M.K. Shaji and Usha Shaji v. State of Kerala and Others

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN &** **THE HONOURABLE MR. JUSTICE ASHOK MENON** **TUESDAY, THE 8TH DAY OF MAY 2018 / 18TH VAISAKHA, 1940** **WP(C).No. 14533 of 2018** ## **PETITIONER(S)** **1 M.K.SHAJI, S/O.KESAVAN, AGED 52 YEARS, RESIDING AT MAROTTICKAL HOUSE, PONEKKARA P.O., ERNAKULAM DISTRICT, PIN-682041.** **2 USHA SHAJI, W/O.M.K.SHAJI, AGED 45 YEARS, RESIDING AT MAROTTICKAL HOUSE, PONEKKARA P.O., ERNAKULAM DISTRICT, PIN-682041.** **BY ADVS.SRI.C.S.MANU SRI.S.K.PREMRAJ** ## **RESPONDENT(S):** **1. STATE OF KERALA, REPRESENTED BY THE SECRETARY, DEPARTMENT OF HOME, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM, PIN-695001.** **2. DIRECTOR GENERAL OF POLICE, KERALA POLICE HEAD QUARTERS, THIRUVANANTHAPURAM, PIN-695014.** **3. CITY POLICE COMMISSIONER, KOCHI CITY, KOCHI, PIN-682018.** **4. SUB-INSPECTOR OF POLICE , CHERANALLOOR POLICE STATION, ERNAKULAM, PIN-682034.** **5. P.S.LUCY, W/O.LATE THOMAS, AGED 62 YEARS, RESIDING AT KARAPPARAMBIL HOUSE, PONEKKARA P.O., ERNAKULAM DISTRICT, PIN-682041.** **CONTD...2** **WP(C).No. 14533 of 2018** **- 2 -** ## **6. USHA AJAYAN,** **AGED 54 YEARS, W/O.AJAYAN, AZHAKATHARA HOUSE, KUMALANGI SOUTH, ERNAKULAM, PIN-682007.** ## **7. JASMIN UNNI,** **AGED 50 YEARS, W/O.UNNI, ARIPPEDATH HOUSE, ARCHANA, S.C.BOSE ROAD, AIMS P.O., ERNAKULAM, PIN-682041.** ## **8. YASALA,** **AGED 50 YEARS, W/O.SASIDHARAN, VADAKKEDATHU HOUSE, KUMARANASAN ROAD, EDAPPALLY, ERNAKULAM, PIN-682024.** **R1-R4 BY GOVERNMENT PLEADER SRI.P.G.PRAMOD** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 08-05-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No. 14533 of 2018 (N)** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS** **EXHIBIT P1 TRUE COPY OF THE PLAINT IN OS NO.1241 OF 2016 ON THE FILES OF THE MUNSIFF'S COURT, ERNAKULAM. EXHIBIT P2 TRUE COPY OF THE ORDER DATED 12.4.2018 PASSED BY THE PRINCIPAL MUNSIFF, ERNAKULAM IN IA NO.2482 OF 2018 IN OS NO.1241 OF 2016. EXHIBIT P3 TRUE COPY OF THE COMPLAINT DATED 21.4.2018 SUBMITTED BY THE 2ND PETITIONER BEFORE THE SUB-INSPECTOR OF POLICE, CHERANALLOOR POLICE STATION. EXHIBIT P4 TRUE COPY OF THE RECEIPT DATED 21.4.2018 RECEIVED FROM CHERANALLOOR POLICE STATION. EXHIBIT P5 TRUE COPY OF COMPLAINT DATED 21.4.2018 SUBMITTED BY THE 2ND PETITIONER BEFORE THE 3RD RESPONDENT COMMISSIONER OF POLICE, KOCHI CITY.** **EXHIBIT P6 SERIES (i) & (ii)- TWO PHOTOGRAPHS DEPICTING THE BLOCKAGE IN THE PATHWAY BY RESPONDENTS 5 TO 8.** **//TRUE COPY//** **P.A.TO JUDGE** **ami/** ## **“CR”** ## **ANIL K. NARENDRAN & ASHOK MENON, JJ. ---------------------------------------------W.P.(C)No.14533 of 2018** **----------------------------------------------** Dated this the 8[th] day of May, 2018 ## **JUDGMENT** ## **Anil K. Narendran, J.** The petitioners, who are husband and wife, have filed this writ petition under Article 226 of the Constitution of India seeking a writ of mandamus commanding respondents 3 and 4 to afford them adequate and effective police protection to use plaint D schedule property in Ext.P1 plaint, in terms of Ext.P2 order of the Principal Munsiff's Court, Ernakulam in I.A.No.2462 of 2018 in O.S.No.1241 of 2016. 2. On 27.04.2018, when this writ petition came up for admission, the learned Government Pleader was directed to get instructions. 3. Heard the learned counsel for the petitioners and also the learned Government Pleader appearing for respondents 1 to 4. 4. The 1[st] petitioner is the plaintiff in O.S.No.1241 of 2016, a suit for declaration and injunction filed against the 5[th] W.P.(C)No.14533 of 2018 :-2-: respondent herein, seeking a decree declaring that the plaintiff and his family members have absolute right over plaint D schedule property to the exclusion of the defendant and that, it is a private property of the plaintiff and his family members and that, the defendant has no right to use the said property in any manner whatsoever. The plaintiff has also sought for a decree of permanent prohibitory injunction restraining the defendant from obstructing or interfering with the peaceful use and enjoyment of plaint D schedule property by the plaintiff and his family members and from trespassing into plaint D schedule property or using the same in any manner and from committing any waste therein. 5. As per the plaint averments, plaint D schedule property is a private road owned by the plaintiff and his relatives, which forms part of 73 cents of land comprised in Sy.Nos.95/B-2 and 95/A-2 of Edappally North Village, originally owned by the plaintiff's grandfather late Ananthan. In the plaint, plaint D schedule property is described as a private road having an extent of 3.65 cents comprised in Sy.Nos.95/B-2 and 95/A-2 of Edappally North Village lying in the east-west direction, W.P.