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Rayapati Audemma Vs. Pothineni Narasimham - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtAndhra Pradesh High Court
Decided On
Case NumberCivil Revn. Petn. No. 1819 of 1968
Judge
Reported inAIR1971AP53
ActsCode of Civil Procedure (CPC), 1908 - Sections 151 - Order 39, Rule 2 and 2(3)
AppellantRayapati Audemma
RespondentPothineni Narasimham
Appellant AdvocateM.B. Rama Sarma, Adv.
Respondent AdvocateP. Chennakeswa Reddy, Adv. for N. Subba Reddy, Adv. and Advocate General
Excerpt:
property - police aid - section 151 and order 39 rules 2 and 2 (3) of code of civil procedure, 1908 - whether court has jurisdiction to grant police aid with respect to implementation of court's injunction orders under order 39 rules 1 and 2 - in exercise of inherent powers under section 151 civil courts are competent to give appropriate directions to render aid to aggrieved parties for proper implementation of its orders - no express provision in code prohibits exercise of such power - at instance of aggrieved party police authorities can be asked to render aid for enforcement of court's order. - - it is now well established that section 151, civil p. will have to follow the procedure which is not prohibited by law, but unless such a procedure is clearly and expressly in terdicted..........it or otherwise affecting it. the inherent power has not been conferred upon the court; it is a power inherent in the court by virtue of its duty to do justice between the parties before it. further when the code itself recognizes the existence of the inherent power of the court, there is no question of implying any powers outside the limits of the code'.the following observations in 0065/1960 : 1961crilj322 are also apposite in this context.?'the inherent powers of the court are in addition to the powers specifically conferred on the court by the code. they are complementary to those that the court is free to exercise them for the purpose mentioned in sec. 151 of the code when the exercise of those powers is not in any way in conflict with what has been expressly provided in the code.....
Judgment:

Ramachandra Rao, J.

1. This revision has been referred to a Bench as it raises a short but important question of law. The learned counsel for the petitioner relied upon a judgment of Bhima Sankaram, J., dated 22-7-1960 in C. R. P. No. 67 of 1959. But the learned counsel for the respondent. Sri N. Subba Reddy, contended that the said decision requires reconsideration. Accordingly by an order dated 7-3-1969, this revision has been referred to a Bench by one of us, K. Ramachandra Rao. J.

2. The brief facts relevant for the purpose of this case are as follows: - The respondent herein filled a suit O. S. No. 111 of 1968 on the file of the Court of the District Munsiff, Kandukur, for the reliefs among others of possession of a portion of a channel and for a permanent injunction restraining the petitioner from interfering with the respondent's possession and enjoyment of the said channel and for moving the silt in the said channel. The petitioner filed a written statement contesting the suit. The respondent has file and application for a temporary injunction pending disposal of the suit.

The trial Court ordered the said application subject to the condition that anything done by the respondent in his and, should not infringe or cause damage to the lang owned by the petitioner. While the respondent was implementing the aforesaid order and digging trenches and removing the silt, the petitioner herein appears to have raised an objection to the method and manner of the implementation of the order of the trial Court. The respondent thereupon filed an application I. A. 600 of 1968 under Section 151, Civil P. C. praying that the lower Court might be pleased to grant aid in order to remove the silt in the channel and allow the excess rain water to flow through the said channel in view of the injunction orders granted in I. A. 493 of 1968 and in view of the obstruction said to have been caused by the petitioner to the removal of the silt. The lower Court passed a short order as follows:-

'the petitioner is permitted to remove the silt with police aid'.

This revision has been preferred against the aforesaid order.

3. The main admission of Shri M. B., Rama Sarma, the learned counsel for the petitioner is that the Civil Court has no jurisdiction under any of the provisions of the Civil Procedure Code or the rules made thereunder to grant police aid, particularly, with respect to the implementation of the orders of injunction made under O. 39, Civil P. C. Shri Subba Reddy, the learned counsel for the respondent submits, that there being no specific provision in this behalf, the Civil Court has inherent powers under Section 151, Civil P. C. to direct police to render aid where the implementation of the orders of a Civil Court is obstructed or prevented.

4. When the case came on for final hearing before us on 23-6-69, we requested the Advocate-General to assist us in the case and he had kindly accepted to do so. The learned Advocate-General subsequently informed us that he could not get any direct authority or any specific rule or provision under which such a relief could be given, but that it is always open to the party to invoke the jurisdiction under Section 151, Civil P. c. for getting the said relief.

