Police Act, 2011 (Kerala) - S.63 - Police action in disputes which may lead to cognizable offence - Plaintiff contended that the police
department cannot be selective in enforcing the orders passed by courts. A
serious complaint is raised that they adopt different postures and stances in
implementing the court orders. No discretion is vested in any of officers of
police department, however high he may be, to decide as to which court order
shall be enforced and which shall not be.
This provision envisages situations arising out of property disputes or other disputes raised by individuals or groups. It is certainly inapplicable to a case where one party armed with an order of a competent court approaches the police for its enforcement. In fact, it is evident that the police officers not only failed in their duty or derelicted their duty, but prevented a rightful person from enforcing his legal right recognized by a court.
A lawful order passed by a competent court, whether
it be by a court of lowest jurisdiction or the highest court in the land, the
police is bound to enforce it in accordance with law. Police has no right or
authority to sit in appeal on the orders passed by the courts and examine its
correctness. It can be decided only by higher courts in the hierarchy. State
administration also has a non-negotiable constitutional responsibility to
maintain majesty of the rule of law. The police department, being a limb of the
State administration, is also duty bound to enforce the rule of law. The police
officers concerned by citing some irrelevant provisions from the Kerala Police
Act, 2011 cannot extricate themselves from the duty and responsibility of
enforcing the court's order. Legal rights of citizens cannot be decided merely
by looking into the Kerala Police Act, 2011. Apart from the Kerala Police Act,
there are other central statutes like Indian Penal Code, Code of Criminal
Procedure, etc. whereunder the police is obliged to act under such situations.
IN
THE HIGH COURT OF KERALA AT ERNAKULAM
A.
HARIPRASAD, J.
O.P.(C)
No.3147 of 2018
Dated
this the 18th day of December, 2018
AGAINST
THE ORDER DATED 23.11.2018 IN IA NO.2738/2018 IN OS NO.162/2018 of MUNSIFF'S
COURT,MUVATTUPUZHA
PETITIONER:
JOHNSON
KURIAKOSE, AGED 52 YEARS, SON OF KURIAKOSE, THEKKILAKATTU HOUSE, KOZHIPILLY
KARA, VARAPETTY, KOTHAMANGALAM. PIN 686 691.
BY
ADVS.SRI.R.D.SHENOY (SENIOR ADVOCATE) SRI.S.VINOD BHAT MS.ANAGHA LAKSHMY RAMAN
RESPONDENT:
1
FR. THOMAS PAUL RAMBAN, AGED 46 YEARS SON OF LATE PAULOSE, MARACHERIL HOUSE, KUTHUKUZHI
KARA, KOTHAMANGALAM VILLAGE, KOTHAMANGALAM TALUK. PIN 686 691.
2
FR. BIJU VARKEY, SON OF VARKEY, KORATTIYIL HOUSE, MUDAVOOR KARA, VELLOORKUNNAM
VILLAGE, MUVATTUPUZHA TALUK. PIN 686 673.
3
FR. MONCY N. ABRAHAM, SON OF ABRAHAM, NIRAVATHUKANDATHIL HOUSE, NELLIMATTOM
KARA, KUTTAMANGALAM VILLAGE, KOTHAMANGALAM TALUK. PIN 686 693.
4
FR. GEEVARGHESE M.T., SON OF THOMAS, MANNARAMBIL HOUSE, AAZHAKAM KARA,
MUKANNOOR VILLAGE, ALUVA TALUK. PIN 683 577.
5
FR. BASIL K. PHILIP, SON OF PHILIP, KOTTICKAL HOUSE, PADIKKAPPU KARA,
MANNAMKANDAM VILLAGE, DEVIKULAM TALUK.PIN 685 561.
6
FR. BIBIN C.U., SON OF ULAHANNAN, CHERUKUNNEL HOUSE, THEKKENMARADY KARA, MARADY
VILLAGE, MUVATTUPUZHA TALUK. PIN 686 673.
7
SALIM CHERIAN, SON OF CHERIAN, MALIYIL HOUSE, ILAVANADU KARA, KOTHAMANGALAM-
686 691.
R1
BY ADVS.SRI.S.SREEKUMAR (SENIOR ADVOCATE) SRI.ROSHEN D.ALEXANDER R7 BY ADV.
