Kenchawwa w/o.shivanagappa Hediyal Vs. Shivashankarappa S/O. Shivappa Soratur - Court Judgment

SooperKanoon Citationsooperkanoon.com/1195528
CourtKarnataka Dharwad High Court
Decided OnJul-14-2015
Case NumberWP 105821/2015
JudgeB.VEERAPPA
AppellantKenchawwa w/o.shivanagappa Hediyal
RespondentShivashankarappa S/O. Shivappa Soratur
Excerpt:
:1. : r in the high court of karnataka dharwad bench dated this the14h day of july, 2015 before the hon’ble mr. justice b. veerappa w.p. no.105821 /2015 (gm-cpc) between1 kenchawwa w/o.shivanagappa hediyal age:53. years, occ: agriculture & household work r/o. chikkamaganur village tq: ranebennur dist: haveri2 basavarajappa s/o. tirakappa hediyal age:59. years, occ: agriculture r/o. chikkamaganur village tq: ranebennur dist: haveri3 bharamgouda s/o. tirakappa hediyal age:55. years, occ: agriculture r/o. chikkamaganur village tq: ranebennur dist: haveri :2. :4. malatesh @ kumar s/o. bharmagouda hediyal age:40. years, occ: agriculture r/o. chikkamaganur village tq: ranebennur dist: haveri5 shankrappa s/o. bharamagouda hediyal age:37. years, occ: agriculture r/o. chikkamaganur village tq: ranebennur dist: haveri ... petitioners (by sri dinesh m. kulkarni, adv.) and1 shivashankarappa s/o. shivappa soratur age:48. years, occ: agriculture r/o. chikkamaganur village tq: ranebennur dist: haveri2 hanumanthappa s/o. shivappa soratur age:45. years, occ: agriculture r/o. chikkamaganur village tq: ranebennur dist: haveri ... respondents (by sri. hanumanthareddy sahukar, adv.) :3. : this writ petition is filed under articles226and227of the constitution of india, praying to set aside the order dated2904.2015 passed by the addl. civil judge & 2nd addl. jmfc, ranebennur in o.s.no.121/2012 on i.a.no.10 vide annexure-g as null and void. this writ petition coming on for preliminary hearing, this day, the court made the following: order the present petitioners, who are defendant nos.1 and 18 to 21 filed the above writ petition against the order dated 29.4.2015 allowing the application filed by the plaintiff on i.a.no.10 under section 151 of cpc seeking police protection to implement the order of temporary injunction.2. respondent nos.1 and 2 who are the plaintiffs before the trial court filed the suit in o.s.no.121/2002 for a declaration to declare that the right of cart road/track has been enjoyed from their ancestors and the same is being obstructed by the defendants unnecessarily. the defendants filed the written statement and resisted all the plaint averments and contended there is no such :4. : cart road/track existing in the suit schedule property as claimed by the plaintiffs and therefore sought for dismissal of the suit.3. the plaintiffs also filed an application for temporary injunction. after considering the application and the objections, the trial court by its order dated 11.6.2014 granted temporary injunction in favour of the plaintiffs and restrained defendant nos.1, 18 to 21 or their agents, and anybody claiming through them from interfering with the peaceful possession and enjoyment of the suit property in r.s.nos.39 and 41 shown as abcdefgh in the hand sketch map till the disposal of the suit. aggrieved by the order passed by the trial court defendant nos.1, 18 to 21 filed misc. appeal no.9/2014 before the appellate court, ranebennur, who after hearing both the parties by order dated 11.8.2014 dismissed the appeal and confirmed the temporary injunction granted by the trial court. the said order passed by the court below granting injunction in favour of the plaintiffs is final and conclusive. :5. :4. thereafter according to the plaintiffs the defendants disobeyed the order passed by the trial court and confirmed by the appellate court. therefore, they filed application for police protection under section 151 of code of civil procedure and the said application was resisted by the defendants. after hearing both the parties, the learned civil judge by impugned order dated 29.4.2015 has allowed the application and directed the jurisdictional police haveri, to provide necessary protection to the plaintiffs, particularly, to use cart way/road/track by the plaintiffs. hence defendant nos.1, 18 to 21 have filed the present writ petition.5. 6. i have heard the learned counsel for the parties to the lis. sri..dinesh m. kulkarni, learned counsel for the petitioners has contended that the impugned order passed by the trial court granting police protection is contrary to the provisions of order 39 rule 2 a of code of civil procedure. learned counsel for the petitioners has relied upon the dictum of this court in the case of manche gowda & another vs. v.m. madaiah :6. : reported in 1987 (1) in 119 and in the case of narasimhappa v/s. hanumanthappa reported in ilr19762) kljsn.40- held that the effect that if the defendants violate the order of temporary injunction, there is appropriate provision in the code for taking action against the persons violating the order of the court. hence, the court is not right in directing the police to implement the order of temporary injunction, the police are not the authorities to enforce the