C.K. Rajendran Kambakkaram v. State of Kerala and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** ## **&** **THE HONOURABLE MRS. JUSTICE SHOBA ANNAMMA EAPEN FRIDAY, THE 26[TH] DAY OF AUGUST 2022 / 4TH BHADRA, 1944 WA NO. 1291 OF 2022** **JUDGMENT IN WP(C) 19536/2022 OF HIGH COURT OF KERALA** ## **APPELLANT/PETITIONER:** C.K.RAJENDRAN KAMBAKKARAM, AGED 86 YEARS S/O. PADMANABHA PILLAI, AMBALAMADATHIL, AROOR MURI, AROOR, CHERTHALA TALUK, ALAPPUZHA DISTRICT - 688534. BY ADVS. G.HARIHARAN PRAVEEN.H. K.S.SMITHA V.R.SANJEEV KUMAR ANJALY T.A M.V.VIPINDAS ## **RESPONDENTS/RESPONDENTS:** 1 STATE OF KERALA REPRESENTED BY THE SECRETARY TO GOVERNMENT, HOME DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM - 695001. 2 STATION HOUSE OFFICER, AROOR POLICE STATION, AROOR, ALAPPUZHA DISTRICT-688534. WA No.1291/2022 ..2.. 3 BHUVANENDRAN, S/O PRABHAKARANKAMBAKKARAN, KANDATHILPARAMBIL, AROOR MURI AROOR P.O., CHERTHALATALUK, ALAPPUZHA DISTRICT - 686534., NOW RESIDING AT ASWATHY, PATTAL, NEAR RTO OFFICE, PERUMBAVOOR, ERNAKULAM - 683542 4 PARTHASARADHI PILLAI, PARVATHY NILAYAM, AROOR VILLAGE, AROOR P.O., CHERTHALA TALUK, ALAPPUZHA DISTRICT, REPRESENTED BY POWER OF ATTORNEY HOLDER, SUBASH CHANDRA, S/O PARAMESWARAKAMBAKKARAN, PARVATHYNIVAS, AROOR P.O., CHERTHALA TALUK, ALAPPUZHA DISTRICT - 688534. 5 RAJEEV, S/O.PRABHAKKARANKAMBAKKARAN, KANDATHILPARAMBIL, AROOR, MURI, AROOR, CHERTHALA TALUK, ALAPPUZHA DISTRICT - 688534. 6 MOHANDAS, S/O.KARUNAKARNAKAMBAKKARAN,MOHANALAYAM, AROOR, AROOR, MURI, AROOR,CHERTHALATALUK, ALAPPUZHA DISTRICT - 688534. 7 SYAMAPRASAD, S/O. PARAMESWARANKAMBAKKARAN,PARVATHINILAYAM, AROOR, MURI, AROOR, CHERTHALATALUK, ALAPPUZHA DISTRICT - 688534. 8 SETHUMADHAVAN, SEETHALAMVEETTIL, AROOR, MURI, AROOR, CHERTHALA TALUK, ALAPPUZHA DISTRICT - 688534. THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 26.08.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WA No.1291/2022 ..1.. ## **(CR)** ## **ALEXANDER THOMAS & SHOBA ANNAMMA EAPEN, JJ.** --------------------------------------------------------------------------- ## WA No. 1291 of 2022 [ _arising out of the impugned judgment dated 21.07.2022 in WP(C) No.19536/2022_ ] ---------------------------------------------------------- Dated this the 26[th] day of August, 2022 ## **JUDGMENT** ## SHOBA ANNAMMA EAPEN, J. The judgment dated 21.07.2022 rendered by the learned Single Judge in the instant WP(C) No.19536/2022, is the subject matter of challenge in this intra court appeal filed under Sec.5(i) of the Kerala High Court Act, 1958. 2. The appellant is the petitioner in the writ petition and the respondents in the writ appeal are the respondents in the writ petition. 3. Heard Sri.G.Hariharan, learned counsel for the appellant; Sri.Saigi Jacob Palatty, learned Senior Government Pleader appearing for official respondents 1 & 2; and Dr.V.N.Sankarjee, learned counsel appearing for respondents 3 to 8. 4. The prayers in the instant writ petition, WP(C) WA No.1291/2022 ..2.. No.19536/2022, are as follows; _“i) declare that the petitioner is entitled to get police protection for life from the respondents 3 to 8 and their henchmen as requested in Exhibit P2,_ _ii) issue a writ of mandamus or other appropriate writ, order or direction commanding 2[nd] respondent to give necessary and adequate police protection to the petitioner and his family members for their life from the respondents 3 to 8 and their henchmen as requested in Exhibit P2 forthwith;_ _iii) grant such other and further reliefs as this Hon'ble Court may deem fit in the facts and circumstances of the case;”_ 5. The learned Single Judge, after hearing both sides, has rendered the impugned judgment dated 21.07.2022, dismissing the above writ petition and directing the appellant/petitioner to get appropriate orders from the District Court, Alappuzha, wherein AS No.54/2022 is pending. 