SRI.G.SREEKUMAR (CHELUR)
THIS
OP (CIVIL) HAVING COME UP FOR ADMISSION ON 04.12.2018, THE COURT ON 18.12.2018
DELIVERED THE FOLLOWING:
J U
D G M E N T
This
original petition under Article 227 of the Constitution of India is filed by
the 8th defendant in
O.S.No.162 of 2018 before the Munsiff's Court, Muvattupuzha, challenging Ext.P7
order passed by the learned Munsiff on I.A.No.2738 of 2018. As per the above
application, enforcement of an order of temporary injunction passed on
I.A.No.830 of 2018 in the above suit is sought by providing police protection
to the plaintiff/1st respondent.
2. 1st respondent is the plaintiff and the
respondents 2 to 7 are the defendants 2 to 7 in the above suit. It is the case
of the plaintiff that he is the vicar of the 1st defendant church appointed on 16.08.2017 by the Metropolitan of Angamali
Diocese of Malankara Orthodox Syrian Church (in short, Malankara Church). 1st defendant church, viz., Marthomman
Cheriya Palli, Kothamangalam is a constituent parish church of Malankara
Church. The church is to be governed by 1934 constitution of Malankara Church.
It is the case of the plaintiff that Malankara Churches follow Orthodox Syrian
faith from the time of its establishment. Malankara Church was accepting the
spiritual leadership of the Catholicos of East. In 1972, the relationship
between the Patriarch of Antioch and the Catholicos was strained. Thereafter
slew of litigations were fought between the two rival groups in the Malankara
Church. The decrees passed by this Court in O.S.No.1 of 1979 and other cases
were taken to the Supreme Court and finally in 1995, the Supreme Court decided
the cases declaring the law binding on the parish churches in the fold of
Malankara Church. Plaintiff contended that recently also the Supreme Court re-affirmed
the judgment rendered by it in the year 1995.
3. Defendants 2 to 9 are members
of Jacobite faction in the Malankara Church and they functioned under a
constitution called “Jacobite Syrian Christian Sabha, 2002”. They are not
appointed as per 1934 constitution and they have no right to act as vicars and
assistant vicars of the 1st defendant church. Therefore, the plaintiff sought for the following
reliefs against defendants:
“a.
Restraining the defendants 2 to 9 and their men or agents from causing
obstruction to the plaintiff in discharging duties of parish priest of the 1st defendant-church
including conducting Holy Mass and discharging all other religious functions of
the 1st defendant-church and its kurisadies cemetery, etc, situated in
the plaint schedule properties and restraining the defendants 2 to 6 from
acting as the vicar or as the assistant vicars of the 1st defendant-church
and restraining the defendants 2 to 9 from bringing Metropolitans and Priests
belonging to Patriarch faction in violation of 1934 Constitution in the 1st defendant church.
d.
Allowing cost of this suit to the plaintiff; and e. Granting such other relief
which are deemed fit and proper in the interest of justice and which may prayed
for here after.”
4. Along with the suit, an
application for temporary injunction was also filed as I.A.No.830 of 2018
before the court below seeking the following reliefs:
“For
the reasons stated in the accompanying affidavit it is humbly prayed that this
Hon'ble court may be pleased to pass an order of temporary injunction
restraining the defendants 2 to 9 and their men or agents from causing
obstruction to the plaintiff in discharging duties of parish priest of the 1st defendant-church
including conducting Holy Mass and discharging all other religious functions of
the 1st defendantchurch and its kurisadies, cemetery, etc, situated in
the plaint schedule properties and restraining the defendants 2 to 6 from
acting as the vicar or the assistant vicars of the 1st defendant-church
and restraining the defendants 2 to 9 from bringing Metropolitans and Priests
belonging to Patriarch faction in violation of 1934 Constitution in the 1st defendantchurch,
till the disposal of the suit.”
In that
matter, the court below passed the following order: “In the result, this petition is allowed in the following terms
:
1.
Defendants 2 to 9/Respondents their men and agents are restrained by an order
of temporary prohibitory injunction from causing any obstruction to the
plaintiff in discharging the duties of the parish priest of the first defendant
church including conducting of holy mass and other religious functions of the
first defendant in its Kurishadi, Cemetery etc and defendants 2 to
6/respondents 1 to 5 from acting as Vicars/Assistant Vicars of the first
defendant church and from doing any acts as the Vicars/Assistant Vicars of
first defendant church till the disposal of the suit.
2. Petitioner is also entitled to realise
costs of the petition from the respondents.”
