Gujarat High Court
Samatbhai Nathubhai Vanjar vs Hasmukhbhai S/O Bhikhabhai Shankhat on 19 June, 2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 7948 of 2025
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE MAULIK J.SHELAT
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Approved for Reporting Yes No
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SAMATBHAI NATHUBHAI VANJAR
Versus
HASMUKHBHAI S/O BHIKHABHAI SHANKHAT & ANR.
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Appearance:
MR A A ZABUAWALA(6823) for the Petitioner(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE MAULIK J.SHELAT
Date : 19/06/2025
ORAL JUDGMENT
1. Heard the learned Advocate Mr. A. A. Zabuawala for the
petitioner.
2. The present application is filed under Article 227 of the
Constitution of India, seeking the following reliefs:
"A. YOUR LORDSHIPS MAY KINDLY BE PLEASED TO, admit and allow
this application, in the interest of justice.
B. YOUR LORDSHIPS MAY KINDLY BE PLEASED TO, quash and set aside
the order passed Dt: 19.12.2024 passed by Learned Principal Senior Civil
Judge, at Unain matter Exhibit No.17 in matter being Regular Civil Suit
No.60 of 2017; and further be pleased to grant the prayer prayed by the
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petitioner; in interest of Justice. (Annexure - A)
C. YOUR LORDSHIPS MAY KINDLY BE PLEASED TO, to grant the
application which was preferred at Exhibit No.17 in pending Regular Civil
Suit No.60 of 2017; and further be pleased to grant the prayer prayed by the
petitioner; in interest of Justice. (Annexure-A)
D. YOUR LORDSHIPS MAY KINDLY BE PLEASED TO, grant such other
and further relief as deemed fit in the nature of the case."
3. The parties will be referred to as per their original positions
in the suit.
4. To appreciate the controversy germane in the writ
application, the following facts need attention:
4.1. The petitioner herein is the original plaintiff, whereas the
respondent herein is the original defendant. The petitioner-
plaintiff has filed Regular Civil Suit No. 60 of 2017 against
the respondent-defendant, seeking declaration and
permanent injunction, alleging that defendant is interfering
with easementary right of plaintiff, whereby prevented from
approaching to his agricultural farm.
4.2. The injunction application pending the suit was filed below
Exh.5, which came to be allowed by the trial court vide its
order dated 24th November, 2017, whereby the Trial Court
directed the defendant not to create any hindrance for the
plaintiff in the way which is the subject matter of the suit.
4.3. It has been alleged that the defendant, in clear defiance of
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the aforesaid order, tried to interfere with the easementary
right of the plaintiff by creating hindrance in way of the
plaintiff. Thereby, the plaintiff was constrained to file the
impugned application below Exh.17 on 09/02/2018,
contending, inter alia, that to give full effect of injunction
order and to reach his agriculture farm, police protection
may be granted at the cost of plaintiff. The defendant has
objected such application.
4.4. For any reasons, the impugned application was remained
pending for years together and was finally heard and rejected
by the Trial Court vide its impugned order dated 19th
December, 2024.
4.5. It further appears from bare reading of the impugned order
that an application filed by the plaintiff under Order 39, Rule
2(A) of the Code of Civil Procedure, 1908 (hereinafter
referred to as "CPC"), is also pending for its adjudication.
5. Feeling aggrieved and dissatisfied with the impugned order,
the original plaintiff has preferred the present writ
application on 29th May, 2025.
6. Submissions on behalf of the Petitioner-Plaintiff:
6.1. Learned Advocate Mr. Zabuawala would submit that the
impugned order in writ application is ex facie erroneous,
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perverse and contrary to the settled principle of law and
requires to be interfered with by this Court while exercising
its power under Article 227 of the Constitution of India.
6.2. Learned Advocate Mr. Zabuawala would further submit that
the Trial Court has erroneously observed that as an
application for breach of injunction filed under Order 39,
Rule 2(A) of the CPC is pending, thereby, the impugned
application cannot be entertained. It is submitted that it is a
settled legal position of law that the power of the trial court
to grant the relief as prayed for in the impugned application
is independent and not dependent upon the outcome of an
application filed under Order 39, Rule 2(A) of CPC.
6.3. Learned Advocate Mr. Zabuawala would submit that when it
has been reported to the trial court that the defendant was
trying to create hindrance in the way of the plaintiff, whereby
the injunction so granted in favour of the plaintiff was
interfered with by defendant without observing due respect
to such injunction order then, it was incumbent upon the trial
court to allow the request of the plaintiff.
6.4. To buttress his arguments, he is relying upon the following
two authorities:
(i) Hemant Vasant Jagtap V/s. Haji Abdul Malik Haji
Yunusisa reported in (2023) SCC OnLine Bom 246;
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(ii) Meera Chauhan V/s. Harsh Bishnoi and another
reported in (2007) 12 Supreme Court Cases 201.
