Gouri Das & Ors. vs Nani Bhattacharjee & Ors

Subhasis Dasgupta, J

The impugned order dated 17th November, 2017, passed by learned Civil Judge (Junior Division), First Court, Sealdah, South 24 Parganas in Title Suit

No. 281 of 2008, declining to pass any order for police help for implementation of order of injunction, is subject of challenge in this revisional

application under article 227 of the Constitution of India.

The case of the petitioner is that in connection with suit for declaration, injunction and recovery of possession, petitioner was favoured with ad interim

order of injunction initially. The temporary injunction application was ultimately disposed of on 19th May, 2017, restraining the opposite

parties/defendants from encroaching upon the schedule property, and taking out any construction thereof till disposal of the suit. During the pendency

of the suit, a prayer for recovery of possession was additionally made on 11th March, 2011. The opposite parties without preferring any appeal against

the order of injunction presumably accepted the injunction order, and even after accepting injunction order, for the reasons best known to opposite

parties, they gathered construction materials in the suit property in their attempt to make illegal construction in the suit property in violation of the

injunction order. Such fact was brought to the notice of Beliaghata P.S. by lodging G.D. entry no. 2808, dated 28.10.2017. Since no action was taken

by the police even after lodging G.D. entry for that purpose, petitioner filed an application seeking police help.

The opposite parties filed objection against the prayer for police help denying alleged violation of the injunction order. The alleged act of gathering

materials for construction in the suit property together with an attempt to take out illegal construction in the suit property, was specifically denied in

Para-6 of the written objection filed by the opposite parties.

Learned advocate for the petitioner contended that learned court below had most illegally rejected the prayer for police help without having understood

the real purport of the prayer made under Section 151 C.P.C. for police help. Learned advocate further submitted that since no immediate relief could

be obtained by filing an application under Order 39 Rule 2(A) C.P.C., the petitioner was very much within his power to seek police help for the

implementation of the order of injunction.

Reliance was accordingly placed by learned advocate for the petitioner on decisions reported in 2010 (2) CLJ (Cal) 140, delivered in the case of Saila

Roy & Ors. Vs. Shib Sankar Ghosh @ Ata & Ors., and decision reported in 2010 (2) CLJ (Cal) 110, delivered in the case of Sri Paresh Chandra Das

Vs. Sri Bikash Kumar Das & Ors., wherein it was held that court can order police protection for the implementation of the order of injunction under

Section 151 of the Code of Civil Procedure.

Drawing attention to Para-7 of decision reported in Sri Paresh Chandra Das (Supra), it was contended by the learned advocate for the petitioner that

when opposite parties tried to raise construction gathering materials over the suit property, and if opposite parties were not checked to raise

construction in the suit property in violation of injunction order, then there would be definite change of character and nature of the suit property, which

the court should not allow it to happen.

Learned advocate for the petitioner further submitted relying upon a decision reported in AIR 1986 Calcutta 220, delivered in the case of Sujit Pal Vs.

Prabir Kumar Sun & Ors. that no technicality would prevent the court from doing justice in exercise of its inherent power. It was proposed that Order

39 Rule 2(A) C.P.C. having laid down a punitive measure for purpose of compelling a party to comply with the order of injunction, the same would not

be suffice for the immediate relief, which could be easily extended taking aid of Section 151 C.P.C. by granting police help for the implementation of

injunction order.

Per contra, learned advocate for the opposite parties supporting the order of the court below replied that when learned court below most reasonably

and rationally exercised its discretion while declining to grant police help for want of absence of real reasons indicative of making interference with the

order of injunction already granted in this case, such discretion being lawfully and most reasonably exercised, the same would go unaltered.

According to learned advocate for the opposite parties there must have been some tangible materials providing sufficient satisfaction to the learned

court below for passing any order of police help for the implementation of injunction order.

Referring decision reported in 2012 (1) CHN (Cal) 200, delivered in the case of Joydev Das Vs. Khandubala Da,s learned advocate for the opposite

parties contended that when the defendants specifically denied the material allegations leveled against them, it was obligatory on the part of the Trial

Court to arrive at a definite conclusion that there had been violation of the injunction order requiring implementation of the same taking aid of police

help, and mere allegation and counter allegation would not be sufficient to establish the same.

The only point to be decided in this case is that whether the Trial Court was justified in refusing the prayer for police help, when there had been

allegation of causing violation of injunction by collecting building materials in the suit property in an effort to make construction in violation of the

injunction order. Situation demanded something more and more than that one based on allegation and counter allegation. Making presentation of a case

in support of a specific prayer is absolutely the prerogative of party seeking favourable order and in due discharge of same new convincing cogent

materials should have been produced for the best satisfaction of court. There ought to have produced some convincing materials before the Trial

Court suggestive of causing disobedience to the order of injunction, or at least an attempt to violate or disobey the order of injunction. The prayer for

police help was not even backed by any local inspection commissioner's report.

The decision as referred by the learned advocate for the opposite parties in the case of Joydev Das (Supra) having already considered the decision

reported in Sri Paresh Chandra Das (Supra), this court is of the view that without production of tangible materials, indicative of making violation of

injunction order or even threat to that effect, the prayer for police help is not backed by strong convincing grounds.

It is not desirable that an order for police help should be made on the mere asking of a party without being supported by any cogent materials,

indicative of violation or disobedience caused to the order of injunction and/or at least an attempt to violate or disobey the order. Since the inherent

power exercisable under Section 151 C.P.C. presupposes exercise of the same with much care, caution and circumspection, on due satisfaction of the

court, the Trial Judge thus felt obliged to come to a definite finding that the party asking the court to favour him with an order of police help was

sucessful to show that there left no iota of doubt in his attempt of petitioner to establish attempted or actual violation of the injunction order, without

which the prayer for police help should not be acceded to.

In the case in hand, for want of existence of tangible materials before the learned court below, the real reason reasonably for anticipation of making

interference with the injunction order, could not be discovered, and rejected the same. That being the position the petitioner seeking police help failed

to discharge his incumbent duty to avail of the aid of Section 151 C.P.C. for the implementation of injunction order.

The order refusing police help would go un-interfered with. This revisonal application fails being without any merits. With this observation, and

direction, the revisional application stands disposed of.

Urgent certified copy of this order and judgment, if applied for, be given to the appearing parties as expeditiously as possible upon compliance with the

all necessary formalities.