5. The matter was taken up in
appeal by the defendants 2 to 8 before the Court of Subordinate Judge,
Muvattupuzha in C.M.A.No.19 of 2018. After considering merits of the
contentions, the appeal was dismissed by the learned Sub Judge confirming the
order passed by the trial court. The order of temporary injunction granted by
the trial court is challenged in pending O.P.(C) No.2333 of 2018 by some of the
defendants in the suit.
6. In I.A.No.2738 of 2018, the
plaintiff/1st respondent
contended that in O.P.(C) No.2333 of 2018, this Court on 18.09.2018 directed
the parties to maintain status quo as ordered in terms of the interim order passed
in C.M.A.No.19 of 2018. Thereafter, on 24.09.2010, after hearing the parties,
this Court refused to extend the interim order to maintain status quo. It
resulted in the resurrection of the temporary injunction order. It was alleged
before the trial court that in flagrant violation of the order passed on the
temporary injunction application, the respondents in the application acted as
vicars and assistant vicars and they conducted religious ceremonies in the 1st defendant church. On 18.09.2018, the 1st respondent came to know that the
respondents 2 to 8 colluded together and published a notice on 17.09.2018 about
conducting a festival in the 1st defendant church from 25.09.2018 to 04.10.2018. It is alleged by the 1st respondent that the defendants did not
mention name of the vicar in the notice. It was published that the defendants 2
to 8, their bishops and priests, who are not appointed as per 1934 constitution,
would conduct the religious ceremonies. Defendants 2 to 8 intended to conduct
religious ceremonies in violation of the temporary injunction order passed on
I.A.No.830 of 2018 and to cause obstructions to the 1st respondent in conducting the religious
ceremonies in the 1st defendant church during the festival days. As per 1934 constitution,
the plaintiff alone has a right to conduct religious ceremonies, including the
festival in the 1st defendant church. Plaintiff apprehended that the defendants 2 to 8
would continue to act in violation of the injunction order as they were bent
upon causing obstructions to the plaintiff performing the ceremonies in the 1st defendant church. It could lead to law
and order problems in the 1st defendant church and its premises. Therefore, he sought for the help
of the Deputy Superintendent of Police, Muvattupuzha for implementing the order
of injunction in this matter.
7. The contesting defendants
filed a counter affidavit in the application contending that the 1st respondent/plaintiff has no role in the 1st defendant church. The order of temporary
injunction has not become final and it is pending in O.P.(C) No.2333 of 2018
before this Court. The famous “kanni 20” feast in the 1st defendant church was scheduled to be
conducted from 25.09.2018 to 04.10.2018 and it was the 333rd death anniversary of St.Mar Baselious
Eldo Bawa. This festival is conducted by the entire people in the locality for
more than three centuries without any obstruction. It is also contended that
the defendants did not violate any order of the court and never threatened the
plaintiff as alleged. All the defendants separately filed counter affidavits
opposing the claim for enforcing the temporary injunction order through police.
8. Heard the learned senior
counsel for the petitioner and the learned senior counsel appearing for the 1st respondent. Learned counsel appearing for
the 7th respondent
is also heard.
9. Trial court, after
considering the rival contentions and relying on certain decisions on the
point, found that the Station House Officer, Kothamangalam Police Station on
flimsy and unconvincing reasons failed to render police protection to the 1st respondent/plaintiff stating that his
entry in the 1st defendant
church could lead to a breach of law and order in the area. The trial Judge in
strong words criticized the attitude of the police and held that the
respondents 2 to 8 are bound to obey the orders of the court and since they
contumaciously defied the prohibitory orders, it has to be enforced by
rendering police protection.
10. Learned senior counsel
appearing for the petitioner herein, who is the 7th respondent in I.A.No.2738 of 2018, contended that the court below
erred seriously in granting an order of police protection flouting the
precedents on the point and that too on a mere asking. According to him, the
essential aspects which are to be borne-in-mind for granting police protection
are not considered by the court below. In order to buttress this contention,
learned senior counsel relied on certain precedents.
11. Placing reliance on Mammoo v. Krishnan (1978 KLT 901), learned senior counsel for the petitioner contended that the
impugned order is unsustainable. In paragraph 4, the following observations are
made by the learned single Judge in the above decision:
“The
very foundation of the jurisdiction of the court to requisition police aid in
order to discharge its function of giving effect to its decision being its
inherent powers to which it can have resort only for the purpose of meeting
ends of justice and to prevent abuse of process of court, the court can
exercise this power only when it is ‘absolutely necessary’, and, note ‘no party
has a right to insist the court to exercise it.’ Manoharlal v. Seth Haralal
(AIR. 1962 SC. 527). In other words, decree holder cannot as of right claim
police aid, nor shall the court requisition the same as a matter of course. The
court, on a consideration of all the circumstances of the case and after giving
due weight to all aspects, should be satisfied that it is absolutely necessary to
requisition police aid in order to avert miscarriage or failure of justice or
to prevent abuse of process of court."