6. Briefly put, the case of the appellant is as follows; (a) The appellant, a senior citizen aged 86 years, being the eldest member of the Chiramel Kambakkaran family, is the President of the Aroor Puthuvaranadu Devaswom Trust, which is a private Trust formed by a member of the Chiramel Kambakkaran family. There were several disputes in connection with the conduct of election of the Trust and the appellant along with Aroor Puthuvaranadu Devaswom Trust had filed OS No.198/2017 on the WA No.1291/2022 **==> picture [31 x 7] intentionally omitted <==** files of the Court of Additional Munsiff, Cherthala for declaration and permanent prohibitory injunction. The suit was decreed in favour of the appellant as per Ext.P1 judgment. In order to comply with the directions in Ext.P1 judgment, election has to be conducted within six months and for that purpose, formal procedures including the issue of notice, preparation of voters' list etc. have to be done, for which the Puthuvaranadu Devaswom Temple is to be opened, which is kept locked by the defendants in the suit, who are respondents 3 to 8 in the writ petition. It is the case of the appellant that respondents 3 to 8 are obstructing the appellant in the matter of compliance of the directions in Ext.P1 judgment and there are serious threats to the life and property of the appellant from respondents 3 to 8 and their men. Thereafter, the appellant filed Ext.P2 complaint before the 2[nd] respondentStation House Officer seeking necessary police protection for the life of the appellant and his family members and to take appropriate legal action against respondents 3 to 8 and their men. (b) Learned counsel for the respondents submitted that the appellant is not the eldest male member of the family nor he is the President of the Trust. The 4[th] respondent- Parthasaradhi Pillai WA No.1291/2022 **==> picture [31 x 7] intentionally omitted <==** is the eldest male member of the family and that, earlier one Bhargavan Pillai was the President, who passed away on 04.03.2021 at the age of 96 and that, thereafter, the appellant trespassed upon about 30 cents of property set apart to the temple and put up a residential building therein. The appellant has done the illegal act by misusing his capacity as office bearer of the Trust and thus, committed breach of trust and misappropriation of the Trust property. It was further submitted that the respondents have preferred an appeal before the District Court, Alappuzha, against Ext.P1 judgment and that the matter is pending before the said court as AS No.54/2022 and that a stay petition as IA No.1/2022 is also pending consideration before the said court. 7. After hearing both sides, the learned Single Judge found that the issues cannot be decided either by the police or by this Court while considering a writ petition seeking police protection and declined to grant police protection and relegated the appellant to get appropriate orders from the District Court, Alappuzha and to raise the contentions with regard to the conduct of election also before the District Court, where all the concerned WA No.1291/2022 ..5.. persons are parties. 8. It is submitted by the learned counsel appearing for the appellant that, he being the eldest male member of the family, is the President of the Trust and the disputes among the members were considered and finalized as per Ext.P1 judgment and that, the learned Single Judge ought to have considered that Ext.P1 judgment of the court below is in favour of the appellant and granted adequate and effective police protection against respondents 3 to 8 and their men. 9. The learned counsel for the respondents, on the other hand, submitted that the issue among the members of the Trust is _pendente lite_ before the District Court, Alappuzha and the intention of the appellant for police protection is to convene a General Body meeting and to conduct election under the guise of Ext.P1 judgment, which the appellant is not otherwise entitled to, as per Ext.P1 judgment of the Additional Munsiff's Court, Cherthala. 10. We have considered the rival contentions of the learned counsel on both sides. It is not in dispute that OS No.198/2017 on the files of the Court of Additional Munsiff, Cherthala has been WA No.1291/2022 **==> picture [31 x 7] intentionally omitted <==** decreed in favour of the appellant and that the respondents herein have filed A.S. No.54/2022 before the District Court, Alappuzha and it is pending consideration before the said court. In a catena of decisions as in _**George Mirante v. State of Kerala**_ [1990 (2) KLT 89], this Court has held that in matters involving civil rights or disputes regarding title and possession over property, it is not proper for this Court to interfere with an order for police protection under Article 226 of the Constitution of India. It is further held that the police cannot be made the adjudicator of such civil disputes and those are all matters essentially within the domain of the civil courts, on which the parties should approach those courts and seek redressal. It is outside the limits of the duties, which are cast on them, which is to prevent breach of peace or commission of cognizable offences and to preserve law and order. It will be totally against the rule of law, if the right of the police is to be used in favour of one party against the another without an adjudication by any appropriate authority of the rights of either sides. 