Item No.7
THE HON'BLE THE CHIEF JUSTICE HIMA KOHLI
AND
THE HON'BLE SRI JUSTICE B. VIJAYSEN REDDY
W.A.No.196 of 2020
JUDGMENT: (Per the Hon'ble the Chief Justice Hima Kohli)
1. The present appeal is directed against an order dated 06.02.2020
passed in W.P.No.29090 of 2019 filed by the respondent No.5/writ
petitioner praying inter alia for issuance of a writ of Mandamus declaring the action of the respondents No.1 to 4/local police in not providing police aid to her against the appellant/respondent No.5 and her property, during the subsistence of an injunction order dated 24.03.2015 passed by the learned Junior Civil Judge, Peddapalli in I.A.No.44 of 2015 in O.S.No.15 of 2015 filed by her, as illegal and arbitrary.
2. By the impugned order, the respondent No.4 has been directed to extend police aid to the respondent No.5/writ petitioner to implement the ad interim injunction order dated 24.03.2015, till such time the said order is either vacated/modified/set aside by the learned Civil Judge or the Appellate Court or till I.A.No.333 of 2015 filed therein subsequently by the respondent No.5/writ petitioner for seeking police aid is disposed of.
3. The main grievance of the appellant/respondent No.5 is that the captioned writ petition was disposed of by the learned Single Judge at W.A.No.196 of 2020 Page 1 of 4 the stage of admission itself without issuing notice to the appellant/respondent No.5 and without affording an opportunity to him to put forth his case, thus violating the principles of natural justice.
4. Ms. B.Sapna Reddy, learned counsel for the appellant/respondent No.5 states that there was no occasion for the respondent No.5/writ petitioner to have filed a petition under Article 226 of the Constitution of India for seeking enforcement of an ex parte interim order passed by the learned Civil Judge when an appropriate remedy is provided in the Code of Civil Procedure for seeking enforcement of the injunction order.
5. Mr. K. Pawan Kumar, learned counsel for the respondent No.5/writ petitioner does not dispute the fact that no notice was issued to the appellant/respondent No.5 in the captioned petition before the impugned order came to be passed and that the said order was passed at the stage of admission itself.
6. We have enquired from learned counsel for the respondent No.5/writ petitioner as to whether his client had invoked the provisions of Order XXXIX Rule 2A CPC, calling upon the learned Civil Judge to proceed against the appellant/respondent No.5, on the ground that he had violated the ex parte interim order dated 24.03.2015 passed in I.A.No.44 of 2015 moved in O.S.No.15 of 2015 pending on the file of the learned Civil Judge. Learned counsel explains that the respondent No.5/writ petitioner did file I.A.No.333 W.A.No.196 of 2020 Page 2 of 4 of 2015 for seeking appropriate police aid, which is pending. Simultaneously, I.A.No.335 of 2015 was filed under Order XXXIX Rule 2A CPC against the appellant/respondent No.5 and some others stating inter alia that they had violated the interim order.
7. Admittedly, notice was issued by the learned Civil Judge on the captioned applications. Despite that, the respondent No.5/writ petitioner proceeded to file the aforesaid misconceived writ petition seeking to invoke the extraordinary powers of judicial review vested in a constitutional Court for enforcement of an order passed by the learned Civil Judge on a stay application moved by her in a civil suit, which is most unacceptable and an unheard of procedure.
8. There was no occasion for the respondent No.5/writ petitioner to have approached the High Court under Article 226 of the Constitution of India only for seeking enforcement of an order passed by the learned Civil Judge in a civil suit. Such a practice is deprecated. If the respondent No.5/writ petitioner did have a grievance that the learned Civil Judge had not passed appropriate orders on the applications moved by her, it was for her to approach the Appellate Court with a grievance.
9. In view of the aforesaid discussion, the impugned order is accordingly quashed and set aside as unsustainable. It is for the respondent No.5/writ petitioner to seek appropriate legal recourse, as contemplated under the Code of Civil Procedure, if aggrieved by the W.A.No.196 of 2020 Page 3 of 4 failure of the learned Civil Judge in passing any orders in the interlocutory application.
10. The present appeal is accordingly allowed and disposed of along with the pending applications, if any.
______________________________ HIMA KOHLI, CJ ______________________________ B. VIJAYSEN REDDY, J 01.03.2021 JSU/pln W.A.No.196 of 2020 Page 4 of 4