Although the
facts in both the cases are different, the principles quoted above are relevant.
12. No authority is required to
observe that the power to order police protection emanate from Section 151 of
the Code of Civil Procedure, 1908 (in short, CPC).
13. Next decision relied on by
the learned senior counsel for the petitioner is Abdul Rahim v. Nazarullah (1998 (2) KLJ 643). That was a case where a temporary injunction order was sought to be
enforced through police. After scanning the decisions on the point, a learned
single Judge set aside the order granting police protection by the trial court
on finding that the court did not grant time to the opposite party to file
their objection before granting the order. It was also found that it is not
justifiable on the part of the court below to direct police aid in order to put
up boundaries to properties pending the suit.
14. Another learned single Judge
in V.S.Ayyappan v. Fr. Thomas Viruthiyil (1989
(2) KLJ 343) relying on the decision in State of Bihar v. Sonabati Kumari (AIR 1961 SC 221) held that application under Order XXXIX Rule 2A and Order XXI Rule 32
CPC have a punitive aspect. This decision is cited to impress upon that another
application filed by the 1st respondent invoking Order XXXIX Rule 2A CPC was adjourned by the trial
court without considering the merits of the petition along with this
application. I shall deal with this contention in the succeeding paragraphs.
15. State of Bihar v.
Sonabati Kumari (supra) is a constitution
bench decision rendered after considering all the aspects on disobedience of an
order of temporary injunction and the liability to proceed in contempt. In
paragraph 23, the following observations are made:
“Learned
Counsel laid considerable stress on the proceedings under O.39, R.2(3) being
quasi-criminal, in an attempt to establish that the State could not be
proceeded against for such a criminal wrong.
Though
undoubtedly proceedings under O.39, R.2(3) Civil Procedure Code have a punitive
aspect-as is evident from the contemner being liable to be ordered to be
detained in civil prison, they are in substance designed to effect the
enforcement of or to execute the order. This is clearly brought out by their
identity with the procedure prescribed by the Civil Procedure Code for the
execution of a decree for a permanent injunction. Order 21, R.32 sets out the
method by which such decrees could be executed-and Cl.(1) enacts-”where the
party against whom a decree.…......... for an injunction has been passed, has
had an opportunity for obeying the decree and has wilfully failed to obey it,
the decree may be enforced, in the case of a decree ….... for an injunction by
his detention in the civil prison, or by the attachment of his property or by
both.” Clauses 2 and 3 of this rule practically reproduce the terms of Cls.4
& 3 respectively of O.39, R.2, and the provisions leave no room for doubt
that O.39, R.2(3) is in essence only the mode for the enforcement or
effectuation of an order of injunction. While on the provisions of O.21, R.32,
it may be pointed out that learned Counsel for the State does not contend that
a State Government against whom a decree for a permanent injunction has been
passed is not liable to be proceeded against under this provision of the Code
in the event of the decree not being obeyed by them. No doubt the State
Government not being a natural person could not be ordered to be detained in
civil prison, on the analogy of Corporations for which special provision is made
in O.39, R.5, but beyond that, both when a decree for a permanent injunction is
executed and when an order of temporary injunction is enforced the liability of
the State Government to be proceeded against appears to us clear. The third
point urged lacks substance and is rejected.”
16. A single Judge in Kochupennu Anbujakshi v. Velutha Kunju (1992 (2) KLJ 606), after considering various decisions touching on the enforcement of orders
passed by courts through police, held that only a final order passed under Rule
1 or Rule 2 of Order XXXIX CPC can be enforced with the assistance of police.
Here such an order is sought to be enforced is undisputed.