(C)No.14533 of 2018 :-3-: having a length of 159 feet and a width of approximately 10 feet at the eastern and western portions and 7 feet at the middle portion. The defendant owns plaint E schedule property having an extent of 4.99 cents comprised in Sy.No.95/14A/5 of Edappally North Village, originally owned by Elangoor Swaroopam. The defendant purchased the same from one Chakrapani. As per Document No.3526 of 1975 of the Sub Registrar Office, Edappally there is a road from the northeastern corner of the said property towards north leading to the road up to the tharavadu property of Chakrapani, which finally reaches the public road on the east. Therefore, the plaintiff would contend that the defendant has absolutely no right over plaint D schedule property, which is a private road owned by the plaintiff and his relatives. 6. The defendant entered appearance and filed written statement refuting the plaint claim. During the pendency of the suit, respondents 6 to 7 herein got themselves impleaded as additional defendants, claiming right over plaint D schedule property. 7. During the pendency of O.S.No.1241 of 2016, the 1[st] W.P.(C)No.14533 of 2018 :-4-: petitioner herein filed I.A.No.2462 of 2018 seeking an interim prohibitory injunction restraining the 5[th] respondent herein and anyone claiming through her from in any manner obstructing his actual use and enjoyment of plaint D schedule property for free ingress and egress to his property. The said interlocutory application was filed on the ground that the 5[th] respondent herein and her men objected the use of plaint D schedule property by the 1[st] petitioner for ingress and egress to his property. On 12.04.2018, when I.A.No.2462 of 2018 came up for consideration, counsel on both sides submitted 'no objection' to direct both parties to keep the present state of plaint D schedule property, as noted in commission report filed by Adv.Anoopa M.J., till the disposal of lis. Accordingly, by Ext.P2 order dated 12.04.2018 of the Principal Munsiff's Court, Ernakulam both parties were directed not to alter the present lie and nature of plaint D schedule property (pathway) and not to obstruct the use of the said pathway, until further orders. 8. On 21.04.2018, the 2[nd] petitioner submitted Ext.P3 complaint before the 4[th] respondent Sub Inspector of Police, Cheranalloor, wherein it is alleged that, in breach of Ext.P2 order W.P.(C)No.14533 of 2018 :-5-: of temporary injunction, respondents 5 to 8 herein obstructed the petitioners from bringing construction materials to plaint A schedule property through plaint D schedule pathway. Therefore, the 4[th] respondent was requested to take necessary steps to prevent them from causing any such obstruction and to render necessary protection to the petitioners. The 4[th] respondent acknowledged the receipt of Ext.P3 complaint vide Ext.P4 receipt dated 21.04.2018. 9. On 12.04.2018 itself, the 2[nd] petitioner submitted Ext.P5 complaint before the 3[rd] respondent Commissioner of Police alleging that, on 21.04.2018 at 11.30 am, despite Ext.P2 order of temporary injunction, respondents 5 to 8 herein, their men and agents obstructed the petitioners from bringing bricks in a Nissan lorry to plaint A schedule property, through plaint D schedule pathway, and the vehicle had to return without unloading the bricks. Therefore, the 2[nd] petitioner sought adequate and effective police protection to her and also to her family to bring construction materials to their property through the pathway mentioned as plaint D schedule property in Ext.P2 order of temporary injunction and for enjoying the said pathway W.P.(C)No.14533 of 2018 :-6-: in terms of the said order of injunction. 10. As held by the Apex Court in **Kanwar Singh Saini v.** **High Court of Delhi [(2012) 4 SCC 307]** an application under Order XXXIX, Rule 2A of the Code of Civil Procedure, 1908 is maintainable in a case where there is violation of interim injunction passed during the pendency of the suit and in a case where there is disobedience of the judgment and decree it has to be dealt with in execution proceedings under Order XXI, Rule 32 of the Code. 11. In **George Mirante v. State of Kerala [1990 (2) KLT 89]** this Court held that, in matters involving civil rights, or disputes regarding title and possession over property, it is not proper for this Court to interfere under Article 226 of the Constitution with an order for police protection. Police cannot be made the adjudicators of such disputes inter se between the parties, either regarding possession of property or regarding boundaries or regarding easements or the like. These are matters essentially within the domain of the civil courts. The parties should approach those courts and seek redress. Police does not have the right to decide on such disputes, nor is it W.P.