Sec.151 of C.P.C. - Police aid - interim injunction - no appeal - police aid as the defendant obstructing while constructing a building - defendant filed a suit for partition - when there is no right/claim by defendant - police aid can be granted - in other matters like this case , no police aid should be given unless the rights are crystallized - Lower court committed wrong = Mettu Malyadri ...Petitioner Mettu Sivaiah..Respondent = published in judis.nic.in/judis_andhra/filename=10624

Sec.151 of C.P.C. - Police aid - interim injunction - no appeal - police aid as the defendant obstructing while constructing a building  - defendant filed a suit for partition - when there is no right/claim by defendant - police aid can be granted - in other matters like this case , no police aid should be given unless the rights are crystallized - Lower court committed wrong = 

Thus the main purpose of granting injunction is to see that a party who is in
peaceful possession is not dispossessed and to see that the property in dispute
is not being wasted, damaged or alienated by any party to the suit pending
disposal of the suit.  
As far as granting of police aid is concerned there
cannot be any dispute with regard to principles laid down in the decisions cited
by either side.  However, the Courts have to see the facts and circumstances of
each case.  
Where it appears that a person having no right and title wrongfully interferes with the possession of any other person who is lawful owner of the property then the Court is always justified in granting police aid to protect the possession of such party, but where it appears to the Court that a party may
have a right by birth for example a party claiming right as a coparcener in a property or a share in the property then the Courts must be slow in granting police aid in such a situation.  As far as brothers and any other person who
have share in the property are concerned every shareholder need not be in actual
possession of the property.  
Merely because a person is not in actual possession
of the property or may be residing at some other place, that does not mean that,
he has no right in the property, but however where a party has been in
continuous possession of the property for a considerable period and claims right
over such property, the Court is justified in protecting his possession
temporarily till the rights of the parties have been crystallized.   
But this
does not mean that a party can alter the physical features of any property or
make constructions in a disputed property particularly where other side party
claims a share in the property and particularly when a partition suit is pending
between the parties or between the persons claiming under the parties to the
suit.
In this case, admittedly the son of the petitioner filed a suit for partition
that means the son of the petitioner has been claiming share in the property.
It may be a fact that though the respondent suffered an order of injunction he
has not carried the matter in appeal and the injunction order granted against
him is still in force.  The fact remains that the injunction order passed
against the petitioner is in force.  
The petitioner cannot interfere with the
possession of the respondent, but at the same time the fact remains that the son
of the petitioner filed a suit for partition and also claimed that the physical
features of the plaint schedule property should not be changed during the
pendency of the said suit and it appears that the matter is pending before the
Senior Civil Judge Court, Kavali.  
In the circumstances, it appears that the
petitioner though claimed that the respondent interfered when he tried to make a
construction on 22.12.2012 and the said fact is not denied by the petitioner,
but having regard to the facts and circumstances of the case it appears that the
lower Court is not justified in granting police aid.  The lower Court ignored
the relationship between the parties and rival claims of the parties and the
fact that the son of the petitioner filed a suit for partition before the Senior
Civil Judge Court, KLavali and the same is pending.  
Normally in civil matters
unless and until the rights have been crystallized and it is clear to the mind
of the Court that a party without any semblance of right is violating the orders
of the Court the interference of the police should not be called for.
Subject to the observations made supra, the revision petition is allowed and the
impugned order is set aside.  No costs.
As a sequel, the miscellaneous petitions, if any, pending in this revision
petition shall stand closed.

THE HONOURABLE SRI JUSTICE B.CHANDRA KUMAR            

CRP No.2125 of 2013

07-11-2013

Mettu Malyadri ...Petitioner

Mettu Sivaiah..Respondent

Counsel for the Petitioner:Sri M. Venkata Narayana

Counsel for the Respondent:Sri P. Rajasekhar

<Gist :

>Head Note:

?Cases Referred:
1. (2012) 4 SCC 307
2. 2010(6) ALT 92(DB)
3. 2013(1) ALT 532

THE HON'BLE SRI JUSTICE B. CHANDRA KUMAR        

Civil Revision Petition No. 2125 of 2013

Order:

         This CRP is directed against the order and decretal order dated
15.03.2012 passed in I.A. No.24 of 2013 in O.S. No.36 of 2012 by the Principal
Junior Civil Judge, Kavali.
        The respondent herein filed the suit for injunction and I.A. No.103 of
2012 for grant of ad interim injunction.  The lower Court granted injunction
order dated 29.10.2012.  Then the respondent herein filed I.A. No.24 of 2013
seeking police aid.  By an order dated 15.03.2013 the lower Court allowed the
said petition and ordered police aid to the respondent.  Aggrieved by the same,
the petitioner filed this petition.
The main contention of Sri M. Venkata Narayana, learned counsel for the
petitioner, is that the lower Court ought to have considered that no application
was filed under Order 39 Rule 2(a) CPC and without resorting to the procedure
prescribed under Order 39 Rule 2(a) CPC and without considering the facts and
circumstances of the case the lower Court straightaway granted police aid.  He
has relied on a decision reported in Kanwar Singh Saini v. High Court of Delhi1.
Sri P. Rajasekhar, learned counsel for the respondent, has referred to the
affidavit filed by the respondent herein in support of the application filed
seeking police protection and the counter filed by the petitioner herein in the
said application and submits that the Court below, having regard to the facts
and circumstances of the case, granted police aid.  It is also submitted that a
specific averment of the respondent that the petitioner obstructed while he was
attempted to make construction on 22.12.2012 is not denied.  He has also relied
on the judgments of this Court reported in Polavarapu Nagamani v. Parchuri
Koteshwara Rao2, and B. Chandra Sekhar Reddy v. K. Naga Raju Yadav3 in support  
of his contention that where situation warrants the Courts have been granting
police aid.
It is not in dispute that the petitioner and the respondent are brothers.  The
specific case of the respondent is that his father late Malakondaiah sold 20
Ankanams of land out of 30 Ankanams to him under a  registered sale deed dated
16.05.1987 and subsequently he executed an unregistered will deed dated
15.11.1988 in favour of his mother who subsequently executed a settlement deed
in favour of the respondent.  The case of the petitioner is that 30 Ankanams is
joint family property in which he is having half share and after the death of
his father a division was made in which he got half share.  It is also his case
that subsequently his son filed a suit for partition in O.S. No.45 of 2012
claiming a share in the joint family property against himself, his mother and
the respondent herein.
The rival claims and the relationship of the parties have to be kept in mind.
One of the points raised by Sri M. Venkata Narayana is that unless late
Malakondaiah had an absolute right to sell the land in favour of his younger
son, the respondent herein, the sale deed itself would become void.  It is also
his submission that there is nothing on record to say that the disputed property
is self acquired property of late Malakondaiah.  Anyhow the question whether the
petitioner herein has a share in the disputed property or not or whether the
sale deed executed by Malakondaiah and subsequent Will Deed executed by him in  
favour of his wife are valid or not have to be decided by the trial Court after
full fledged trial and this Court cannot express any opinion on the said issues
at this stage.
However, the fact remains that the petitioner and the respondent are real
brothers and the son of the petitioner filed a suit for partition in O.S. No.45
of 2012 and the same is pending.  It also appears that the son of the petitioner
sought an interim direction not to change the physical features of the petition
schedule property during the pendency of O.S. No.45 of 2012.   The main purpose
of granting any injunction under Order 39 Rule 1 CPC is to protect the property
and to see that the property is not wasted nor damaged.
Order XXXIX Rule 1 CPC is as follows.
1. Cases in which temporary injunction may be granted.- Where in any suit it is
proved by affidavit or otherwise-
a) that any property in dispute in a suit is in danger of being wasted, damaged
or alienated by any party to the suit, or wrongfully sold in execution of a
decree, or
b) that the defendant threatens, or intends, to remove or dispose of his
property with a view to defrauding his creditors,
c) that the defendant threatens to dispossess, the plaintiff or otherwise cause
injury to the plaintiff in relation to any property in dispute in the suit.
        the Court may by order grant a temporary injunction to restrain such act,
or make such other order for the purpose of staying and preventing the wasting,
damaging, alienation, sale, removal or disposition of the property or
dispossession of the plaintiff, or otherwise causing injury to the plaintiff in
relation to any property in dispute in the suit as the Court thinks fit, until
the disposal of the suit or until further orders."

Rule 2 of Order XXXIX deals with a situation where there is continuance of
breach of contract or other injury of any kind and to restrain the defendant
from committing a breach of contract or other injury of any kind.
Order XXXIX Rule 2A (1) and (2) deals with the consequence of disobedience or
breach of injunction which is as follows.
2A. 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, 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 the balance, if
any, to the party entitled thereto."