17. It is argued by the learned
senior counsel for the petitioner that the court below had no material before
it to find that the respondents in I.A.No.2738 of 2018 prevented the 1st respondent herein (plaintiff) from
entering the church. It is also contended that the court below issued a
commission by passing Ext.P6 order and it was intended only to see whether the
temporary injunction order was violated. Prayer in the application is to
appoint a commissioner to oversee whether any violation of the order was taking
place in the 1st defendant
church during the annual feast. Repelling the contentions of the petitioner
herein and other respondents before the court below the application was
allowed. The commissioner's report was relied on by the trial Judge to find
that the 1st respondent/plaintiff
was prevented from entering the church and performing his duties. Argument
raised on behalf of the petitioner that the commissioner's report should not
have been taken into consideration for deciding the present application as it
was obtained for the specific purpose of deciding the question of violation of injunction
order cannot hold good. It is indisputable that the commissioner's report forms
part of the record in the case. Trial court has every right to look into the materials
in the record to decide the disputes. Commissioner's report cannot be excluded
from consideration in this matter.
18. Learned senior counsel
appearing for the 1st respondent/plaintiff contended that on a perusal of the impugned
order, it will be clear that the trial Judge has considered the scope of the
petitions and the materials placed before the court to find that the defendants
were obstructing the plaintiff from performing his duties as vicar in-charge.
It is seen from the impugned order that Ext.A14 is the notice issued by the Station
House Officer, Kothamangalam Police Station purportedly invoking Sections 39
and 63 of the Kerala Police Act, 2011. Section 39 of the Kerala Police Act
reads as follows:
“39. Lawful directions of police to be
complied with.- (1) All persons
shall comply with the lawful directions given by a Police Officer for the
discharge of his functions under the Act.
(2)
For ensuring the compliance of any lawful direction during the discharge of any
lawful duty conferred on any Police Officer under this Act or any rule,
regulation or order made thereunder, a Police Officer may,- (a) warn a person,
who is about to commit an offence punishable under any law or any rule or order
made under any law, for preventing the same; (b) require any person to comply
with any law which specifies the manner in which such person shall act on his
own matter or in the matter of another person or on any matter under his
charge; (c) subject to the provisions of clauses (a) and (b), a police officer
may arrest any person who is committing an offence or has committed an offence
in his presence if such arrest is considered lawfully necessary; (d) seize any
articles which is used or about to be used for committing the offence; (e)
seize any article relating to which an offence has been committed, if such
seizure of that article is necessary for preventing such offence or for
investigating such offence.”
On a perusal
of the above provision of law, it can be seen that the Station House Officer
has either completely misunderstood its scope or feigned ignorance of the object
of the provision. It enjoins him to enforce the law against a violator. It
cannot be used to deter a person complaining about disobedience of a lawful
order of temporary injunction passed by a competent court. In fact none of the
aspects in Section 39 of the Kerala Police Act empowered him to issue a notice
like Ext.A14.
19. Another provision quoted by
the Station House Officer is Section 63 of the Kerala Police Act. It reads as
follows:
“63. Police action in disputes which
may lead to cognizable offence.-
If anyone brings to notice of the circumstance of a dispute between any
individuals or groups which if not resolved at the earliest is likely to
culminate into a cognizable offence, the Station House Officer shall take
steps,- (a) to ascertain the facts and circumstances of the matter by
interacting with the individuals concerned or to others acquainted with such
facts; or (b) to give warning in writing to any individuals or all groups
involved in the dispute against the doing of any unlawful act in continuation
of the dispute; or (c) to encourage individuals or groups involved in the
dispute to redress the dispute through mutual discussion or through mediation;
or (d) to advise individuals or groups to approach the Competent Court having
jurisdiction for redressing the dispute; or (e) to require the individuals or
groups to seek redressal of the dispute by appearing before an Executive
Magistrate having jurisdiction; or (f) to report facts before the Magistrate
having jurisdiction for taking suitable action against any individual or all
groups under the provisions of the Code of Criminal Procedure, 1973 (Central
Act 2 of 1974).”
This
provision envisages situations arising out of property disputes or other disputes
raised by individuals or groups. It is certainly inapplicable to a case where one
party armed with an order of a competent court approaches the police for its enforcement.
In fact, it is evident that the police officers not only failed in their duty or
derelicted their duty, but prevented a rightful person from enforcing his legal
right recognized by a court.
20. Learned senior counsel for
the 1st respondent/plaintiff
relying on Mohammad v. Mohammed Haji (1986
KLT 134) contended that though action can be taken
by a court for violation of injunction under Order XXXIX Rule 2A CPC, that does
not end there as it is open to the court to implement its order by exercising
its inherent powers under Section 151 CPC.
