Asha v. District Superintendent of Police Kollam and Others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MRS. JUSTICE M.C.HARI RANI MONDAY, THE 26TH MAY 2008 / 5TH JYAISHTA 1930 WP(C).NO. 9899 OF 2008(C) ------------------------PETITIONER: ------------ ASHA, AGED 61 YEARS, WIFE OF LATE K.V.SREEDHARAN NAIR, RESIDING AT VELLANGAL, ULIYACOIL, KOLLAM. BY ADV. SRI.P.B.SURESH KUMAR SRI.LEO GEORGE RESPONDENTS: ------------- 1. THE DISTRICT SUPERINTENDENT OF POLICE, KOLLAM. 2. THE CIRCLE INSPECTOR OF POLICE, KOLLAM EAST, KOLLAM. 3. THE SUB INSPECTOR OF POLICE, KOLLAM EAST, KOLLAM. 4. K.P. GOPALAKRISHNA PILLAI, SON OF PARAMU PILLAI, KRISHNA VILASAM, ULIYACOIL, KOLLAM. BY GOVERNMENT PLEADER FOR R1 TO 3 SRI.M.M.ABDUL AZIZ (SR.) SRI.M.A.ABDUL HAKHIM & SRI.HARIPRASAD.C. FOR R4 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 26/05/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **APPENDIX IN W.P.(C)NO.9899/08** ## **PETITIONER'S EXTS:** EXT.P1: TRUE COPY OF THE DECREE IN O.S.NO. 193/95 ON THE FILE OF THE MUNSIFF'S COURT, KOLLAM DATED 9.1.96. EXT.P2: TRUE COPY OF THE ORDER PASSED BY THE MUNSIFF'S COURT, KOLLAM IN E.P.NO.171/97 DATED 15.3.2001. EXT.P3: TRUE COPY OF THE ORDER OF THE MUNSIFF'S COURT, KOLLAM IN E.A.NO.416/01 IN E.P.NO.171/97 DATED 28.7.04. EXT.P4: TRUE COPY OF THE ORDER PASSED BY THE MUNSIFF'S COURT, KOLAM IN E.A.NO.48/05 IN E.P.NO.171/97 DATED 28.7.04. EXT.P5: TRUE COPY OF THE FIRST INFORMATION REPORT IN CRIME NO.173/08 DATED 8.2.08. EXT.P6: TRUE COPY OF E.A.NO.156/08 IN E.P.NO.171/97 DATED 11.3.2008. EXT.P7: TRUE COPY OF THE ORDER IN EXHIBIT P6 APPLICATION DATED 14.3.2008. - EXT.P8: TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER BEFORE THE FIRST RESPONDENT WITH COPIES TO RESPONDENTS 2 AND 3 DATED 22.3.08. EXT.P9: TRUE COPY OF THE RELEVANT PORTIOIN OF THE NEWS PUBLISHED IN THE MALAYALA MANORAMA DATED 7.4.08. ## **RESPONDENTS' EXTS:** EXT.R3(a): A COPY OF THE PETITION SUBMITTED BY THE PETITIONER TO THE SUPERINTENDENT OF POLICE, KOLLAM. EXT.R4(a): A PHOTOCOPY OF THE 2ND PAGE OF THE SSLC BOOK OF THE 4TH RESPONDENT SHOWING HIS CORRECT NAME AS K.P.GOPALAKRISHNAN NAIR. EXT.R4(b): A PHOTOSTAT COPY OF THE IDENTITY CARD ISSUED BY THE ELECTION COMMISSION OF INDIA DATED 3.9.97. EXT.R4(c): A PHOTOSTAT COPY OF THE RATION CARD ISSUED IN THE NAME OF K.P.GOPALAKRISHNAN NAIR BY THE CITY RATIONING OFFICER. EXT.R4(d): PHOTOCOPY OF THE PLAINT IN O.S.No.689/01 FILED BEFORE THE PRINCIPAL MUNSIFF'S COURT, KOLLAM DATED 4.8.2001. EXT.R4(e): PHOTOCOPY OF THE DOCUMENT NO.515/1975 DATED 15.2.75. EXT.R4(f): PHOTOCOPY OF THE SETTLEMENT DEED NO.537/99 OF SUB REGISTRAR'S OFFICE, KOLLAM. WP(C).NO. 9899 OF 2008(C) 2 - EXT.R4(g): PHOTOCOPY OF THE BASIS TAX RECEIPT IN FAVOUR OF S.PRATHAP ISSUED BY THE VILLAGE OFFICER, KOLLAM EAST. - EXT.R4(h): PHOTOCOPY OF THE FORN NO.7 SURVY MANUAL ISSUED BY THE ASST.DIRECTOR SURVEY & LAND RECORDS DATED 19.3.03. - EXT.R4(i): PHOTOCOPY OF THE COMMUNICATION ISSUED BY THE DISTRICT COLLECTOR, KOLLAM IN FAVOUR OF LALITHAKUMARI DATED 20.11.2001. - EXT.R4(j): PHOTOCOPY OF THE COMMUNICATION ISSUED BY THE ADDL.TAHSILDAR, KOLLAM DATED 9.12.2004. - EXT.R4(k): PHOTOCOPY OF THE COMMUNICATION DATED 20.2.08 ISSUED BY THE ASST.DIRECTOR, RESURVEY, KOLLAM. - EXT.R4(l): PHOTOSTAT COPY OF THE NEWS PUBLISHED ON 7.4.08 IN THE MANGALAM DAILY NEWSPAPER. - EXT.R4(m): PHOTOGRAPH SHOWING THE CLOSURE OF THE GATE WITH BRICKS ON THE NORTHERN SIDE OF THE 4TH RESPONDENT'S RESIDENCE AND RESIDENTIAL PROPERTY. - EXT.R4(n): PHOTOGRAPH OF THE COMPOUND WALL AND GAGE ON THE SOUTHERN SIDE OF THE PATHWAY. - EXT.R4(o): PHOTOGRAPH SHOWING THE CLOSURE OF THE GAGE. - EXT.R4(p): PHOTOGRAPH SHOWING THE CLOSURE OF THE GAGE. - EXT.R4(q): PHOTOSTAT COPY OF THE SURVEY PLAN OF PROPERTY OF THE KOLLAM EAST VILLAGE. TRUE COPY **K.BALAKRISHNAN NAIR & M.C.HARI RANI JJ. ----------------------------------------W.P.(C)No.9899 OF 2008 ----------------------------------------------------DATED THIS THE 26[th] DAY OF MAY, 2008** ## **J U D G M E N T** Balakrishnan Nair, J. The writ petitioner has approached this Court, seeking the following relief: “ issue a writ of mandamus or any other appropriate writ, direction or order commanding respondents 1 to 3 to afford police aid for implementing the direction of the court in Exhibit P7 and to maintain the compound wall to be constructed through the process of the court as directed in Exhibit P7 order. 