Telangana High Court

Rafiqha Khatoon vs The State Of Telangana on 8 November, 2023

Bench: C.V. Bhaskar Reddy

           HON'BLE SRI JUSTICE C.V.BHASKAR REDDY

                  WRIT PETITION No.28011 of 2023
ORDER:

This Writ Petition, under Article 226 of the Constitution of

India, is filed by the petitioners, seeking the following relief:

"...to issue a writ in the nature of writ of mandamus to declare the in- action of Respondent No.5 and its staff members in providing Police- Aid for implementation of Injunction Order and Decree in favour of the petitioners herein dt.11-04-2023 in I.A.No.69/2023 in O.S.No.111/2023 restraining the Respondent Nos.7 to 14 herein from interfering with the peaceful petitioner's possession and enjoyment of the property as illegal, arbitrary, unconstitutional and also in violation of Article 19, 21, 31 and 300 A of Indian Constitution and also in violation of the Judgments of this Hon'ble Court. Consequently, to direct the Respondent Nos.2 to 6 herein to provide Police-Aid to the Petitioners herein for implementation of Injunction Order and Decree in favour of the petitioners herein dt. 11-04-2023 in I.A.No.69/2023 in O.S.No.111/2023 and to pass such other order or orders as this Hon'ble Court may deems fit just and proper in the circumstances of the case...."

2. Heard the learned counsel for both sides and perused the

record.

3. It is the case of the petitioners that they filed a suit for

perpetual injunction and declaration vide O.S.No.111 of 2023 on the

file of Principal District Judge, Ranga Reddy District at L.B.Nagar,

against the Respondent Nos.7 to 14 in respect of land admeasuring

Ac.17-02 gts in Sy.No.79 situated at Mokila Village, Shankarpally

Mandal, Ranga Reddy District. In the said suit, the learned VII

Additional District and Sessions Judge, Ranga Reddy District, at

L.B.Nagar was pleased to grant temporary injunction in favour of the

petitioners vide order dated 11.04.2023 passed in I.A.No.69 of 2023

in O.S.No.111 of 2023.

4. The learned counsel appearing for the petitioners has

vehemently contended that even though temporary injunction was

granted in favour of the petitioners vide order dated 11.04.2023

passed in I.A.No.69 of 2023 in O.S.No.111 of 2023 by the learned VII

Additional District and Sessions Judge, Ranga Reddy District at

L.B.Nagar, the unofficial respondents are interfering with the

possession of the petitioners, which necessitated the petitioners to

approach the police but the police are not providing police protection

to the petitioners to implement the aforesaid injunction order dated

11.04.2023.

5. Per contra, learned Assistant Government Pleader for Home

appearing for respondent Nos.1 to 6 has submitted that since there

was no specific direction from the competent civil Court, the

respondents-police have not provided police protection to the

petitioners.

6. In the case of Kabbakula Padma vs. State of Telangana

and others 1, a Division Bench of this Court (wherein I was one of

the Member), it was observed as follows:

2023(1) ALT 765 (DB) TS) = MANU/TL/2552/2022

"6. We concur with the view taken by the learned Single Judge. Availing the assistance of the police or seeking police protection for enforcement of injunction order without approaching the civil Court granting the injunction order is not provided under the Code of Civil Procedure, 1908 (CPC). In fact, such shortcut method is not to be encouraged bypassing the procedure under CPC. Order XXXIX Rule 2A of CPC deals with consequence of disobedience or breach of injunction. Sub-rule (1) thereof says that in case of disobedience of any injunction granted under Rules 1 and 2 or breach of any of the terms of injunction, the Court granting injunction may order the property of the person guilty of such disobedience or breach to be attached and may also order such person to be detained in the civil prison for a term not exceeding three months. Sub-rule (2) clarifies that such attachment shall not remain in force for more than one year. However, if the disobedience or breach continues, the property attached may be sold and out of the proceeds, the Court may award such compensation as it thinks fit to the injured party and shall pay the balance, if any, to the party entitled thereto. Thus, CPC provides for adequate remedy an order of injunction."

7. Reiterating the aforesaid judgment, another Division Bench of

this Court in Mudraboina Odhelu and Ors. vs. The State of

Telangana and others 2, observed as follows:

"12. This Court has time and again reiterated that the public law remedy under Article 226 of the Constitution of India cannot be invoked for settling private disputes between two or more individual parties. Only when such dispute partakes the character of a public injury or infraction of statutory rights and duties, the remedy of writ jurisdiction may be invoked (see

MANU/TL/0359/2023

Kabbakula Padma v. State of Telangana (2023 (1) ALT 765 (DB) TS).

13. In the instant case, what appellants had sought for before the learned Single Judge was execution of the injunction order. A writ proceeding cannot be converted into an execution proceeding. If the appellants feel that respondent No.6 is obstructing them from enjoying the fruits of the injunction order or if there is any disobedience to or breach of the injunction order, then the remedy of the appellants would be to invoke the provisions of Rule 2A of Order XXXIX of the Code of Civil Procedure, 1908 (CPC).

14. Rule 2A of Order XXXIX of CPC reads as under:

2A. Consequence of disobedience or breach of injunction.

(1) In the case of disobedience of any injunction granted or other order made under rule 1 or rule 2 or breach of any of the terms on which the injunction was granted or the order made, the Court granting the injunction or making the order, or any Court to which the suit or proceeding is transferred, may order the property of the person guilty of such disobedience or breach to be attached, and may also order such person to be detained in the civil prison for a term not exceeding three months, unless in the meantime the Court directs his release.

(2) No attachment made under this rule shall remain in force for more than one year, at the end of which time if the disobedience or breach continues, the property attached may be sold and out of the proceeds, the Court may award such compensation as it thinks fit to the injured party and shall pay the balance, if any, to the partyentitled thereto.

15. From the above, it is evident that if there is any disobedience to an order of injunction made under Rule 1 or Rule 2 of Order XXXIX CPC or breach of any of the terms on which the injunction was granted or the order made, the Court granting injunction or any court to which the suit or proceeding is transferred may order the property of the person guilty of

suchdisobedience or breach to be attached and may also order such person to be detained in civil prison for a term not exceeding three months unless in the meantime, the Court directs his release. Therefore, Rule 2A of Order XXXIX CPC provides for an adequate and efficacious remedy to a person who is aggrieved by disobedience to or breach of an injunction order granted in his favour.

16. That being so, this court is of the view that petitions filed under Article 226 of the Constitution of India seeking police aid to enforce or implement an order of injunction or to restrain persons from interfering with the order of injunction should not be ordinarily entertained unless an element of injury to the public or infraction of statute is made out. Otherwise, it would amount to entering into an arena of private dispute(s)."

8. In view of the above settled legal position and since there is

alternative and efficacious remedy available to the petitioners under

Order XXXIX Rule 2A of C.P.C, this Court is not inclined to grant any

relief as sought for in this writ petition. However, the petitioners are

at liberty to file an application under Order XXXIX Rule 2A of CPC

read with Section 151 of CPC in O.S.No.111 of 2023 on the file of VII

Additional District and Sessions Judge, Ranga Reddy District at

L.B.Nagar, seeking police protection. If such an application is filed,

the learned VII Additional District and Sessions Judge, Ranga Reddy

District at L.B.Nagar, shall dispose of the same, in accordance with

law, as expeditiously as possible, preferably, within a period of one(1)

month from the date of filing of such application.