Thus the main purpose of granting injunction is to see that a party who is in
peaceful possession is not dispossessed and to see that the property in dispute
is not being wasted, damaged or alienated by any party to the suit pending
disposal of the suit.  
As far as granting of police aid is concerned there
cannot be any dispute with regard to principles laid down in the decisions cited
by either side.  However, the Courts have to see the facts and circumstances of
each case.  
Where it appears that a person having no right and title wrongfully interferes with the possession of any other person who is lawful owner of the property then the Court is always justified in granting police aid to protect the possession of such party, but where it appears to the Court that a party may
have a right by birth for example a party claiming right as a coparcener in a property or a share in the property then the Courts must be slow in granting police aid in such a situation.  As far as brothers and any other person who
have share in the property are concerned every shareholder need not be in actual
possession of the property.  
Merely because a person is not in actual possession
of the property or may be residing at some other place, that does not mean that,
he has no right in the property, but however where a party has been in
continuous possession of the property for a considerable period and claims right
over such property, the Court is justified in protecting his possession
temporarily till the rights of the parties have been crystallized.  
But this
does not mean that a party can alter the physical features of any property or
make constructions in a disputed property particularly where other side party
claims a share in the property and particularly when a partition suit is pending
between the parties or between the persons claiming under the parties to the
suit.
In this case, admittedly the son of the petitioner filed a suit for partition
that means the son of the petitioner has been claiming share in the property.
It may be a fact that though the respondent suffered an order of injunction he
has not carried the matter in appeal and the injunction order granted against
him is still in force.  The fact remains that the injunction order passed
against the petitioner is in force.  
The petitioner cannot interfere with the
possession of the respondent, but at the same time the fact remains that the son
of the petitioner filed a suit for partition and also claimed that the physical
features of the plaint schedule property should not be changed during the
pendency of the said suit and it appears that the matter is pending before the
Senior Civil Judge Court, Kavali.
In the circumstances, it appears that the
petitioner though claimed that the respondent interfered when he tried to make a
construction on 22.12.2012 and the said fact is not denied by the petitioner,
but having regard to the facts and circumstances of the case it appears that the
lower Court is not justified in granting police aid.  The lower Court ignored
the relationship between the parties and rival claims of the parties and the
fact that the son of the petitioner filed a suit for partition before the Senior
Civil Judge Court, KLavali and the same is pending.
Normally in civil matters
unless and until the rights have been crystallized and it is clear to the mind
of the Court that a party without any semblance of right is violating the orders
of the Court the interference of the police should not be called for.
Subject to the observations made supra, the revision petition is allowed and the
impugned order is set aside.  No costs.
As a sequel, the miscellaneous petitions, if any, pending in this revision
petition shall stand closed.
___________________  
B. CHANDRA KUMAR, J.    
Date: 07.11.2013

Comments

Popular posts from this blog

Article 54 of the Limitation Act, 1963 (36 of 1963) reads as follows: “For Specific performance of a contract: Three years The date fixed for the performance, or, if no such date is fixed, when the plaintiff has notice that performance is refused.”= the apex Court in Ahmmadsahb Abdul Mila vs. Bibijan[1], wherein it was held that the date fixed for the performance of the contract should be a specified date in the calendar, and submitted that since no specified date in the calendar for performance of the contract is mentioned in the agreement of sale, the second limb of Article 54 of the Limitation Act is applicable. ; whether the suit is barred by limitation or not becomes a tribal issue and when there is a tribal issue, the lower Court ought not to have rejected the plaint at the threshold. In view of the same, order, dated 27-01-2012, in CFR.No.90 of 2012, passed by the Additional Senior Civil Judge, Ongole, (FAC) Senior Civil Judge, Darsi, is, hereby, set aside. The Appeal is allowed accordingly.

Or.18, rule 17 and sec.151 C.P.C - petition filed for reopen and examination of the executant of Ex.A1 the sale deed to fill up the lacuna in evidence pointed out at the time of arguments not maintainable = Shaik Gousiya Begum. ..Petitioner Shaik Hussan and others.... Respondents = Published in http://judis.nic.in/judis_andhra/qrydisp.aspx?filename=10515

Order 39 Rules 1 and 2 CPC. plaintiff has to prove his title and possession how he came into possession prima faice , in the absence of the same, not entitled for interim injunction = The questions as to whether the lease deed was properly stamped and whether the stamp paper on which it was typed can be said to have been procured through proper source, need to be dealt with at the stage of trial.; The suit filed by the 1st respondent, is the one for injunction simplicitor in respect of an item of immovable property. He has also filed an application under Order 39 Rules 1 and 2 CPC. Basically, it was for the 1st respondent to establish that he is in possession and enjoyment of the property and that he derived the same through lawful means, particularly when he did not contend that he encroached upon the property.= assumptions of facts against to the contents of crucial third party by misreading the same- it is just un-understandable as to how the trial Court gathered the impression that Anuradha stated that there was a meeting of Board of Directors, where it was decided to lease the property to the appellants. - the trial Court itself was not clear as to whether the appellant is the lessee or a Manager or is working under any other arrangement. - The important findings that have a bearing upon the valuable rights of the parties cannot be based upon such uncertain and unverified facts. One of the cardinal principles in the matter of examining the applications filed under Order 39 Rules 1 and 2 CPC is that a party claiming that relief must come to the Court with clean hands. Prima facie, we find that there are no bona fides, much less consistency on the part of the 1st respondent, in his effort to get the order of temporary injunction. The trial Court has misread the evidence and misinterpreted the facts borne out by the record.