Mozart Global Furniture vs State of Kerala and Others

K.M. Joseph, J.—Petitioner has approached this Court seeking the following reliefs:

i) to issue a writ of mandamus or any other appropriate writ or direction to the 2nd and 3rd respondents to give sufficient police protection to the life of the petitioner''s employees/staff who are working in the premises bearing Door Nos. 1/403 B, 1/403 C, 1/403 D, 1/403 S, 1/403 T, 1/403 J, 1/403 M and 1/403 N in Ward No. 1 of Choornikkara Panchayath, Aluva.

ii)to issue a writ of mandamus or any other appropriate writ or direction to the 2nd and 3rd respondents to give sufficient police protection for the conduct of business/works in Door Nos. 1/403 B, 1/403 C, 1/403 D, 1/403 S, 1/403 T, 1/403 J, 1/403 M and 1/403 N in Ward No. 1 of Choornikkara Panchayath, Aluva.

Briefly put, the case of the petitioner is as follows: Petitioner is doing business in furniture. For the purpose of starting a showroom in Aluva, petitioner took certain premises on lease from three owners. This was on 28.1.2009 under Ext.P1 lease deed. It appears that, the lessors have subsequently assigned their rights in favour of the 4th respondent. The 4th respondent instituted a civil suit. He also filed an application for temporary injunction. It is submitted that order of injunction has not been granted by the Court. It is further alleged that the party respondents and unidentified persons are threatening the possession of the petitioner and the inauguration of the shop which is to take place on 12.11.2010. After filing complaints before police without eliciting any positive response petitioner has come before us for police protection as stated.

A counter affidavit has been filed by the 5th respondent who is the power holder of the 4th respondent. The party respondents have produced the commission report in the civil suit. It is their case inter alia that the 4th respondent is in possession. It is also their case that large sums of money has been spent by the 4th respondent.

A reply affidavit is filed by the petitioner denying the case of party respondents.

We heard Sri. R. D. Shenoy, learned senior counsel for the petitioner, Sri.K. V. Jayachandran, learned Counsel for respondents 4 and 5 and also the learned Government Pleader.

Learned senior counsel for the petitioner would refer to the lease deed. He submits that the assignment was taken subsequently and it will be subject to the lease and it is not open to the party respondents and their men to obstruct the possession and rights of the petitioner. The inauguration of the shop is to be done on 12.11.2010. Since physical attack is launched by unidentified persons approach to this Court is justified, it is submitted. It is pointed out that the Civil Court has not granted injunction in favour of the party respondent. He would also refer to the commission report to contend that the Advocate Commissioner has noted the presence of a board showing the business name of the petitioner. He would refer to the prayers of the suit which includes as second prayer the prayer for decree for money representing the arrears of rent. In other words, it is the case of the petitioner that it is not open to the party respondent to resile from the lease deed. In fact, they have accepted the lease deed and are claiming rent also, it is submitted.

Learned Counsel for the party respondents on the other hand would point out that the 4th respondent is in possession, amounts are due and the 4th respondent has spent money. He would further point out that even in the demand made by the petitioner before the police it is the case of the petitioner that it was the lessors who had to do certain works. Learned Government Pleader would submit that a complaint is received and investigation is going on.

The prayer in the writ petition is for police protection in connection with the property rights of the petitioner. A civil suit is pending. There is a case for the party respondents that the party respondent is in possession.

It is true that the application for injunction is yet to be heard. It is open to the petitioner to move for injunction. We notice that no decision has been taken in the application for injunction filed by the 4th respondent. Even without a decision on the same the petitioner has come to this Court. This may not be permissible. In a case where the matter is in dispute it may not be open to the party to come to the High court for exercise of jurisdiction under Article 226 to first ascertain and establish the civil rights of the parties and then order protection. It has been settled by the decisions of this Court that unless in such circumstances there is an adjudication by the competent forum it may not be appropriate for the High Court to direct the police to give protection.

In such circumstances, we are not inclined to grant the reliefs at this stage of the matter when there is a dispute between the parties. We would think that it is more appropriate that the petitioner is relegated to urge its contentions and to seek relief including the relief of temporary injunction against the 4th respondent in the pending civil suit or in a separately constituted suit. Needless to say, if any such order is granted after notice to the parties it is open to the petitioner to seek protection from the civil Court. If the petitioner feels that it is a fit case where he should come to this Court under Article 226 at that stage, he may resort to this Court. At present, we see no reason to interfere. The writ petition is dismissed without prejudice to the right of the petitioner to seek appropriate relief from the competent forum. The civil Court will necessarily proceed to decide the matter untrammelled by anything contained in this judgment.