2. The brief facts of the case as stated by the petitioner, are the following. The petitioner's late husband owned 85 cents of land in Kollam Village. On his death, the same devolved upon herself and her children. The 4[th] respondent and his brother owned a property, which was lying on the southern side of the above 85 cents of land. The eastern boundary of that property was a road. While the 4[th] respondent and his brother partitioned their property, the portion having road frontage was allotted to his brother. The said respondent **W.P.(C)No.9899 OF 2008** 2 took the rear portion of the property, without providing any access to the road through his brother's share. To have access to the road, the said respondent tried to demolish the compound wall of the property of the petitioner and cut open a pathway. So, the petitioner's husband moved the Munsiff's Court, Kollam, by filing O.S.No.193/95. The said suit was decreed as per Exhibit P1, granting a decree of mandatory injunction, directing the 4[th] respondent to restore the demolished compound wall separating his property and the property of the petitioner. The said decree has become final. The petitioner's husband filed E.P.No.171/91 for executing the decree. The court passed Exhibit P2 order dated 15.3.2001, directing the 4[th] respondent to restore the compound wall demolished by him and to remove the gate installed by him. The relevant portion of the order reads as follows: “From the above discussions I hold that Decree Holder has succeeded to prove that the judgment debtor has contumaciously violated the decree and therefore the same is liable to be enforced by him. Judgment Debtor is not entitled to use any portion of decree schedule as a way. And he is directed to restore the compound wall demolished by him and to remove the gate installed on **W.P.(C)No.9899 OF 2008** 3 the wall within three weeks from this date. In the meanwhile there shall be attachment of the property owned by Judgment debtor and on his failing to obey the decree, the decree holder is allowed to restore the compound wall to the original position and to remove the gate at the cost and expenses of the judgment debtor and his assets and by the sale of his properties. E.P. posted for further steps.” The 4[th] respondent challenged Exhibit P2, by filing C.R.P.No.1024/01 before this Court. It was dismissed as withdrawn on 19.7.2001. 3. Since the 4[th] respondent did not obey the direction in Exhibit P2, the petitioner's husband filed E.A.No.416/01, to restore the demolished portion of the compound wall, by appointing an AdvocateCommissioner. During the pendency of that application, the petitioner's husband died and the petitioner and her children got themselves impleaded in the said E.A. The court allowed the said E.A. and appointed an Advocate-Commissioner, to implement the directions contained in Exhibit P2 order. Exhibit P3 is the order in the E.A. Though the 4[th] respondent filed W.P.(C)No.32713/04 before this Court, challenging Exhibit P3, the said writ petition was dismissed as withdrawn. Later, the petitioner provided men and material and 4 ## **W.P.(C)No.9899 OF 2008** restored the compound wall by spending an amount of Rs.10,000/-. While so, the 4[th] respondent and his supporters demolished the compound wall on 22.1.2005, which was constructed under the supervision of the Commissioner. So, again E.A.No.48/05 was filed before the execution court. The court again ordered to restore the compound wall, as directed in Exhibit P3. The copy of the order in that E.A. is Exhibit P4. Again the petitioner was permitted to construct the compound wall through the process of the court. The relevant portion of the said order reads as follows: “Therefore judgment debtor violated the decree wilfully without any excuse. In the result, petition allowed as follows: a) Decree holders are permitted to construct the compound wall in its original position through the process of this court at the expense of judgment debtor. b) The expense to be incurred for the construction of the compound wall is liable to be recovered from the judgment debtor and his assets. c) The expense incurred for the construction of 5 ## **W.P.(C)No.9899 OF 2008** the compound wall on 2.1.2005 Rs.10,000/- is also liable to be recovered from the judgment debtor and his assets. d) Decree holder is entitled to get the costs of the petition.” 4. Exhibit P4 order was challenged by the 4[th] respondent before this Court, by filing W.P.(C)No.4321/08. The said writ petition was dismissed on 6.2.2008. The said judgment reads as follows: “This writ petition is preferred to set aside Ext.P8 order and to defer the construction of the compound wall in pursuance of Ext.P8 order. This is a classical case which will demonstrate the disregard of a party to the orders and judgments of the Courts. A perusal of the order passed by the learned Munsiff would reveal that time and again the judgment debtor will violate the order of the Court and if a wall is constructed through the Court it will be demolished and I can give few illustrations as is seen from the order. The original decree holder filed E.A.416/01 and before that on 9.1.1996 there was an order to restore the compound wall into its original position on 26.12.96. The judgment 6 ## **W.P.