Andhra Pradesh High Court - Amravati

Vanaparthi Subramanyam vs The State Of Andhra Pradesh on 26 September, 2022

THE HON'BLE SRI JUSTICE CHEEKATI MANAVENDRANATH ROY

                     WRIT PETITION No.20555 of 2022

ORDER:-

          This Writ Petition for mandamus is filed to declare the

action of respondents 2 to 5 in not providing police aid for

implementing the permanent injunction decree passed in

O.S.No.264 of 2009, dated 14.03.2012, on the file of the learned

Additional Senior Civil Judge, Tirupathi, in favour of the

1st petitioner which in turn was confirmed in A.S.No.54 of 2012

on the file of the learned V Additional District Judge, Tirupathi,

as illegal and consequently sought direction to respondents 2 to

5 to provide police aid for implementing the aforesaid

permanent injunction decree passed by the competent civil

Court.

2. Heard learned counsel for the petitioners, learned

Assistant Government Pleader for Home appearing for

respondents 1 to 5 and Sri R. Ravi Kumar, learned counsel

appearing for the unofficial respondents 6 to 8.

3. The 1st petitioner is the plaintiff in O.S.No.264 of 2009 on

the file of the learned Additional Senior Civil Judge, Tirupathi.

The said suit was filed for grant of permanent injunction against

respondents 7 and 8 herein and two others by name

M. Anandamma and M. Sivakota Reddy. The said

M. Anandamma and M. Sivakota Reddy are not parties to the

present Writ Petition. Only defendants 3 and 4 in the said suit

are shown as respondents 7 and 8 in the present Writ Petition.

4. The said suit was decreed on 14.03.2012 in favour of the

1st petitioner granting decree of permanent injunction

restraining the defendants therein from interfering with the

possession of the 1st petitioner in respect of the plaint schedule

property.

5. Aggrieved by the said judgment of permanent injunction,

defendants 2 to 4 therein alone preferred an appeal in A.S.No.54

of 2012 on the file of the learned V Additional District Judge,

Tirupathi, against the 1st petitioner. The said appeal was

dismissed confirming the judgment of permanent injunction

passed by the trial Court, as per the judgment dated

27.06.2019.

6. The grievance of the 1st petitioner is that despite the fact

that there has been a permanent injunction decree passed by

the competent civil Court which in turn was confirmed by the

first appellate Court that the respondents 7 and 8 along with

respondent 6 have been interfering with the possession of the

1st petitioner in respect of the said land. Therefore, he has

approached the respondent - police officials seeking police aid.

However, the respondent - police officials are not providing any

police aid for effective implementation of the said permanent

injunction decree. Therefore, the 1st petitioner is before this

Court by way of filing this instant Writ Petition seeking grant of

police aid for effective implementation of the said permanent

injunction decree.

7. The said claim of the 1st petitioner for grant of police aid

has been primarily opposed by learned counsel appearing for

respondents 6 to 8 on the ground that the Second Appeal was

preferred by respondents 7 and 8 along with others on the file of

this Court in S.A.No.559 of 2019 and that the said appeal is

pending disposal before this Court. Therefore, he would submit

that as the matter did not attain finality that the 1st petitioner is

not entitled for grant of any police aid for implementation of the

said decree. Learned counsel for the unofficial respondents 6 to

8 would also oppose the Writ Petition on the ground that the

1st petitioner did not file any execution petition before the

executing Court under the provisions of Order XXI of Civil

Procedure Code and when he got an effective efficacious remedy

of seeking execution of the said decree by way of initiating

execution proceedings before the said Court that he cannot

invoke the jurisdiction of this Court under Article 226 of the

Constitution of India for grant of police aid. Therefore, he would

pray for dismissal of the Writ Petition.

8. Learned Assistant Government Pleader for Home

appearing for respondents - police officials would submit that

even though there is a decree of permanent injunction in favour

of the 1st petitioner passed by the competent civil Court which

was confirmed in the appellate Court, as the dispute arises out

of a civil suit in view of the decree passed by the civil Court that

usually the police will not interfere in the said civil dispute and

grant police aid. He would submit that if the civil Court which

passed the decree or this Court directs the police to provide

police aid for implementing the decree of permanent injunction

that the respondent - police officials would provide adequate

police aid to the 1st petitioner for effective implementation of the

said permanent injunction decree.

9. The record reveals that the 1st petitioner is the sole

plaintiff in O.S.No.264 of 2009 on the file of the learned

Additional Senior Civil Judge, Tirupathi. The said suit was filed

for permanent injunction against respondents 7 and 8 and two

others by name M. Anandamma and M. Sivakota Reddy.

The said suit was decreed granting permanent injunction in

favour of the 1st petitioner and against the defendants therein as

per decree dated 14.03.2012. The civil Court restrained the

defendants therein from interfering with the possession of the

1st petitioner in respect of the property covered by the plaint

schedule of the said suit. The appeal preferred by three of the

defendants in the said suit in A.S.No.54 of 2012 on the file of

the learned V Additional District Judge, Tirupathi, came to be

dismissed as per the judgment, dated 27.06.2019, confirming

the permanent injunction decree passed by the trial Court.

10. Although it is stated that the defendants therein preferred

second appeal in S.A.No.559 of 2019 to this Court and the same

is pending, learned counsel for the unofficial respondents herein

would fairly concede that no order of stay of execution of the

said permanent injunction decree was passed by this Court.