21. Another decision relied on by
the learned senior counsel for the 1st respondent is Delhi
Development Authority v. Skipper Construction Co.(P) Ltd. and another ((1996) 4
SCC 622). The law declared therein reads as
follows:
“The
contemner should not be allowed to enjoy or retain the fruits of his contempt.
17. The principle that a contemner ought
not to be permitted to enjoy and/or keep the fruits of his contempt is well
settled. In Mohd.Idris v. Rustam Jehangir Babuji ((1984) 4 SCC 216:1984 SCC
(Cri) 587: (1985) 1 SCR 598) this Court held clearly that undergoing the punishment
for contempt does not mean that the court is not entitled to give appropriate
directions for remedying and rectifying the things done in violation of its
orders. The petitioners therein had given an undertaking to the Bombay High
Court. They acted in breach of it. A learned Single Judge held them guilty of
contempt and imposed a sentence of one month's imprisonment. In addition
thereto, the learned Single Judge made appropriate directions to remedy the
breach of undertaking. It was contended before this Court that the learned
Judge was not justified in giving the aforesaid directions in addition to punishing
the petitioners for contempt of court. The argument was rejected holding that “the
Single Judge was quite right in giving appropriate directions to close the
breach (of undertaking).”
18.
The above principle has been applied even in the case of violation of orders of
injunction issued by civil courts. In Clarke v. Chadburn ((1985) 1 All ER 211)
Sir Robert Megarry V-C observed :
“I
need not cite authority for the proposition that it is of high importance that
orders of the court should be obeyed. Wilful disobedience to an order of the
court is punishable as a contempt of court, and I feel no doubt that such
disobedience may properly be described as being illegal. If by such
disobedience the persons enjoined claim that they have validly effected some
charge in the rights and liabilities of others, I cannot see why it should be
said that although they are liable to penalties for contempt of court for doing
what they did, nevertheless those acts were validly done. Of course, if an act
is done, it is not undone merely by pointing out that it was done in breach of
the law. If a meeting is held in breach of an injunction, it cannot be said
that the meeting has not been held. But the legal consequences of what has been
done in breach of the law may plainly be very much affected by the illegality.
It seems to me on principle that those who defy a prohibition ought not to be
able to claim that the fruits of their defiance are good, and not tainted by
the illegality that produced them.”
19.
To the same effect are the decisions of the Madras and Calcutta High Courts in
Century Flour Mills Ltd. v. S.Suppiah (AIR 1975 Mad 270 : (1975) 2 MLJ 54) and
Sujit Pal v. Prabir Kumar Sun (AIR 1986 Cal 220 : (1986) 90 CWN 342). In Century
Flour Mills Ltd., it was held by a Full Bench of the Madras High Court that
where an act is done in violation of an order of stay or injunction, it is the
duty of the court, as a policy, to set the wrong right and not allow the
perpetuation of the wrongdoing. The inherent power of the court, it was held,
is not only available in such a case, but it is bound to exercise it to undo
the wrong in the interest of justice. That was a case where a meeting was held contrary
to an order of injunction. The Court refused to recognise that the holding of
the meeting is a legal one. It put back the parties in the same position as
they stood immediately prior to the service of the interim order.
20. In Sujit Pal a Division Bench of the
Calcutta High Court has taken the same view. There, the defendant forcibly
dispossessed the plaintiff in violation of the order of injunction and took
possession of the property. The Court directed the restoration of possession to
the plaintiff with the aid of police. The Court observed that no technicality can
prevent the court from doing justice in exercise of its inherent powers. It
held that the object of Rule 2-A of Order 39 will be fulfilled only where such
mandatory direction is given for restoration of possession to the aggrieved
party. This was necessary, it observed, to prevent the abuse of process of law.”
22. In Meera Chauhan v. Harsh Bishnoi and others ((2007) 12 SCC 201) the Supreme Court observed thus:
“At
the same time, it is also well settled that when parties violate order of
injunction or stay order or act in violation of the said order the Court can,
by exercising its inherent power, put back the parties in the same position as
they stood prior to issuance of the injunction order or give appropriate
direction to the police authority to render aid to the aggrieved parties for
the due and proper implementation of the orders passed in the suit and also
order police protection for implementation of such order.”
23. Recently a division bench of
this Court in Shaji M.K. and
another v. State of Kerala and others (2018 (3) KHC 69) has considered how to tackle disobedience and breach of interim orders
in the following words:
“15.