(C)No.9899 OF 2008** debtor and his relatives demolished a portion of the compound wall. In E.A.416/01 an application was made for restoration of the compound wall through a Commissioner which was allowed by the Court with the assistance of the police. The judgment debtor approached the High Court, though obtained an interim stay later it was dismissed and thereafter the compound wall was restored through the process of the Court on 22.1.05 also with a right to recovery of loss of Rs.10,000/-. Thereafter at 6.30 p.m. on the very same day the relatives and men of the judgment debtor gathered there and demolished the compound wall as it is seen proved by Exts.C1 and C2. There has been a persistent and consistent move on the part of the judgment debtor to nullify the decree that has been granted by the Court. It is under such circumstances the Court again permitted the decree holder to construct the compound wall and also to recover the expenses incurred. I do not find any ground to interfere with that order. The prayer of the learned counsel for the writ 7 ## **W.P.(C)No.9899 OF 2008** petitioner to stay operation of Ext.P8 order till the disposal of I.A.655/08 also cannot be entertained for the reason that it is an application for setting aside the exparte decree which has been passed long long back and the matter has been adjudicated before the execution Court on innumerable number of occasions. I do not find any merit in this writ petition and therefore it is dismissed.” When, pursuant to Exhibit P4, the Amin of the Munsiff's Court attempted to restore the compound wall, he was obstructed by the 4[th] respondent and his men. The Amin reported the matter to the court and the court addressed the Superintendent of Police to give protection to enforce its order. Accordingly, with police protection, the compound wall was restored on 7.2.2008. Again, in the night of 7.2.2008, the 4[th] respondent demolished the compound wall. So, the Police registered Exhibit P5 crime against him. The petitioner, thereafter, filed E.A.No.156/08 seeking necessary orders to restore the compound wall through the process of the court. That application was allowed by Exhibit P7 and the Superintendent of Police was directed to render necessary Police assistance. The petitioner submits that because of political influence exerted on the Police, even in the 8 ## **W.P.(C)No.9899 OF 2008** face of Exhibit P7, the Police did not extend any help to restore the compound wall. So, she filed Exhibit P8 representation before the Police and thereafter this writ petition was filed, seeking the above quoted reliefs. This Court on 28.3.2008 passed the following interim order. “Heard. The facts of the case disclosed are really distressing. The 4[th] respondent is repeatedly flouting the orders of the Civil Court allegedly with the connivance of the Police Officials. The petitioner submits, as per Ext.P7 even though the execution Court addressed the Police to render assistance to the petitioner to put up the compound wall, the Police have not taken any action. Having regard to the facts of the case, an interim order as prayed for is issued. Having regard to the special facts of the case, we propose to award compensatory costs against the respondents including the Police officials. They may show cause why we may not pass such an order.” Pursuant to the above direction, the police acted and with their protection, the compound wall was restored. 9 ## **W.P.(C)No.9899 OF 2008** 5. The 4[th] respondent has filed a detailed counter affidavit, resisting the prayers in the writ petition. The main point taken in the counter affidavit is that Exhibit P1 decree has been obtained by fraud. A purambokku pathway was shown as part of the property of the plaintiff and a decree has been obtained suppressing the material facts. The 4[th] respondent was using that pathway for several years and with the blocking of the pathway he has no access to go to the outside world. The 4[th] respondent also submitted that he is not a party to Exhibit P1 decree. He is K.P.Gopalakrishnan Nair, as evident from Exhibits R4(a) to R4(c) the documents produced by him. In Exhibit P1 his name is shown as K.P.Gopalakrishna Pillai. It is also submitted that he has filed O.S.No.689/01 before the Munsiff's Court seeking to declare his right over the pathway, which is described as plaint B schedule in that suit. He also prays for setting aside Exhibit P1 decree, stated to have been obtained by fraud. Now the purambokku pathway is treated by the survey officials as the property of the petitioner and mutation has been carried out in the survey records, relying on that fraudulent decree. As a result of the execution of the decree, the 4[th] respondent's only access to go outside has been blocked and he and his wife are remaining in that house without any ingress and egress. The official respondents have filed a counter affidavit, denying the 10 ## **W.P.