
also opposed by the defendants/revision petitioners by filing a counter.
However, no final orders were passed on any of the said applications and they
were merely kept pending.
While so, on 20.6.2007 I.A.No.379 of 2002 filed for temporary injunction was
dismissed for non-prosecution by the plaintiff/respondent herein. Subsequently,
on an application made by the plaintiff/respondent herein, I.A.No.379 of 2002
was restored to file by order dated 10.4.2008. Surprisingly on the same day
i.e., 10.4.2008 the Court below allowed I.A.No.454 of 2002 also thereby granting
police aid for implementation of the order of ad interim injunction dated
9.10.2002.
The said order made in I.A.No.454 of 2002 is under challenge in this Civil
Revision Petition.
I have heard the learned counsel for both the parties and perused the
material on record.
There can be no dispute about the inherent powers of a Court to grant
police aid for implementation of its orders so as to meet the ends of justice
and to prevent abuse of process of the Court. Such a power can be exercised even
to enforce the order of ad interim injunction. However, the question is whether
the Court below is justified in granting police aid on 10.4.2008 on an
application filed in the year 2002 for the purpose of enforcement of ad interim
injunction dated 9.10.2002.
It is relevant to note that the defendants/revision petitioners filed
counter contesting the application for temporary injunction in the year 2002
itself. However, the application was kept pending for a long time and ultimately
it was dismissed for default on 20.06.2007. Thereafter, there was no order
in operation till the application was restored to file on 10.4.2008.
Even while seeking restoration, the plaintiff did not allege or establish
any attempt on the part of the defendants to violate the order of ad interim
injunction warranting grant of police aid. In the circumstances, what prompted
the Court below to grant police aid on 10.04.2008 on the basis of the
allegations made in the application filed in the year 2002 is ununderstandable.
It is also relevant to note that in I.A.No.454 of 2002 filed for police
aid, a counter was already filed by the defendants/petitioners herein.
However, even without referring to the said counter the court below allowed
I.A.No.454 of 2002 by a cryptic order which runs as under :
"Heard the learned counsel for the petitioner, and the counsel for the
respondents. The I.A.No.379/2002 is restored to file and injunction order
already granted on 9.10.2002 is continued. As there is injunction order pending
issued by this Court the bounden duty of this Court to protect its own order.
This Court has no alternative except to grant police aid to the petitioner to
protect the injunction order already granted on 9.10.2002 in I.A.No.379/2002.
In order to protect the own order of this Court and in view of the facts and
circumstances of the case, I have no hesitation to say that the petitioner
herein is entitled for the relief of police aid to protect the injunction
order already granted by this Court on 9.10.2002 in I.A.No.379 of 2002 and
thereby this petition merits to be allowed, and accordingly this petition is
allowed, in the circumstances without costs."
As rightly submitted by the learned counsel for the petitioners,
since
I.A.No.379 of 2002 filed under Order 39 Rules 1 & 2 of C.P.C. filed for
temporary injunction has not yet been decided on merits despite counter filed by the defendants, the Court below ought not to have granted police aid for enforcement of the order of the ad interim injunction dated 9.10.2002.
Particularly in the absence of any fresh material to show that there was any
attempt on the part of the defendants to violate the order of injunction, there
was absolutely no justification to grant police aid. Moreover, except observing
that since there is an order of injunction the Court is bound to protect its own
order by granting police aid, the Court below did not assign any reasons which
warranted granting the relief of police aid.
From the facts and circumstances of the case noticed above, I am of the opinion
that the Court below committed a grave error in granting police aid firstly,
without disposing of the application for temporary injunction on merits and
secondly without assigning any reasons for grant of such police aid. At any
rate, in the absence of any fresh material the impugned order granting police
aid on an application made in the year 2002, on the face of it, amounts to
erroneous exercise of jurisdiction conferred under law.
Viewed from any angle, the order under Revision being contrary to law is
unsustainable. Accordingly, the same is hereby set aside and the Civil Revision
Petition is allowed with a direction to consider and decide I.A.No.454 of 2002
after disposal of I.A.No.379 of 2002 filed for temporary injunction on merits.
No costs.
THE HON'BLE Ms. JUSTICE G. ROHINI
Civil Revision Petition No.2181 of 2008
21-07-2008
Kasturi Venkata Subbaiah and 9 others.
Veerapareddy Yasodamma.
Counsel for the petitioners: Sri Nimmagadda Satyanarayana
Counsel for the respondent: Sri M. Balaji
:ORDER:
This Civil Revision Petition is directed against the order dated 10.4.2008
in I.A.No.454 of 2002 in I.A.No.379 of 2002 in O.S.No.66 of 2002 on the file of
the Court of the Senior Civil Judge, Rajampet.
