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High Court of Judicature at Calcutta
DIPANKAR DATTA
Joydev Das
Versus
Srimati Khandubala Das & Another
C.O. 2017 of 2011
Decided On : 08-12-2011
INJUNCTION - POLICE HELP - SECTION 151, CIVIL PROCEDURE CODE - SUMMARY: In a suit for declaration and injunction, the trial court granted an ex-parte ad-interim injunction restraining the petitioner from disturbing the possession and enjoyment of the suit property by the opposite party no.1 and from obtaining supply of electricity in the portion of the suit property under his occupation. The petitioner filed a written objection to the application for injunction, denying the material allegations levelled against him and claiming that he had obtained liberty from the trial court to obtain supply of electricity. The trial court, after hearing the parties, disposed of the application by maintaining the earlier order of temporary injunction but granting the petitioner liberty to obtain supply of electricity. The opposite party no.1 filed an appeal against the order, which was dismissed for default. The opposite party no.1 then filed an application under Section 151 of the Code praying for police help to ensure compliance of the order of injunction granted by the trial court by the petitioner. The petitioner opposed the application by filing a written objection, denying the material allegations levelled by the opposite party no.1. The trial court allowed the application for police help, holding that the opposite party no.1 had established attempted or actual violation of/disobedience to an order of Court. The petitioner filed a revisional application under Article 227 of the Constitution challenging the order of the trial court. The High Court allowed the revisional application, holding that the trial court had acted in flagrant violation of the fundamental principles of law and Justice causing miscarriage of justice in the exercise of his jurisdiction by granting police help without recording a specific finding that the petitioner had indeed indulged in acts of commission amounting to violation of or disobedience to the order of injunction and/or is an attempt to violate/disobey.
Fact of the Case:
The petitioner's mother filed a suit for declaration and injunction against him, seeking a declaration that he has no right, title, and interest in the suit property and an injunction restraining him from disturbing her peaceful possession and enjoyment of the property. The trial court granted an ex-parte ad-interim injunction restraining the petitioner from disturbing the possession and enjoyment of the suit property by the opposite party no.1 and from obtaining supply of electricity in the portion of the suit property under his occupation. The petitioner filed a written objection to the application for injunction, denying the material allegations levelled against him and claiming that he had obtained liberty from the trial court to obtain supply of electricity. The trial court, after hearing the parties, disposed of the application by maintaining the earlier order of temporary injunction but granting the petitioner liberty to obtain supply of electricity. The opposite party no.1 filed an appeal against the order, which was dismissed for default. The opposite party no.1 then filed an application under Section 151 of the Code praying for police help to ensure compliance of the order of injunction granted by the trial court by the petitioner.
Finding of the Court:
The High Court found that the trial court had acted in flagrant violation of the fundamental principles of law and Justice causing miscarriage of justice in the exercise of his jurisdiction by granting police help without recording a specific finding that the petitioner had indeed indulged in acts of commission amounting to violation of or disobedience to the order of injunction and/or is an attempt to violate/disobey.
Issues: Whether the trial court was justified in granting police help under Section 151 of the Code without recording a specific finding that the petitioner had indeed indulged in acts of commission amounting to violation of or disobedience to the order of injunction and/or is an attempt to violate/disobey.
Ratio Decidendi: The High Court held that an order for police help cannot be made on the mere asking of a party but the inherent power must be exercised with care, caution and circumspection after reaching a satisfaction that the party urging the Court to come to his aid has, without any iota of doubt, been able to establish attempted or actual violation of/disobedience to an order of Court.
Final Decision: The High Court allowed the revisional application and set aside the order of the trial court granting police help.
1. The opposite party no.1, being the mother of the petitioner, instituted a suit for declaration and injunction before the trial Court impleading him as defendant no.1. She sought relief of declaration to the effect that the petitioner has no right, title, and interest in respect of the suit property and for injunction restraining him from disturbing her peaceful possession and enjoyment of such property. The defendant no. 2 in the suit is the Assistant Engineer of the West Bengal State Electricity Company Limited (hereafter the company).
2. In connection with the suit, an application under Order 39 Rules 1 and 2 read with Section 151, Civil Procedure Code was filed by the opposite party no.1. While praying for an order of temporary injunction on the petitioner not to disturb her peaceful possession and enjoyment of the suit property, she also prayed for an order restraining the petitioner from changing the nature and character of the suit property and from obtaining supply of electricity in the portion of the suit property under his occupation.
Upon hearing the opposite party no. 1, the trial Court by order dated July 15, 2009 granted ex-parte ad-interim relief as prayed for by her.
3. After service of summons, the petitioner entered appearance in the suit and contested the application for temporary injunction by filing a written objection. The petitioner pleaded in his written objection to the application for injunction that the suit property originally belonged to his father. On the death of his father, the opposite party no.1, the petitioner and his siblings inherited the same along with other non-suit property in ejmali. The family having expanded, the petitioner constructed a house in a portion of the suit property and started residing therein with his family after amicable partition. It was alleged therein that to deprive him of the suit property, the opposite party no.1 was claiming that the suit property was her purchased property. Since his possession was being disturbed and/or interfered with by the opposite party no.1, he has instituted a previous suit praying for a declaration that he has 1/10th share in the suit property, which is pending. Allegation levelled against him by the opposite party no.1 to the effect that he has been disturbing her possession or attempting to change the nature and character of the suit property was categorically denied.
4. The trial Judge heard the parties and by order dated August 24, 2009 disposed of the said application. The earlier order of temporary injunction was maintained except that the petitioner was granted liberty to obtain supply of electricity in the portion of the suit property under his occupation.
5. The petitioner in due course of time filed his written statement in the suit within the time stipulated by the trial Court. The suit is pending for adjudication.
6. The opposite party no.1 carried the order dated August 24, 2009 in appeal, feeling aggrieved by the liberty granted to the petitioner to obtain supply of electricity. In connection therewith, an application for stay was filed which the petitioner opposed by filing a written objection. By an order dated August 2, 2010, the appeal stands dismissed for default without any steps having been taken for its restoration by the opposite party no.1.
7. It was at this stage that the opposite party no.1 filed an application under Section 151 of the Code praying for police help to ensure compliance of the order of injunction granted by the trial Court by the petitioner. She alleged therein that in clear disobedience of the order of injunction, the petitioner was attempting to disturb her possession and in course of giving effect to his ill motive of changing the nature and character of the suit property had physically harmed her and her other two sons for which a complaint had to be lodged with the local police.
8. The petitioner opposed the application by filing a written objection wherein he denied the mate
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