order of the court. therefore, he sought for set aside the impugned order.7. per contra, sri hanumantha reddy sahukar, learned counsel for respondent nos.1 and 2 sought to justify the impugned order and specifically contended it is not in dispute that the temporary injunction granted by the trial court has been confirmed by the lower appellate court. if the defendants violate the order of temporary injunction the remedy is not under order 39 rule 2a of cpc and court can pass the orders to provide police protection to enforce the order. he relied upon the dictums of this court in the case of mahadevaprasad :7. : m.s. and others vs. mahadevaiah and others reported in ilr2001kar462and in the case of papanna v/s. nagachavi reported in 1996(2) klj74held that the court is not precluded from issuing direction to police for enforcement of order of temporary injunction at the instance of party apprehending disobedience of that order-remedy under order-39 rule-2a is not exhaustive and court can pass appropriate order to ensure enforcement of its order. therefore, he sought to justify the impugned order passed by the court below.8. i have given my thoughtful consideration to the arguments advanced by the learned counsel for the parties and perused the entire material on record.9. it is an admitted fact that the plaintiffs filed a suit for declaration and consequential relief and during the pendency of the suit, the plaintiffs also filed an interim application for temporary injunction. the trial court by an order dated 11.6.2014 granted temporary injunction holding that plaintiff proved that there is prima-facie case in his favour in respect of :8. : cart road as on the date of the suit and contended that if the defendants do not permit the plaintiffs to use the cart road/track, it would cause hardship to the plaintiffs and they would not be able to carry out any agricultural activities. the lower appellate court by its order dated 11.8.2014 has confirmed the order passed by the trial court granting injunction holding that the surveyor’s report shows encroachment on the dispute relating to the use of cart road/track and existence of alternative way. all these grounds are however yet to be established by the defendants by a detail trial.10. the said order passed by the appellate court confirming the order passed by the trial court is final and conclusive. thereafter the plaintiffs filed i.a.no.10 under section 151 for police protection. after considering the entire material on record the trial court granted police protection relying upon the dictum of this court in the case of mahadevprasad m.s. case stated supra holding that police protection can be given to enforce the orders passed by the trial court. though the learned counsel :9. : for the petitioners relied upon the earlier judgment to the effect that if defendants violate the order of temporary injunction granted by the court and the only remedy lies under order 39 rule 2(a) of code of civil procedure. in view of the latest dictums of this court in the case of m.s. mahadeva prasad stated supra, wherein this court considering the earlier dictums of this court in the case of narasimhappa and papanna has held that when the court has prima facie considered the matter and granted temporary injunction in favour of the plaintiffs after hearing the defendants, the court has the power to enforce the same and the contention of the defendants that he is in persona cannot be accepted at this stage and the remedy under order 39 rule 2(a) is not exhaustive, the court can pass orders if necessary for police protection to enforce the orders of the court.11. admittedly in the present case, both the courts below granted order of injunction in favour of the plaintiffs in respect of the cart road/track till the final decision is taken on the merits of the matter and the said order is final and conclusive and it is :10. : alleged by the plaintiff that the injunction granted has been disobeyed by the defendants. therefore, the trial court considering the entire material on record has granted police protection in favour of the plaintiffs. it may be true that in a given case the party, in whose favour order of temporary injunction has been granted, can approach court for seeking action under order-39 rule 2a cpc. but that does not necessarily mean that one should adopt such remedy and/or has no other remedy. a remedy of seeking police protection under section 151 cpc for implementation of the temporary injunction, during the pendency of the suit is also available in law. in the present case, if the plaintiff is not permitted to use the cart road by the defendants, inspite of temporary injunction granted, the plaitniffs will not able to undertake any agricultural activities in their property then their entire agricultural activities will be kept under dark and consequently they become workless and worthless without any income. :11. :1. 3 the petitioners not made out any ground in the impugned order warranting interference by this in the writ jurisdiction. accordingly, writ petition is dismissed. sd/- judge ng*
Judgment:

:

1. : R IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH DATED THIS THE14H DAY OF JULY, 2015 BEFORE THE HON’BLE MR. JUSTICE B. VEERAPPA W.P. No.105821 /2015 (GM-CPC) BETWEEN1 KENCHAWWA W/O.SHIVANAGAPPA HEDIYAL AGE:

53. YEARS, OCC: AGRICULTURE & HOUSEHOLD WORK R/O. CHIKKAMAGANUR VILLAGE TQ: RANEBENNUR DIST: HAVERI2 BASAVARAJAPPA S/O. TIRAKAPPA HEDIYAL AGE:

59. YEARS, OCC: AGRICULTURE R/O. CHIKKAMAGANUR VILLAGE TQ: RANEBENNUR DIST: HAVERI3 BHARAMGOUDA S/O. TIRAKAPPA HEDIYAL AGE:

55. YEARS, OCC: AGRICULTURE R/O. CHIKKAMAGANUR VILLAGE TQ: RANEBENNUR DIST: HAVERI :

2. :

4. MALATESH @ KUMAR S/O. BHARMAGOUDA HEDIYAL AGE:

40. YEARS, OCC: AGRICULTURE R/O. CHIKKAMAGANUR VILLAGE TQ: RANEBENNUR DIST: HAVERI5 SHANKRAPPA S/O. BHARAMAGOUDA HEDIYAL AGE:

37. YEARS, OCC: AGRICULTURE R/O. CHIKKAMAGANUR VILLAGE TQ: RANEBENNUR DIST: HAVERI ... PETITIONERS (BY SRI DINESH M. KULKARNI, ADV.) AND1 SHIVASHANKARAPPA S/O. SHIVAPPA SORATUR AGE:

48. YEARS, OCC: AGRICULTURE R/O. CHIKKAMAGANUR VILLAGE TQ: RANEBENNUR DIST: HAVERI2 HANUMANTHAPPA S/O. SHIVAPPA SORATUR AGE:

45. YEARS, OCC: AGRICULTURE R/O. CHIKKAMAGANUR VILLAGE TQ: RANEBENNUR DIST: HAVERI ... RESPONDENTS (BY SRI. HANUMANTHAREDDY SAHUKAR, ADV.) :

3. : THIS WRIT PETITION IS FILED UNDER ARTICLES226AND227OF THE CONSTITUTION OF INDIA, PRAYING TO SET ASIDE THE ORDER

DATED2904.2015 PASSED BY THE ADDL. CIVIL JUDGE & 2ND ADDL. JMFC, RANEBENNUR IN O.S.NO.121/2012 ON I.A.NO.10 VIDE ANNEXURE-G AS NULL AND VOID. THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING, THIS DAY, THE COURT MADE THE FOLLOWING: ORDER

The present petitioners, who are defendant Nos.1 and 18 to 21 filed the above writ petition against the order dated 29.4.2015 allowing the application filed by the plaintiff on I.A.No.10 under Section 151 of CPC seeking police protection to implement the order of temporary injunction.

2. Respondent Nos.1 and 2 who are the plaintiffs before the Trial Court filed the suit in O.S.No.121/2002 for a declaration to declare that the right of cart road/track has been enjoyed from their ancestors and the same is being obstructed by the defendants unnecessarily. The defendants filed the written statement and resisted all the plaint averments and contended there is no such :

4. : cart road/track existing in the suit schedule property as claimed by the plaintiffs and therefore sought for dismissal of the suit.

3. The plaintiffs also filed an application for temporary injunction. After considering the application and the objections, the Trial Court by its order dated 11.6.2014 granted temporary injunction in favour of the plaintiffs and restrained defendant Nos.1, 18 to 21 or their agents, and anybody claiming through them from interfering with the peaceful possession and enjoyment of the suit property in R.S.Nos.39 and 41 shown as ABCDEFGH in the hand sketch map till the disposal of the suit. Aggrieved by the order passed by the Trial Court defendant Nos.1, 18 to 21 filed Misc. Appeal No.9/2014 before the Appellate Court, Ranebennur, who after hearing both the parties by order dated 11.8.2014 dismissed the appeal and confirmed the temporary injunction granted by the Trial Court. The said order passed by the Court below granting injunction in favour of the plaintiffs is final and conclusive. :

5. :

4. Thereafter according to the plaintiffs the defendants disobeyed the order passed by the trial Court and confirmed by the Appellate Court. Therefore, they filed application for police protection under Section 151 of Code of Civil Procedure and the said application was resisted by the defendants. After hearing both the parties, the learned Civil Judge by impugned order dated 29.4.2015 has allowed the application and directed the jurisdictional police Haveri, to provide necessary protection to the plaintiffs, particularly, to use cart way/road/track by the plaintiffs. Hence defendant Nos.1, 18 to 21 have filed the present writ petition.