The revision petitioners are the defendants in the suit filed by the
respondent herein for specific performance of agreement of sale in respect of
the suit schedule properties. Along with the suit, the plaintiff/respondent
herein filed I.A.No.379 of 2002 for grant of temporary injunction restraining
the defendants/revision petitioners from interfering with the suit schedule
property. The Court below granted ad interim injunction on 9.10.2002. The
defendants/revision petitioners filed their counters contesting the said
application for temporary injunction. While I.A.No.379 of 2002 for temporary
injunction was yet to be heard, the plaintiff/respondent herein filed another
application being I.A.No.454 of 2002 on 28.11.2002 for grant of police aid for
implementation of the order of ad interim injunction. The said application was
also opposed by the defendants/revision petitioners by filing a counter.
However, no final orders were passed on any of the said applications and they
were merely kept pending.
While so, on 20.6.2007 I.A.No.379 of 2002 filed for temporary injunction was
dismissed for non-prosecution by the plaintiff/respondent herein. Subsequently,
on an application made by the plaintiff/respondent herein, I.A.No.379 of 2002
was restored to file by order dated 10.4.2008. Surprisingly on the same day
i.e., 10.4.2008 the Court below allowed I.A.No.454 of 2002 also thereby granting
police aid for implementation of the order of ad interim injunction dated
9.10.2002.
The said order made in I.A.No.454 of 2002 is under challenge in this Civil
Revision Petition.
I have heard the learned counsel for both the parties and perused the
material on record.
There can be no dispute about the inherent powers of a Court to grant
police aid for implementation of its orders so as to meet the ends of justice
and to prevent abuse of process of the Court. Such a power can be exercised even
to enforce the order of ad interim injunction. However, the question is whether
the Court below is justified in granting police aid on 10.4.2008 on an
application filed in the year 2002 for the purpose of enforcement of ad interim
injunction dated 9.10.2002.
It is relevant to note that the defendants/revision petitioners filed
counter contesting the application for temporary injunction in the year 2002
itself. However, the application was kept pending for a long time and ultimately
it was dismissed for default on 20.06.2007. Thereafter, there was no order
in operation till the application was restored to file on 10.4.2008.
Even while seeking restoration, the plaintiff did not allege or establish
any attempt on the part of the defendants to violate the order of ad interim
injunction warranting grant of police aid. In the circumstances, what prompted
the Court below to grant police aid on 10.04.2008 on the basis of the
allegations made in the application filed in the year 2002 is ununderstandable.
It is also relevant to note that in I.A.No.454 of 2002 filed for police
aid, a counter was already filed by the defendants/petitioners herein.
However, even without referring to the said counter the court below allowed
I.A.No.454 of 2002 by a cryptic order which runs as under :
"Heard the learned counsel for the petitioner, and the counsel for the
respondents. The I.A.No.379/2002 is restored to file and injunction order
already granted on 9.10.2002 is continued. As there is injunction order pending
issued by this Court the bounden duty of this Court to protect its own order.
This Court has no alternative except to grant police aid to the petitioner to
protect the injunction order already granted on 9.10.2002 in I.A.No.379/2002.
In order to protect the own order of this Court and in view of the facts and
circumstances of the case, I have no hesitation to say that the petitioner
herein is entitled for the relief of police aid to protect the injunction
order already granted by this Court on 9.10.2002 in I.A.No.379 of 2002 and
thereby this petition merits to be allowed, and accordingly this petition is
allowed, in the circumstances without costs."
As rightly submitted by the learned counsel for the petitioners,
since
I.A.No.379 of 2002 filed under Order 39 Rules 1 & 2 of C.P.C. filed for
temporary injunction has not yet been decided on merits despite counter filed by the defendants, the Court below ought not to have granted police aid for enforcement of the order of the ad interim injunction dated 9.10.2002.
Particularly in the absence of any fresh material to show that there was any
attempt on the part of the defendants to violate the order of injunction, there
was absolutely no justification to grant police aid. Moreover, except observing
that since there is an order of injunction the Court is bound to protect its own
order by granting police aid, the Court below did not assign any reasons which
warranted granting the relief of police aid.
From the facts and circumstances of the case noticed above, I am of the opinion
that the Court below committed a grave error in granting police aid firstly,
without disposing of the application for temporary injunction on merits and
secondly without assigning any reasons for grant of such police aid. At any
rate, in the absence of any fresh material the impugned order granting police
aid on an application made in the year 2002, on the face of it, amounts to
erroneous exercise of jurisdiction conferred under law.
Viewed from any angle, the order under Revision being contrary to law is
unsustainable. Accordingly, the same is hereby set aside and the Civil Revision
Petition is allowed with a direction to consider and decide I.A.No.454 of 2002
after disposal of I.A.No.379 of 2002 filed for temporary injunction on merits.
No costs.
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