Section 151, Civil Procedure Code reads.

'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 prevent abuse of the process of the Court'.

This section confers power to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the Court. It is now well established that Section 151, Civil P. C. cannot be invoked where there is an express provision of law under which the relief could be claimed by the aggrieved party. The power under Section 151, Civil P. C. can only be invoked to supplement the other provisions of the Code and not to override or evade the other express provisions. It is impossible in the nature of things, to anticipate the manifold difficulties or inconveniences and to make appropriate provisions in the Code or the Rules. Not only the Courts should have the power to make the orders but should also have the power to implement the same. Though the method and manner of implementation are provided for in the several provisions of the Code, still there may be cases where the said provisions may not be sufficient to implement the orders of the Court fully in order to render justice or redress a wrong. In such cases we do not see why the provisions of Section 151, Civil P. C. cannot be invoked.

The language of Section 151, Civil P. C. is wide enough to clothe the Civil Courts with inherent powers to do the right and to undo the wrong in the course of administration of justice. No doubt the Court, while exercising the power under Section 151, Civil P C. will have to follow the procedure which is not prohibited by law, but unless such a procedure is clearly and expressly in terdicted by law there is no reason to presume why the Court should not adopt the procedure which would aid the Court in the implementation of its orders ad which would also meet the ends of justice or which would prevent the abuse of the process of Court.

5. Sri Rama Sarma, coteds that even assuming that the Court has inherent power under Sec. 151, Civil P. C. so far as the orders of injunction passed under Order 39, Civil P. C. are concerned, O. 39, Civil P. C. itself provides for remedies for breach of the injunction order and that consequently there is no scope for invoking the provisions of Section 151, Civil P. C. for granting police aid for implementation of the order of injunction. In support of this proposition, he relies upon a judgment of Bhima Sankaram, J., dated 22-7-1960 in C. R. P. 67 of 1959 (AP) , (Paturu Venkateswarlu v. D. Sulochanamma, being minor by next friend Dubbagunta Subrahmanyam and another.)

In the said case, the defendants in the suit were directed by the lower Court by an interim prohibitory injunction not to obstruct the plaintiffs in the exercise of their right to take their carts, cattle etc. through , a field. As the plaintiffs apprehended obstruction, they applied to the court to grant them police aid to enforce the said order of injunction and the same was granted by the District Munsif. A revision was preferred to this court challenging the jurisdiction of the trial court to pass such an order. By the time the revision came up for hearing, it was represented that the order had worked itself out and that there was no effective order in force which could be revised. The learned Judge however felt that as the main litigation was pending ad as a similar situation might arise between the parties again ad as such orders by subordinate courts were not infrequent, an enunciation of the true position in law was called for. The learned Judge held that the order of injunction was one made under Order 39, Civil P. C. and that its violation could be punished under Order 39, Rule 2 (3), Civil P. C. and that inasmuch as there was an express provision in that behalf, the inherent powers of the court under Section 151, Civil P. C. could not be invoked and that such injunction orders could not be enforced with police aid. While holding so, the learned Judge observed as follows:-

'Injunctions, temporary or permanent, issued by civil courts are not intended to be enforced with the aid of the police. The police are not bound to obey any directions of the court in the absence of any statutory obligation to do so and a civil court would be stultifying itself by giving directions which jay not be complied with. A citizen, whether armed or not with an order of a civil court, may, of course, directly approach the police for their aid to ensure the enjoyment of his civil rights, when they are threatened to be unlawfully invaded.'

The learned Judge then referred to Goswami Godhan Lalji v. Goswami Maksudan Ballabh, ILR 40 All 648 = (AIR 1918 All 152), and agreed with the view taken therein. With the aforesaid observations, the revision was however dismissed. The facts of the Allahabad case relied upon by the learned Judge, are as follows:- In a suit brought by one Goswami Mandhar Lal against a number of defendants, a decree was passed declaring that the plaintiff and the defendants were entitled to perform the 'Singer Arti' ceremony in a certain temple both on ordinary and festive occasions. The decree also granted a perpetual injunction, restraining some of the defendants from obstructing the plaintiff and some of the other defendants from performing the duties of the office claimed by them. One of the decree-holders (defendants) filed an application. that the decree might by enforced through the Superintendent of police of Muttra, in a particular manner. This application was opposed but the objections were disallowed and the application was granted as prayed for. Against the said order, the aggrieved judgment-debtor (defendant) preferred an appeal to the High Court of Allahabad.