5. 6. I have heard the learned counsel for the parties to the lis. Sri..Dinesh M. Kulkarni, learned counsel for the petitioners has contended that the impugned order passed by the Trial Court granting police protection is contrary to the provisions of Order 39 Rule 2 A of Code of Civil Procedure. Learned counsel for the petitioners has relied upon the dictum of this Court in the case of MANCHE GOWDA & ANOTHER Vs. V.M. MADAIAH :

6. : reported in 1987 (1) in 119 and in the case of Narasimhappa v/s. Hanumanthappa reported in ILR19762) KLJSN.40- held that the effect that if the defendants violate the order of temporary injunction, there is appropriate provision in the Code for taking action against the persons violating the order of the Court. Hence, the Court is not right in directing the police to implement the order of temporary injunction, the police are not the authorities to enforce the order of the Court. Therefore, he sought for set aside the impugned order.

7. Per contra, Sri Hanumantha Reddy Sahukar, learned counsel for respondent Nos.1 and 2 sought to justify the impugned order and specifically contended it is not in dispute that the temporary injunction granted by the Trial Court has been confirmed by the Lower Appellate Court. If the defendants violate the order of temporary injunction the remedy is not under Order 39 Rule 2A of CPC and Court can pass the orders to provide police protection to enforce the order. He relied upon the dictums of this Court in the case of MAHADEVAPRASAD :

7. : M.S. AND OTHERS Vs. MAHADEVAIAH AND OTHERS reported in ILR2001KAR462and in the case of Papanna V/s. Nagachavi reported in 1996(2) KLJ74held that the Court is not precluded from issuing direction to police for enforcement of order of temporary injunction at the instance of party apprehending disobedience of that order-Remedy under Order-39 Rule-2A is not exhaustive and Court can pass appropriate order to ensure enforcement of its order. Therefore, he sought to justify the impugned order passed by the Court below.

8. I have given my thoughtful consideration to the arguments advanced by the learned counsel for the parties and perused the entire material on record.

9. It is an admitted fact that the plaintiffs filed a suit for declaration and consequential relief and during the pendency of the suit, the plaintiffs also filed an interim application for temporary injunction. The Trial Court by an order dated 11.6.2014 granted temporary injunction holding that plaintiff proved that there is prima-facie case in his favour in respect of :

8. : Cart Road as on the date of the suit and contended that if the defendants do not permit the plaintiffs to use the Cart Road/Track, it would cause hardship to the plaintiffs and they would not be able to carry out any agricultural activities. The Lower Appellate Court by its order dated 11.8.2014 has confirmed the order passed by the Trial Court granting injunction holding that the surveyor’s report shows encroachment on the dispute relating to the use of Cart Road/Track and existence of alternative way. All these grounds are however yet to be established by the defendants by a detail trial.

10. The said order passed by the Appellate Court confirming the order passed by the Trial Court is final and conclusive. Thereafter the plaintiffs filed I.A.No.10 under Section 151 for police protection. After considering the entire material on record the trial Court granted police protection relying upon the dictum of this Court in the case of MAHADEVPRASAD M.S. case stated supra holding that police protection can be given to enforce the orders passed by the Trial Court. Though the learned counsel :

9. : for the petitioners relied upon the earlier judgment to the effect that if defendants violate the order of temporary injunction granted by the Court and the only remedy lies under Order 39 Rule 2(A) of Code of Civil Procedure. In view of the latest Dictums of this Court in the case of M.S. MAHADEVA PRASAD stated supra, wherein this Court considering the earlier dictums of this Court in the case of Narasimhappa and Papanna has held that when the Court has prima facie considered the matter and granted temporary injunction in favour of the plaintiffs after hearing the defendants, the Court has the power to enforce the same and the contention of the defendants that he is in persona cannot be accepted at this stage and the remedy under Order 39 Rule 2(A) is not exhaustive, the Court can pass orders if necessary for police protection to enforce the orders of the Court.

11. Admittedly in the present case, both the Courts below granted order of injunction in favour of the plaintiffs in respect of the Cart Road/Track till the final decision is taken on the merits of the matter and the said order is final and conclusive and it is :

10. : alleged by the plaintiff that the injunction granted has been disobeyed by the defendants. Therefore, the Trial Court considering the entire material on record has granted police protection in favour of the plaintiffs. It may be true that in a given case the party, in whose favour order of temporary injunction has been granted, can approach Court for seeking action under Order-39 Rule 2A CPC. But that does not necessarily mean that one should adopt such remedy and/or has no other remedy. A remedy of seeking police protection under Section 151 CPC for implementation of the temporary injunction, during the pendency of the suit is also available in Law. In the present case, if the plaintiff is not permitted to use the Cart road by the defendants, inspite of temporary injunction granted, the plaitniffs will not able to undertake any agricultural activities in their property then their entire agricultural activities will be kept under dark and consequently they become workless and worthless without any income. :

11. :

1. 3 The petitioners not made out any ground in the impugned order warranting interference by this in the writ jurisdiction. Accordingly, writ petition is dismissed. Sd/- JUDGE NG*