Therefore, where there is disobedience or breach of an order of temporary
injunction passed by the Civil Court under Order XXXIX, R.1 of the Code of
Civil Procedure, the remedy open to the plaintiff/applicant is either to apply
that Court under Order XXXIX, R.2A of the Code seeking an order to attach the
property of the person guilty of such disobedience or breach and for an order
to detain such person in civil prison for a term not exceeding three months. In
appropriate cases, the plaintiff/applicant can invoke the inherent powers of
the Civil Court under S.151 of the Code, which includes the power to grant police
protection to secure compliance of the order of temporary injunction. When
there are adequate provisions under the Code which enables the Civil Court to
enforce and implement its orders, the plaintiff/applicant cannot approach this
Court under Art.226 of the Constitution of India seeking police protection to
secure compliance of the order of temporary injunction.
16. In the instant case, the averments in
Exts.P3 and P5 complaints made by the 2nd
petitioner before the 3rd and 4th respondents
would make it explicitly clear that, alleging breach of Ext.P2 order of temporary
injunction by respondents 5 to 8 herein, their men and agents, the petitioners
are seeking police protection, in order to bring construction materials to
their property through plaint D schedule property and for enjoying the said
pathway in terms of Ext.P2 order of temporary injunction. If there is any
disobedience or breach of Ext.P2 order of temporary injunction, the remedy open
to the 1st petitioner who is the plaintiff in O.S.No.1241 of 2016 on the
file of the Principal Munsiff's Court, Ernakulam, is either to apply that Court
under Order XXXIX, R.2A of the Code against the person or persons guilty of
such disobedience or breach, or to invoke the inherent powers of that Court under
S.151 of the Code, which includes the power to grant police protection, in
appropriate cases, to secure compliance of the order of temporary injunction.”
24. The law on the point is very
clear that an order of injunction, if violated, can be enforced by taking
punitive action against the contemnor under Order XXXIX Rule 2A CPC as well as
by enforcement of the order with the aid of police by invoking Section 151 CPC.
25. The argument advanced on the
side of the petitioner that the commissioner's report would show that the 1st respondent did not go to the church on
02.10.2018 and 03.10.2018 on his own and nobody prevented him cannot be accepted
for the reason that he had approached the police for help anticipating violence
and personal hurt. For utterly unlawful and unreasonable reasons, the Station
House Officer and the Deputy Superintendent of Police, Muvattupuzha failed,
rather refused, to afford protection to the petitioner. On no count, their conduct
can be approved. In fact, as observed by the trial Judge, it is contumacious and
may even amount to contempt of court.
26. Learned senior counsel for
the 1st respondent
relying on the Supreme Court decisions in K.S.Varghese
and others v. Saint Peter's and Saint Paul's Syrian Orthodox Church and others
(2017 (3) KLT 261) and Mathews Mar Koorilos v. Pappy (2018 (3) KLT 990) contended that the 1st defendant church indisputably falls within the domain of Malankara
Church to be administered under 1934 constitution. It is also argued that the
defendants in the suit have no case that they owe allegiance to 1934 Malankara
Church constitution. It is therefore argued that they cannot have any sort of
right in the 1st defendant
church on account of the binding pronouncements by the Supreme Court. Learned
senior counsel reiterated that the 1st defendant church is one of the churches included in the suit, which
was decided by the Supreme Court in P.M.A.Metropolitan
v. Moran Mar Marthoma (AIR 1995 SC 2001). When the
issues, once settled in P.M.A.Metropolitan's case, were again raked up in K.S.Varghese's case, a two Judge bench affirmatively held thus:
“228.
Resultantly, based on the aforesaid findings in the judgment, our main
conclusions, inter alia, are as follows :
228.1.
Malankara Church is episcopal in character to the extent it is so declared in
the 1934 Constitution. The 1934 Constitution fully governs the affairs of the
parish churches and shall prevail.
228.2.
The decree in the Most Rev.P.M.A Metropolitan v. Moran Mar Marthoma (1995(2)
KLT SN 28 (C.No.37) SC = 1995 Supp.(4) SCC 286) is completely in tune with the
judgment. There is no conflict between the judgment and the decree.
228.3.
The Most Rev.P.M.A Metropolitan v. Moran Mar Marthoma (1995(2) KLT SN 28
(C.No.37) SC = 1995 Supp.(4) SCC 286) arising out of the representative suit is
binding and operates as res judicata with respect to the matters it has
decided, in the wake of the provisions of Order 1 Rule 8 and Explanation 6 to
S.11 C.P.C. The same binds not only the parties named in the suit but all those
who have interest in the Malankara Church. Findings in earlier representative
suit i.e., Samudayam suit are also binding on parish churches/parishioners to the
extent issues have been decided.