One of the contentions raised in the appeal was that the lower court was wrong in ordering the Superintendent of police to see that the 'Arti' was performed by the decree-holder without obstruction from the defendants therein. The learned Judges, Sir Pramada Charan Banerji and Ryves, JJ., held as follows:-

'So far as this part of the prayer in the application for execution is concerned we do not think that the court below ought to have granted it. It has no power under the Code of Civil Procedure to order the police to interfere in the matter. There being a decree for a perpetual injunction against the defendants or those whom they represent, it was the duty of the defendants to carry out the injunction, that is to say, to refrain from offering any obstruction to the performance of the office which was decreed to the decree-holder. If they disobeyed the order of the court, they were liable to the penalties mentioned in Order XXI. Rule 32 of the Code, but the court could not order the police to see that the decree-holders performed the duties of their office without interference on the part of the defendants. If a breach of the peace was apprehended, that was a matter for the Magistrate and the police and not for the Civil Court'. Accordingly the learned Judges set aside that portion of the lower court's order with regard to the direction given to the Superintendent of Police.

The observations in the aforesaid decision no doubt support the contention of the learned counsel for the petitioner. The learned Judge Bhima Sankaram, J., referred to Section 151, Civil P. c. but took the view that because an order of injunction is capable of enforcement by punishing its disobedience in the manner provided by Order 39, Rule 2 (3), Civil P. C. it is not open to the Civil courts to enforce the same with the aid of the police. With great respect we are unable to agree with this reasoning. It has to be noticed that O. 39 ., R. 2 (3) Civil P. C. provides only for punishment by attachment of the property or by detention in civil prison of the person who committed breach. But it does not further provide for implementation of the order of injunction itself. Order 39, Rule 2 (3) cannot be said to be an express provision with respect to implementation of the order of injunction, but is only a provision which provides penalty for disobedience of the order. In such a case there being no other express provision in the Code for enforcement of the order, it is not only proper but also necessary that the Courts should render all aid to the aggrieved party to derive full benefits of the order. Though the order of injunction under Order 39, Civil P. c. is only interim in nature, still it clothes the person who obtained the order with certain rights and he is entitled to enforce the aforesaid right against the party who is bound by the order. No doubt in such a case, the aggrieved party himself could approach the police authorities to prevent obstruction to the enforcement of the order or to the exercise of the right which he derives under the order of Court. But we do not see why when the same person brings to the notice of the court that enforcement of the order is sought to be prevented or obstructed, the court should not exercise its inherent power under Section 151, Civil P. C. and direct the police authorities to render all aid to the aggrieved party in the implementation of the Court's order,.

In our opinion the exercise of such power is necessary for the ends of justice or to prevent abuse of the process and the civil court has ample jurisdiction to pass such order under Sec. 151, Civil P. C. The learned Judges, observation 'that the police are not bound to obey any directions of the court in the absence of any statutory obligation to do so and a civil court would be stultifying itself by giving directions which may not be complied with', with great respect, cannot be said to be correct. Inasmuch as we are of the opinion that such a direction to the police authorities could be given under the inherent powers of the court under Section 151, Civil P. C. Police are bound to obey such directions.

6. In the Allahabad case also, the learned Judges merely observed that the civil court had no jurisdiction to order the police to interfere in the matter of execution of a decree. The inherent powers execrable by the civil court under Section 151, Civil P. C. were not referred to. Their Lordships also proceeded on the footing that because the disobedience of the order of the court was punishable with penalties mentioned in Order XXI, Rule 32, Civil P. C. the Court could not give any direction to the police with respect to the execution of the decree. The provision for penalty is entirely different from the enforcement of the order itself as we have mentioned earlier. Such a provision would not and cannot preclude the court from exercising its inherent power under Section 151, Civil P. C. in order to do justice or to prevent abuse of the process of court. But the actual decision given therein with respect to the direction given to the Superintendent of Police may be correct inasmuch as the form in which the direction was given to the police authorities, does not appear to be proper or correct.