6.5. Making the above submissions, he requests this Court to
allow the present writ application.
7. Heard learned Advocate Mr. Zabuawala for the petitioner at
length.
8. No other and further submissions are made.
ANALYSIS
9. The facts which are recorded hereinabove are not in dispute.
The impugned application came to be filed by the plaintiff in
the year 2018, complaining of the alleged act of the
defendant to create hindrance in the way of plaintiff, despite
the order passed by the Trial Court allowing the injunction
application in favour of the plaintiff. After going through the
impugned application and the order passed thereon by the
Trial Court, there is nothing to suggest or prove that the
defendant has, in fact, created any hindrance in the way of
the plaintiff as alleged.
10. When the plaintiff is complaining of an act of the defendant,
which prima facie amounts to a breach of the order passed by
the Trial Court, satisfactory and cogent evidence should have
been brought on record by the plaintiff to get the relief as
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prayed for in the injunction application, which is found to be
missing in the present case. In this background of facts,
when the trial court has observed that evidence is yet to be
led by the parties either in support of or in defence of the
pending application filed under Order 39, Rule 2(A) of CPC,
such an approach on the part of trial court can neither be
erroneous one nor perverse, nor arbitrary, as the case may
be, as submitted by learned Advocate Mr. Zabuawala.
11. There is no cavil that the Trial Court once reported a fact that
its order is not being complied with by either of the parties to
whom such direction was issued and if there are supportive
material produced on record which satisfies the conscious of
the Court, it would always be open for the Court to exercise
its power under Section-151 of the CPC to grant adequate
relief in favour of applicant, whereby the order which is
alleged to have been breached can be restored back to its
original form. To maintain the rule of law, the court is
supposed to exercise its power given under Section-151 of
the CPC. At the same time, such discretionary power given to
Civil Court cannot be exercised in a mechanical or tardily, as
all discretionary powers require to be exercised with due
care and caution, so as not to give any extra edge to litigant.
12. So far as, the authorities which are cited in support of
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submissions by the learned Advocate Mr. Zabuawala are
concerned, both these decisions are not going to carry the
case of the petitioner further, which is not at all applicable to
the facts of the present case, except for the proposition of
law that Civil Court has the power to grant police protection
by exercising its power under Section-151 of the CPC but
with due care and circumspection which can be seen from
underline - highlighted portion of the judgements.
13. To further deliberate upon such decisions and how it would
not be applicable, I discuss briefly as under:
13.1. In the case of Hemant (supra), after being fully convinced
with the case of applicant that the defendant had violated the
injunction order and the facts demanded that police
protection was required for the enforcement of the
injunction, the Bombay High Court has exercised its power
under Section-151 of the CPC, irrespective of the pendency
of an application filed under Order 39, Rule 2(A) of CPC. The
relevant observations made in this regard reads as under:
"15. In this connection, in the judgment of this Court in Nirabai J. Patil v.
Narayan D. Patil, (2004) 1 Mah LJ 1058 this Court has held as under:
"5. Section 36 of the code of Civil Procedure (hereinafter referred to as
said Code) provides that the provisions of the said Code relating to
execution of decree are also applicable to execution of orders insofar as
they are applicable. Under the provisions of Rule 32 or Order XXI, mode
is prescribed for execution of decree for injunction. Insofar as decree for
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injunction is concerned, the same can be executed by attachment of
property of the person disobeying the decree for injunction or by detention
of such person or by both. Rule 2-A of Order XXXIX of the said Code
empowers the Court to penalise the person who has disobeyed the order of
temporary injunction. Rule 11 of Order XXXIX of Code of Civil Procedure
permits the Court to strike out defence of defendant who commits breach
of an order of the Court. The object of all the said provisions is to ensure
that the orders passed by the Court of law are implemented and obeyed by
all concerned. Section 151 of the said Code saves inherent power to Civil
Court to make such orders as may be necessary for meeting the ends of
justice. Some High Courts have taken a view that under section 151 of the
said Code, Court has power to direct the Police Authorities to give
necessary aid for implementation or for enforcing the order of temporary
injunction.
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." (emphasis supplied)
16. Thus, in appropriate cases where the Court is fully convinced about
existence of grave emergency, such as apprehension of violence by the persons
against whom the order has been passed, police protection can be provided for
enforcement of an order of injunction under the provisions of section 151 of
the Civil. In the present case, it was specifically pleaded by the plaintiffs in their
application that the defendant No. 1 caused violence on January 8, 2022 on
account of which he came to be arrested. True it is that, a counter-allegation is
made by defendant No. 1 against the plaintiffs of indulging in similar kind of
violence leading to their arrest. Without going into the merits of the allegations
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made by rival parties, an inescapable conclusion that emerges from the
pleadings raised in application at Exhibit-52 and reply filed therein, is that
some degree of violence has taken place at the site. In these circumstances, it
can safely be inferred that exceptional circumstances do exist where power
under section 151 of providing police protection for enforcement of the order of
temporary injunction ought to have been exercised.