11. In _**George Mirante's**_ case _(supra),_ this Court further held that, in all such cases, the proper remedy for a party feeling WA No.1291/2022 **==> picture [31 x 7] intentionally omitted <==** aggrieved, is to approach the civil court for establishment of his rights and seek appropriate injunctive reliefs against the offending party and if any such orders are attempted to be violated, to seek their enforcement by the civil court itself. The civil court has power in such cases to enforce its orders under Order XXXIX Rule 2A or Section 151 of Civil Procedure Code with police aid, if necessary. When such remedies are available, this Court should be loathed to direct interference by the police and to afford protection, though this Court is not powerless to act in appropriate cases to preserve the rights to property. But, such interference should be made sparingly and not in cases, where the parties have an effective remedy or relief by resort to the civil court itself. 12. Where the appellate court has not stayed the impugned decree, then in order to execute the said decree, the remedy available to the party concerned is to approach the execution court by way of application under Order XXI of the Civil Procedure Code, 1908. When there are adequate provisions under the Code of Civil Procedure, which enables the civil court to enforce and implement its orders, it is not proper for such a party to approach this Court under Article 226 of the Constitution of India seeking police protection to secure compliance of the order, which may amount to short-circuiting the due civil litigative process. In **Raman and Others v. State of** WA No.1291/2022 **==> picture [31 x 7] intentionally omitted <==** **Kerala** (2019 (1) KHC 169), a Division Bench of this Court has held that the petitioners, who had obtained a decree from a competent court against the respondents, are at liberty to approach the execution court for executing the decree as contemplated under Order XXI R.32 of the Code of Civil Procedure. Without having taken any recourse to the effective alternate civil remedies available to the appellant, he has directly approached this Court requesting to exercise the extra-ordinary jurisdiction of this Court by issuing a writ of mandamus. A Division Bench of this Court in _**Kallai Abu**_ **v.** _**Sub Inspector of Police**_ (2013 (1) KLT 320) has clearly held that neither the Criminal Procedure Code nor the Police Act or any of the statute governing the Act or duties of Police enjoins them to render police assistance or police protection for determining the disputed civil rights. 13. Admittedly, an appeal as AS No.54/2022 is pending before the District Court, Alappuzha against Ext.P1 judgment, filed by respondents 3 to 8 herein and it would not be proper for this Court to interfere in the matter, which is _pendente lite_ before the court below. The parties have to adjudicate their respective claims before the District Court, Alappuzha and get appropriate orders WA No.1291/2022 **==> picture [31 x 7] intentionally omitted <==** from the said court. The learned Single Judge has rightly declined the prayer for police protection and we do not find any ground to interfere with the impugned judgment of the learned Single Judge inasmuch as it has directed the appellant/petitioner to approach the court below to raise the contention with regard to the conduct of election and also to get appropriate orders in connection with _inter se_ disputes between the parties. With these observations, the above Writ Appeal will stand dismissed. **Sd/-** ## **ALEXANDER THOMAS** **JUDGE** **Sd/-** **SHOBA ANNAMMA EAPEN JUDGE** bka/- WA No.1291/2022 ## **APPENDIX OF WA 1291/2022** PETITIONER ANNEXURES Annexure 1 TRUE COPY OF THE CASE STATUS RELATING TO A.S. NO. 54/2022 PENDING BEFORE THE DISTRICT COURT, ALAPPUZHA.