7. Further, a recent judgment of the Supreme Court in Manohar Lal v. Seth Haralal, : AIR1962SC527 , seems to support the view taken by us. Raghubar Dayal, J., who delivered the judgment of the majority observed at 532 as follows:-

'We are of opinion that the latter view is correct and that the Courts have inherent jurisdiction to issue temporary injunctions in circumstances which as not covered by the provisions of O. 39, Civil P. C. There is no such expression in Section 94 which expressly prohibits the issue of a temporary injunction in circumstances not covered by Order 39 or by any rules made under the Code. It is well settled that the provisions of the Code are not exhaustive, for the simple reason that the Legislature is incapable of contemplating all the possible circumstances which may arise in future litigation, and consequently for providing the procedure for them.'

8. His Lordships further observed, that

'No party has a right to insist on the Court's exercising the jurisdiction and the Court exercises its inherent jurisdiction only when it considers it absolutely necessary for the ends of justice to do so'.

Again at page 533, after referring to the decision of the Supreme Court in Padam Sen v. State of Uttar Pradesh, 0065/1960 : 1961CriLJ322 , His Lordship observed as follows:-

'These observations clearly mean that the inherent powers are not in any way controlled by the provisions of the Code as has been specifically stated in Section 151 itself. But those powers are not to be exercised when their exercise may be in conflict with what had been expressly provided in the code or against the intentions of the Legislature. This restriction, for practical porpoises. on the exercise of those powers is not because those posers are controlled by the provisions of the coce but because it should be presumed that the procedure specifically provided by the Legislature for orders in certain circumstances is dictated by the interests of justice'.

Further on their Lordships stated as follows:-

'The Section (Sec. 151, Civil P. C. ) itself says that nothing in the Code shall be deemed to limit or otherwise affect the inherent power of the Court to make orders necessary for the ends of justice. In the face of such a clear statement, it is not possible to hold that the provisions of the Code control the inherent power by limiting it or otherwise affecting it. The inherent power has not been conferred upon the court; it is a power inherent in the Court by virtue of its duty to do justice between the parties before it. Further when the Code itself recognizes the existence of the inherent power of the Court, there is no question of implying any powers outside the limits of the Code'.

The following observations in 0065/1960 : 1961CriLJ322 are also apposite in this context.

?'The inherent powers of the Court are in addition to the powers specifically conferred on the Court by the Code. They are complementary to those that the Court is free to exercise them for the purpose mentioned in Sec. 151 of the Code when the exercise of those powers is not in any way in conflict with what has been expressly provided in the Code or against the intentions of the Legislature.'

view of these clear observations of their Lordships with regard to the scope and ambit of the inherent powers of the court under Section 151, Civil P. C. we are clearly of the opinion that in order to do justice between the parties or to prevent the abuse of process of the court, the civil courts have ample jurisdiction to give directions to the police authorities to render aid to the aggrieved parties with regard to the implementation of the orders of Court or the exercise of the rights created under orders of court. That the police authorities owe a legal duty to the public to enforce the law is clear from a decision of the Court of Appeal, reported in R. v. Metropolitan Police Commr. (1968) 1 All ER 763, where Lord Debning, M. R. observed at page 769 as follows:

hold it to be the duty of the Commissioner of police, as it is of every chief constable to enforce e the law of the land...............but in all these things he is not the servant of anyone, save of the law itself. The responsibility for law enforcement lies on him. He is answerable to the law and to the law alone'.

The same view was expressed by the other learned Judges. We may also refer to the judgment of the Madras High Court, in Varadachariar v. Commr. of Police, (1969) 2 Mad LJ 1 where the learned Judge, Kailasam, J., after referring to the English case cited above held that the Commissioner of Police should proceed and act in accordance with the directions indicated in the aforesaid judgment.

9. If the police authorities are under a legal duty to enforce the law and the Public or the citizens are entitled to seek directions under Article 226 of the Constitution for discharge of such duties by the Police Authorities we feel that the civil courts can also give appropriate directions under Section 151 Civil P. C. to render aid to the aggrieved parties for the due and proper implementation of the orders of Court. It cannot be said that in such a case the exercise of the inherent power under Section 151, Civil P. C. is devoid of jurisdiction. There is no express provision in the Code prohibiting the exercise of such a power and the Court can give appropriate directions at the instance of the aggrieved parties to the police authorities to render its aid for enforcement of the Court's order in a lawful manner.

10. For all the foregoing reasons we hold that the order of the lower court cannot be said to be devoid of jurisdiction.

11. In all the result, the revision fails and is dismissed with costs.

12. Revision dismissed.


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