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High Court of Judicature at Madras
THE HONOURABLE MR. JUSTICE E. PADMANABHAN
S. Kalimuthu
Versus
S. Arumugam and 2 others
C.R.P. No. 1506 of 1998
Decided On : 08-07-1998
INJUNCTION - POLICE PROTECTION - AD INTERIM INJUNCTION - EXTENSION OF INJUNCTION - FAILURE TO FILE COUNTER AFFIDAVIT - JURISDICTION OF COURT - SECTION 151 CPC - POLICE AID - CONDITIONS FOR GRANTING POLICE AID - MAINTAINABILITY OF APPLICATION FOR POLICE PROTECTION - AD INTERIM INJUNCTION - ORDER 39 RULES 1, 2, 3 & 3A CPC - INHERENT POWERS OF COURT - SECTION 151 CPC - IMPLEMENTATION OF ORDERS OF INJUNCTION - DUTY OF COURTS - CONTEMPT OF COURT - ORDER 21 RULE 32 CPC - PUNISHMENT FOR DISOBEDIENCE OF INJUNCTION.
Fact of the Case:
Plaintiffs filed a suit for declaration of title and consequential relief of permanent injunction against the defendants. During the pendency of the suit, plaintiffs filed an application for ad-interim injunction restraining the defendants from interfering with their possession and enjoyment of the suit property. The Court granted an ad-interim injunction order valid till a certain date. The defendants were served with the injunction order and appeared through their advocate on the next hearing date. The defendants were granted time to file a counter affidavit and the injunction order was extended from time to time. However, the defendants failed to file their counter affidavit despite several extensions of time granted by the Court. The plaintiffs then filed an application under Section 151 CPC seeking police protection to give effect to the orders of injunction already passed. The Court below allowed the application and directed the police to give effect to the orders of injunction. The defendants challenged the order of the Court below in revision.
Finding of the Court:
The Court held that the Court below had the jurisdiction to direct police assistance under Section 151 CPC to enforce the orders of injunction. However, the Court found that the Court below had not addressed itself to the three aspects required to be considered before granting police aid, namely, (i) whether the order of injunction passed is not being obeyed, (ii) whether the plaintiffs who had secured the order of injunction are not in a position to enjoy the benefits of the order, and (iii) what is the conduct of the defendant. The Court also found that the Court below had not recorded any reasons for granting police aid. Therefore, the Court set aside the order of the Court below and remitted the matter back for fresh disposal.
Issues: 1. Whether the Court below had the jurisdiction to direct police assistance under Section 151 CPC to enforce the orders of injunction? 2. Whether the Court below had properly considered the requirements for granting police aid before passing the impugned order?
Ratio Decidendi: 1. The Court held that the Court below had the jurisdiction to direct police assistance under Section 151 CPC to enforce the orders of injunction. The Court relied on the decision of the Division Bench of the Madras High Court in Sri-la-Sri Sivasubramanya Ananda Swami v. Sri-la-Sri Arunachalasamy Chidambaram and Another, 1993 (1) MLJ 274, which held that the Civil Courts have the inherent powers to execute or direct the police to render such assistance or aid to enforce its orders of injunction. 2. The Court held that the Court below had not properly considered the requirements for granting police aid before passing the impugned order. The Court relied on the decision of Srinivasan, J. in Coimbatore Pioneer Mills Ltd. v. M/s. Chandra Textiles, 1991 (1) L.W. 52, which held that the Court must satisfy itself that the order of injunction passed by it is not obeyed by the other party and the party who has secured the order is not in a position to enjoy the benefits of the order because of the conduct of the other party and police interference is an absolute necessity before granting police aid.
Final Decision: The Court allowed the revision petition, set aside the order of the Court below, and remitted the matter back for fresh disposal. The Court directed the Court below to consider the application for police protection afresh and pass fresh orders according to law, after considering the three aspects indicated by the Court.
1. This Revision Petition has been preferred, being aggrieved by the fair and final order dated 24. 1998 made in I.A.No.324 of 1998 in O.S.No.411 of 1997 on the file of the Principal District Munsif Court, Sankarankoil in directing police protection to the respondents. This Revision has been preferred under Section 115 of the Code of Civil Procedure. For convenience, the parties to this revision will be referred as arrayed in the suit O.S.No.411 of 1997. The first defendant in the suit is the Revision Petitioner herein.
2. The plaintiffs 1 and 2 instituted the suit O.S.No.411 of 1997 against the defendants 1 & 2 seeking the relief of declaration of title and consequential relief of permanent injunction forbearing the defendants or their subordinates or men or agents from in any manner interfering with the plaintiff’s possession and enjoyment of the suit property.
3. Pending the suit, the plaintiffs filed I.A.No.1688 of 1997 under Order 39 Rule 1 & 2 read with Section 151 C.P.C. seeking the relief of ad-interim injunction restraining the defendants from interfering with the plaintiffs’ possession and enjoyment of the suit property. The plaint was presented and taken on file on 25th November 1997. So also the injunction application. On 211. 1997, the Court below passed orders of ad- interim injunction under Order 39 Rule 1 & 2 to be in force till 12. 1997. The said order of injunction reads thus:
“ORDER: Heard. Perused documents No.1 to 4. Prima facie case exists. Ad interim injunction given under Order 39 Rule 1 & 2 till 12. 97 Affidavit 211. 1997. Notice 12. 97 Id/P.J., Prl.District Munsif, 2197. ”
4. On 12. 97 the injunction application was called. However, the Presiding Officer was on casual leave and the matter was reposted to 212. 1997. The defendants 1 and 2 have been served for the hearing on 12. 1997 itself. On 212. 1997, the defendants 1 and 2 entered appearance through their advocate and they were granted time till 21. 1988 for filing counter. The Court below had extended the injunction order till 21. 1998. The injunction application was called on 21. 98, 4. 98, 4. 98, 4. 98, 14. 98, 24. 98, 26. 98 and the defendants have not filed their counter in all those hearings.
5. At the instance of the defendants, the Court below had extended time for filing counter affidavit. At the same time injunction has been extended from time to time. Ultimately on 26. 1998, the Court below had extended the orders of injunction till 18. 1998. As such, it is evident from 212. 1997 to 26. 1998 for a period of six months, the defendants have not cared to file their counter affidavit in the injunction application.
6. It is also to be pointed out that the Court below had extended time to file counter affidavit as well as extended the orders of ad interim injunction from time to time without disposing of the injunction application as required by Order 39 Rule 3 A. Infact as seen from the orders passed by the Court below in the injunction application No. 1688 of 1997, the provisions of Order 39 Rule 3 and 3 A had not been followed nor the Court endeavoured to give a disposal to the injunction application as required by Rule 3A of Order 39.
7. It may be that the defendant had been seeking time for filing counter for several months, However, there is no justification to grant extension for a period of six months and above to enable the defendants to file a counter affidavit. If the defendants fail to file the counter affidavit, it would have been proper on the part of the Court below to grant one or two extensions for filing counter affidavit, failing which it ought to have disposed of the injunction application on merits, as required by Rule 3A of Order 39. These facts, which are not in dispute would show that the Court below had not followed the letter and spirit of Order 39 Rule 3 & 3 A.
8. However, strictly speaking in the absence of challenge to the orders of ad interim injunction by the defendants in the suit, this Cou
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