Bombay High Court
Vetal Navnath Deve And Ors vs Santaram Krushna Dive Decd. Thr. ... on 18 October, 2023
Bench: Amit Borkar
2023:BHC-AS:31213
21-wp13753-2022.doc
AGK
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.13753 OF 2022
Vetal Navnath Deve & Ors. ... Petitioners
V/s.
Santaram Krushna Dive, deceased
thr heirs & LRs Popat S. Dive & Ors. ... Respondents
Mr. Prasad P. Kulkarni for the petitioners.
Mr. Ashok M. Misal for respondent No.4.
CORAM : AMIT BORKAR, J.
DATED : OCTOBER 18, 2023
P.C.:
1. By this writ petition under Article 227 of the Constitution of
India, the petitioners/original plaintiffs are challenging order of
the Trial Court rejecting application for police protection in
furtherance of order of temporary injunction. The Trial Court
rejected the application on the ground that prima facie case has
not been made out as to how opponent No.4 is causing
interference. Report filed with police station by the plaintiffs shall
be dealt with by the police authorities as per law. Moreover, it is
necessary for the petitioners to initiate proceedings under Order
39 Rule 2A of the Code of Civil Procedure, 1908 for breach of the
order of temporary injunction.
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2. It is not in dispute that the Trial Court by order dated 27 July
2021 restrained defendant No.4 from causing interference with
the possession of the plaintiffs over the suit property.
3. The petitioners filed application under Section 151 of the
Code of Civil Procedure, 1908 alleging that defendant No.4 is
disturbing their possession over the suit property despite order of
the Court. Huge mob supports defendant No.4. Despite filing
complaint with the police station, no cognizance is taken by the
police officials. The petitioners, therefore, sought direction to
provide police protection. In the said facts, the power of the Court
to grant police protection under Section 151 of the Code of Civil
Procedure, 1908 is no longer res integra in view of the judgment of
this Court in Nirabai J. Patil v. Narayan D. Patil reported in
2004 (1) Mh.L.J. 1058. This Court in paragraphs 7 and 8 has held
as follows:
"7. The aforesaid observations made by the learned Single
Judge of this Court are very relevant for the present case. If
Civil Court which has passed the order of temporary
injunction takes a view that there is no power vested in the
Court to direct the police to grant assistance for enforcing or
for implementation of the order of temporary injunction, the
very purpose of granting order of temporary injunction may
be frustrated in a given case. It is the duty of every police
Officer to enforce the law of the land. The duties of police
officers are reflected in Section 64 and Section 66 of the
Bombay Police Act, 1951. In my opinion, the view taken by
the learned Trial Judge that there is no provision for police
aid for execution of interim order, is totally incorrect. The
learned Judge failed to appreciate that he has a power under
Section 151 of the said Code to pass the order directing that
21-wp13753-2022.doc
police help should be made available provided facts of the
case warrant passing of such order.
8. As observed by this Court in the aforesaid judgment,
the grant of police aid is an extreme step and therefore order
for grant of police help or police assistance cannot be made
unless the Court is fully convicted about the existence of
grave emergency such as apprehension of violence by the
persons against whom the order has been passed. It is very
difficult to give exhaustive list of circumstances in which the
Court can exercise the said power. However, said power is to
be exercised with caution and the said power can be
exercised only after the Court is fully convinced of existence
of grave situation warranting exercise of said power."
4. Learned advocate for the respondent opposed the writ
petition relying on the judgment of the Apex Court in My Palace
Mutually Aided Co-operative Society v. B. Mahesh & Ors.
in Civil Appeal No.5784 of 2022 decided on 23 August 2022, The
Apex Court in the said judgment held that power under Section
151 of the Code of Civil Procedure, 1908 can be exercised only
where no remedy has been provided for under any provisions of
the Code of Civil Procedure, 1908. It is also held that inherent
power cannot be used in conflict of any other existing provision or
in case remedy has been provided under the provisions of the Code
of Civil Procedure, 1908.
5. Learned advocate for the respondent is unable to point out
any provision which confers right on the plaintiffs to apply for
police protection in the Code of Civil Procedure, 1908. No
provision in conflict with the exercise of powers under Section 151
granting police protection is pointed out.
21-wp13753-2022.doc
6. Section 151 of the Code of Civil Procedure, 1908 enacted
recognizing inherent powers of the Court to make such orders as
may be necessary for the ends of justice or to prevent of abuse of
process of Court. Once the order of injunction is passed by the
Court, if compliance with such order creates law and order
situation and once it is proved that the plaintiffs despite being
entitled are not able to get benefit of the order, the Court has
power to grant police protection. Therefore, in my opinion, the
judgment in the case of My Palace Mutually Aided CHS
(supra) is inapplicable.
7. Since the applicant has filed a complaint with the police
station alleging disturbance of his possession over the suit property
and lack of cognizance by the concerned police officers, in my
opinion, the petitioner has made out a case for grant of relief.
Hence, following order:
a) Impugned order dated 18 February 2022 passed by Learned
Civil Judge Senior Division, Barshi below Exhibit 37 in Special
Civil Suit No.35 of 2021 is quashed and set aside;
b) Application filed by the petitioners below Exhibit 37 in
Special Civil Suit No.35 of 2021 is allowed;
c) The concerned police station shall grant police protection,
subject to payment of necessary charges as are required;
8. The writ petition stands disposed of in above terms. No
costs.
(AMIT BORKAR, J.)