17. This Court would have been loath in ordering police protection for
enforcement of injunction order. But it is the brazen stand of defendant
No. 1 which is worrisome. Far from showing a remorse for his action of
continuance in possession contrary to order of injunction, defendant No. 1
continued to justify his action even before this Court and demanded that this
Court must expediate his appeal rather than considering the petition on merits."
(emphasis supplied)
13.2. Likewise, in the case of Meera Chauhan (supra), the
Honourable Apex Court has reiterated the principle on the
issue as regards granting police protection by Civil Court
exercising its power under Section-151 of CPC. Wherein also,
the Hon'ble Apex Court has categorically observed that such
power is to be exercised sparingly in a case of necessity. The
relevant observation made by the Hon'ble Apex Court in the
case of Chauhan (supra), reads as under:
"14. Before we deal with this question of possession as to who was in actual
possession at the relevant point of time it would be appropriate to note that
the order for restoration was passed by the trial court on an application
under Section 151 of the Code of Civil Procedure. A question may arise
whether such an application can be entertained by the court when specific
provision under Order 39 of the Code of Civil Procedure has been made for
grant of injunction in the form of mandatory order in the exercise of power
under the said order. Therefore to decide this aspect of the matter, let us
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consider the scope of Section 151 of the Code of Civil Procedure. Section 151
reads as under:
"151. Saving of inherent powers of Court.- Nothing in this Code shall
be deemed to limit or otherwise affect the inherent power of the
Court to make such orders as may be necessary for the ends of
justice or to prevent abuse of the process of the Court."
15. On a bare perusal of Section 151 of the Code of Civil Procedure, it
cannot be said to be in dispute that Section 151 confers wide powers on the
court to make such orders as may be necessary for the ends of justice or to
prevent abuse of the process of the court.
16. The power of Section 151 to pass order of injunction in the form of
restoration of possession of the code is not res integra now.
17. In Manohar Lal Chopra v. Rai Bahadur Rao Raja Seth Hiralal while
dealing with the power of the court to pass orders for the ends of justice or to
prevent the abuse of the process of the court, this Court held that the courts
have inherent jurisdiction to issue temporary order of injunction in the
circumstances which are not covered under the provisions of Order 39 of the
Code of Civil Procedure. However, it was held by this Court in the aforesaid
decision that the inherent power under Section 151 of the Code of Civil
Procedure must be exercised only in exceptional circumstances for which
the Code lays down no procedure.
18. At the same time, it is also well settled that when parties violate order of
injunction or stay order or act in violation of the said order the court can,
by exercising its inherent power, put back the parties in the same position
as they stood prior to issuance of the injunction order or give appropriate
direction to the police authority to render aid to the aggrieved parties for
the due and proper implementation of the orders passed in the suit and also
order police protection for implementation of such order.
19. It is also well settled that when in the event of utter violation of the
injunction order, the party forcibly dispossesses the other, the court can
order restoration of possession to the party wronged."
(emphasis supplied)
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14. Having appreciated the facts germane from the application
and so discussed in the impugned order, I am also of the view
that the impugned application lacks merit and was filed
without any supportive, reliable and cogent evidence while
praying for and seeking police protection. It is very
surprising that such application remained pending for years
before the trial court which ought to have been adjudicated
by the trial court at the given point of time; otherwise, by
efflux of time, cause of filing such application pales into
insignificance.
15. Nonetheless, considering the peculiar facts and
circumstances and the reasons which were assigned by the
trial court and so also discussed by this Court hereinabove, I
do not find any merit in the present writ application.
16. It is also a well-settled legal position of law that a mere error
of law committed by trial court would not be a ground to
interfere by this Court while exercising its power under
Article 227 of the Constitution of India. [See Sameer Suresh
Gupta TR PA Holder vs. Rahul Kumar Agarwal, reported
in 2013 (9) SCC 374 (Para 6 and 7) and Garment Craft
v. Prakash Chand Goel, reported in (2022) 4 SCC 181
(Para 15 and 16)].
17. So, even if the trial court is of the view that unless the breach
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of injunction application filed under Order 39, Rule 2(A),
would be decided, the impugned application is not required
to be entertained, this may not be a universal proposition of
law; but considering the fact that the petitioner has not
brought anything on record to substantiate his claim made in
the impugned application, in this peculiar set of facts, the
ultimate conclusion of trial court remains just and proper.
CONCLUSION
18. In light of the aforesaid observations, discussions and
reasons, I am of the view that there is no merit in the present
writ application, which requires to be rejected and which is
hereby rejected. No order as to costs.
(MAULIK J.SHELAT,J)
Nilesh