Therefore, as there is no order of stay granted against the said

permanent injunction decree, the said decree is in force. So, the

1st petitioner is entitled for grant of police aid for effective

implementation of the said permanent injunction decree passed

by the competent civil Court. The unofficial respondents herein

are not justified in interfering with the possession of the

1st petitioner in respect of the said land in spite of the fact that

there is a valid permanent injunction decree against them

passed by a competent civil Court not to interfere with the

possession of the 1st petitioner in respect of the said land.

11. It is well settled law that when a permanent injunction

decree was passed by the competent civil Court, the plaintiff in

the said suit is entitled for grant of police aid either by an order

passed by the Court which passed the said decree or by

an order passed by this Court in exercise of its jurisdiction

under Section 226 of the Constitution of India. The law in this

regard is not res integra and the same has been dealt with in

the case of Rai Naramma v. State of Andhra Pradesh1

wherein this Court held at para 7 as follows:

"It is now well settled law that only when there is a decree for permanent injunction and only when there is an order of temporary injunction in an interlocutory application which is made absolute after hearing both the parties, then only the Courts usually either the civil Court or the Writ Court, would grant police aid for effective implementation of the said permanent injunction decree or a temporary injunction order which is passed on merits. But when the ex parte ad-interim injunction is granted without hearing the respondents and when the same is not made absolute granting a temporary injunction order, till the disposal of the suit, on merits, the Courts will not usually order for grant of police aid for implementation of the ex parte ad-interim injunction order. Since it is not an order on merits after hearing both the parties, the Courts would be very slow in granting police aid, till the possession and rights of the parties are determined after enquiry based on evidence."

12. Therefore, as per the settled law when a permanent

injunction decree was passed in favour of the 1st petitioner,

he is entitled for grant of police aid for effective implementation

of the said permanent injunction decree.

13. Learned counsel for the unofficial respondents relied on

certain judgment in support of his contention. They are not

applicable to the present facts of the case. He has relied on the

judgment rendered in the case of Jatindra Nath Das v. State2.

That was a case where by violating the order of the temporary

injunction, the respondents therein made some illegal

constructions in the disputed land. Therefore, the petitioner in

whose favour the temporary injunction was passed, sought

2021(1) ALT 426

AIR 2011 CALCUTTA 26

police aid for demolition of the said illegal construction made in

violation of the temporary injunction order. Therefore, in the

said facts and circumstances of the case, the Calcutta High

Court held that the remedy is only before the civil Court that

passed injunction order and no mandamus can be issued

commanding police to provide police aid for demolition of the

said structures. The facts of the case are totally distinguishable

and the ratio laid in the above judgment is not applicable to the

present facts of the case.

14. He then relied on the judgment of the Division Bench of

the then High Court of Andhra Pradesh rendered in the case of

Rayapati Audemma v. Pothineni Narasimham3. It is held in

the said judgment that as there is no express provision in the

code for the purpose of granting police aid for implementation of

the temporary injunction order and as Order 39 Rule 2(a) of the

Civil Procedure Code does not deal with implementation and it

deals only with punishment for disobedience, the said

temporary injunction order can be implemented under Article

226 of the Constitution of India. The Division Bench has also

overruled the earlier judgment of the then Andhra Pradesh High

Court rendered in Criminal Revision Petition No.67 of 1959,

dated 22.07.1960.

AIR 1971 ANDHRA PRADESH 53

15. This judgment is more in favour of the 1st petitioner and

it is against the proposition that is now canvassed by learned

counsel for the unofficial respondents. The ratio laid in the

aforesaid judgment of the Division Bench clearly shows that

even though a provision is available to punish the respondents

for disobedience of the injunction and as there is no provision

for grant of police aid in the Civil Procedure Code that this

Court can grant police aid for implementation of the said

injunction order under Article 226 of the Constitution of India.

16. Therefore, in view of the ratio laid down in the aforesaid

judgments, the contention of unofficial respondents herein that

as the 1st petitioner got efficacious remedy of initiating

execution proceedings in the executing Court for the execution

of the said permanent injunction decree that he is not entitled

to police aid by way of filing the Writ Petition, cannot be

countenanced. The said contention holds no water.

17. The other judgments relied on by learned counsel for the

unofficial respondents rendered in the cases of Mst. Hajra v.

Abdul Majeed Matoo4, Smt. Maya Sen v. Bhawani

Mazumdar5, Shivamurthy Mahalingappa Kuchanaur v.

Dannammadevi                Cycle       Mart,      Rabakavi6,        Brahmdeo




    AIR 1986 JAMMU AND KASHMIR 84

    1997 (4) ICC 12 = 1997(2) Cal. L.T. 301

    AIR 1987 KARNATAKA 26


Chaudhary           v.       Rishikesh          Prasad      Jaiswal7,

Thazhapattathillath             Krishnan          Namboodiri          v.

Thazhapattathillath         Damodaran         Namboodiri    (Died)    by

L.R.8,    V.S.Alwar      Ayyangar       v.   Gurusamy    Thevar9     and

Y. Lakshmaiah v. Esso Eastern Inc10 are not applicable to the

present facts of the case.

18. Therefore, in view of the settled law in this regard as

discussed supra, the 1st petitioner alone is entitled for police aid

for effective implementation of the said permanent injunction

decree only against unofficial respondents 7 and 8, who are

parties to the said injunction decree. However, as it is stated

that Second Appeal is pending before this Court and that

unofficial respondents 7 and 8 are seeking stay of execution of

the said decree, the police aid can be granted subject to the

order of stay that may be granted in the Second Appeal by this

Court, if any.