(C)No.14533 of 2018 :-7-: proper or competent for them to do so. They do not also have the machinery for the purpose. It is outside the limits of the duties which are cast on them, which is to prevent breach of peace or commission of cognisable offences, and to preserve law and order. 12. In **George Mirante's case (supra)** this Court held further that, 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 another without an adjudication by any appropriate authority of the rights of either side. In all such cases, the proper remedy, for a party feeling aggrieved, is to approach the civil court for the 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 the power in such cases to enforce its orders under Order XXXIX, Rule 2A or Section 151 of the Code of Civil Procedure with police aid, if necessary, as was held by this Court in **Mohammed v. Mohammed Ali [1986 KLT 134]** . When such remedies are available, this Court should be loathe to direct interference by the police or to afford W.P.(C)No.14533 of 2018 :-8-: 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. 13. In **Madavana Masjidul Badariya Jamaath and another v. Seethi K.A. and others [2017 (4) KHC 770]** a Division Bench of this Court in which one among us [AKN (J)] was a member held that, in a proceedings under Order XXXIX, Rule 2A of the Code of Civil Procedure alleging disobedience of any injunction granted or other order made under Order XXXIX, Rule 1 or Rule 2 of the Code or breach of any of the terms in which the injunction was granted or the order made, the principles of criminal law (as to the manner of appreciation of evidence) should apply and the plaintiff will have to establish beyond any shadow of doubt that the defendants had committed disobedience or breach of the order of injunction. 14. In **Madavana Masjidul Badariya Jamaath's case (supra)** this Court held further that, the parties to the lis should not be allowed to flout the order of court and avoid actions under the W.P.(C)No.14533 of 2018 :-9-: guise of pendency of the substantial proceedings. The main object of Order XXXIX Rule 2A of the Code is to uphold the majesty of judicial orders, as otherwise, it would erode the faith of litigants in the Justice Delivery System. Therefore, whenever such applications are filed, trial courts should take up those applications notwithstanding the pendency of the suit. 15. Therefore, where there is disobedience or breach of an order of temporary injunction passed by the civil court under Order XXXIX, Rule 1 of the Code of Civil Procedure, the remedy open to the plaintiff/applicant is either to apply that court under Order XXXIX, Rule 2A of the Code seeking an order to attach the property of the person guilty of such disobedience or breach and for an order to detain such person in civil prison for a term not exceeding three months. In appropriate cases, the plaintiff/ applicant can invoke the inherent powers of the civil court under Section 151 of the Code, which includes the power to grant police protection to secure compliance of the order of temporary injunction. When there are adequate provisions under the Code which enables the civil court to enforce and implement its orders, the plaintiff/applicant cannot approach this Court under W.P.(C)No.14533 of 2018 :-10-: Article 226 of the Constitution of India seeking police protection to secure compliance of the order of temporary injunction. 16. In the instant case, the averments in Exts.P3 and P5 complaints made by the 2[nd] petitioner before the 3[rd] and 4[th] respondents would make it explicitly clear that, alleging breach of Ext.P2 order of temporary injunction by respondents 5 to 8 herein, their men and agents, the petitioners are seeking police protection, in order to bring construction materials to their property through plaint D schedule property and for enjoying the said pathway in terms of Ext.P2 order of temporary injunction. If there is any disobedience or breach of Ext.P2 order of temporary injunction, the remedy open to the 1[st] petitioner, who is the plaintiff in O.S.No.1241 of 2016 on the file of the Principal Munsiff's Court, Ernakulam, is either to apply that court under Order XXXIX, Rule 2A of the Code against the person or persons guilty of such disobedience or breach, or to invoke the inherent powers of that court under Section 151 of the Code, which includes the power to grant police protection, in appropriate cases, to secure compliance of the order of temporary injunction. W.P.(C)No.14533 of 2018 :-11-: 17. In the result, this writ petition is dismissed as not maintainable, without prejudice to the right of the 1[st] petitioner, who is the plaintiff in O.S.No.1241 of 2016 on the file of the Principal Munsiff's Court, Ernakulam, to move appropriate applications before that court for the alleged disobedience/ breach of Ext.P2 order of temporary injunction. No order as to costs. Sd/- **ANIL K. NARENDRAN JUDGE** Sd/- **ASHOK MENON JUDGE** ami/8.5.18