228.4.
As the 1934 Constitution is valid and binding upon the parish churches. It is
not open to any individual Church, to decide to have their new Constitution
like that of 2002 in the so-called exercise of right under Articles 25 and 26
of the Constitution of India. It is also not permissible to create a parallel
system of management in the Churches under the guise of spiritual supremacy of
the Patriarch.
xxxxxxxxx
228.20.
The 1934 Constitution is enforceable at present and the plea of its frustration
or breach is not available to the Patriarch faction. Once there is Malankara
Church, it has to remain as such including the property. No ground or
denomination by majority or otherwise can take away the management or the
property as that would virtually tantamount to illegal interference in the
management and illegal usurpation of its properties. It is not open to the
beneficiaries even by majority to change the nature of the Church, its property
and management. The only method to change management is to amend the
Constitution of 1934 in accordance with law. It is not open to the parish
churches to even frame bye-laws in violation of the provisions of the 1934
Constitution.
xxxxxxx
228.24.
The formation of the 2002 Constitution is the result of illegal and void
exercise. It cannot be recognised and the parallel system created thereunder
for administration of parish churches of Malankara Church cannot hold the
field. It has to be administered under the 1934 Constitution.
xxxxxxxx
228.27.
The plea that in face of the prevailing dissension between the two factions and
the remote possibility of reconciliation, the religious services may be
permitted to be conducted by two Vicars of each faith cannot be accepted as
that would amount to patronising parallel systems of administration.”
These
aspects, along with other relevant aspects, have been reaffirmed by a three Judge
bench of the Supreme Court in Mathews
Mar Koorilos (supra). In the light of the
principles enunciated by the Supreme Court, it is not open to any court in this
country to take a different view. Therefore, the temporary injunction order now
sought to be enforced through police aid has to be enforced with full vigour
unless and until the temporary injunction order is vacated or modified by this
Court in the pending original petition.
27. Regarding the non-hearing of
a petition filed by the 1st respondent under Order XXXIX Rule 2A CPC, it is to be observed that
mere violation of injunction order may not be sufficient to punish a person by
invoking the above provision and it must be established that he knowingly and
contumaciously violated the injunction order. A decision therefore can be taken
only after making an elaborate enquiry. Therefore, the trial court cannot be
blamed for not considering the application under Order XXXIX Rule 2A CPC along
with this petition.
28. Yet another contention raised
by the petitioner that no police aid is required as there was no obstruction
caused by the defendants to the plaintiff's functioning cannot be countenanced
for the reason that the defence plea taken up by them is a total denial of the
plaintiff's rights.
29. As observed earlier, I find
no illegality or impropriety in the order passed by the court below directing
the police to render sufficient help to the 1st respondent. In fact, in the well written order the trial court has considered
the aspects properly. Illegality and impropriety is entirely on the part of the
police in refusing to render necessary help.
30. Learned senior counsel
appearing for the 1st respondent (plaintiff) contended that the police department cannot be
selective in enforcing the orders passed by courts. A serious complaint is
raised that they adopt different postures and stances in implementing the court
orders. I emphatically state that no discretion is vested in any of officers of
police department, however high he may be, to decide as to which court order
shall be enforced and which shall not be. A lawful order passed by a competent
court, whether it be by a court of lowest jurisdiction or the highest court in
the land, the police is bound to enforce it in accordance with law. Police has
no right or authority to sit in appeal on the orders passed by the courts and
examine its correctness. It can be decided only by higher courts in the hierarchy.
State administration also has a non-negotiable constitutional responsibility to
maintain majesty of the rule of law. The police department, being a limb of the
State administration, is also duty bound to enforce the rule of law. The police
officers concerned by citing some irrelevant provisions from the Kerala Police Act,
2011 cannot extricate themselves from the duty and responsibility of enforcing the
court's order. Legal rights of citizens cannot be decided merely by looking
into the Kerala Police Act, 2011. Apart from the Kerala Police Act, there are
other central statutes like Indian Penal Code, Code of Criminal Procedure, etc.
whereunder the police is obliged to act under such situations.
For the said
reasons, I find no merit in the challenge raised in the original petition.
Hence it is dismissed affirming the trial court's order. The police officers
concerned shall enforce the order in letter and spirit forthwith.