(C)No.9899 OF 2008** allegations against them. They have already rendered necessary protection, as directed in Exhibit P7, during the pendency of this writ petition, it is submitted. 6. We heard the learned counsel on both sides. 7. The learned senior counsel for the 4[th] respondent relied on the decision of the Apex Court in _**S.P.Chengalvaraya Naidu v. Jagannath (1994 (1) SCC 1)**_ and submitted that Exhibit P1 decree, which was obtained by fraud, is void and the same can be attacked in execution proceedings and even collaterally. Therefore, this Court may not extend its helping hand to the petitioner, who is seeking the reliefs on the strength of a decree obtained by fraud by her husband, it is submitted. 8. We notice that Exhibit P1 has become final. We also notice that in Exhibit P2, P3, P4, P6 and P7 orders, the 4[th] respondent was appearing through counsel, wherein he was described as Gopalakrishna Pillai. In C.R.P.No.1024/2001, he had described himself as Gopalakrishna Pillai. If Exhibit P1 was obtained by fraud, the 4[th] respondent should establish the same in appropriate proceedings. Though he has filed a suit seeking reliefs against Exhibit P1, there is no interim order in that suit. It is true, if the 4[th] respondent feels that the decree was obtained by fraud, he can resist the same in the 11 ## **W.P.(C)No.9899 OF 2008** execution proceedings. In the orders passed in the execution petition and execution applications, he could have raised those contentions. But the challenges attempted against those orders before this Court were already repelled. 9. The writ petitioner approached this Court, since the Police did not extend necessary help to execute the decree on the basis of Exhibit P7 order of the Civil Court. When Exhibit P7 order is received, the Police have a duty to act as requested therein. The Police have failed to do that. Therefore this writ petition is filed, seeking a writ of mandamus against the police. We feel that it is quite inappropriate for the 4[th] respondent to set up a plea of nullity of the decree in this case. He could have set up that plea before the court below or in the proceedings before this Court, challenging the orders of the court below. The police cannot look into that contention or accept that contention. As we have repeated in several other cases, this Court, in the police protection jurisdiction is concerned only with the failure of duty of the police enjoined upon them by the statutes. Since the Police do not have any duty to accept the contention concerning the validity of Exhibit P1, we cannot also go into the validity of Exhibit P1, raised collaterally before us in this writ petition. Therefore, the said contention of the 4[th] respondent is overruled. If the 4[th] respondent has 12 ## **W.P.(C)No.9899 OF 2008** any grievance, he has to take recourse to other remedies under law. He has already invoked one of the remedies available to him, by filing a suit. But, instead of obtaining appropriate orders in that suit, he cannot take law into his hand and physically prevent the execution of the decree, which has become final. That is what is attempted in this case and therefore the Civil Court, by Exhibit P7 addressed the police to enforce its orders. Since the Police failed to do that, we are fully justified in issuing the direction as prayed for by the petitioner. Therefore, the writ petition is allowed. The Police shall render necessary protection for maintenance of the compound wall already constructed. But this direction will be subject to any orders of the competent civil court concerning the matter. In other words, this judgment will not stand in the way of the 4[th] respondent to pursue his claims and rights before the civil court. Having regard to the facts of the case, the petitioner is entitled to get costs from the 4[th] respondent, which is quantified as Rs.10,000/- (Rupees Ten Thousand only). ## **K.BALAKRISHNAN NAIR, JUDGE.** ## **M.C.HARI RANI, JUDGE.** dsn