P.R. Murlidharan & Ors Vs. Swami Dharamanda
Theertha Padar & Ors
[2006] Insc 130 (10 March 2006)
P.K. Balasubramanyan
( @ SPECIAL LEAVE PETITION (CIVIL) NO. 22268 OF 2004) P.K. BALASUBRAMANYAN,
J.
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I respectfully agree with the
reasoning and conclusion of my learned Brother and agree that the appeal has to
be allowed and the decision of the High Court set aside.
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A Writ Petition under the guise of
seeking a writ of mandamus directing the police authorities to give protection
to a Writ Petitioner, cannot be made a forum for
adjudicating on civil rights. It is one thing to approach the High Court, for
issuance of such a writ on a plea that a particular party has not obeyed a
decree or an order of injunction passed in favour of
the Writ Petitioner, was deliberately flouting that decree or order and in
spite of the petitioner applying for it, the police authorities are not giving
him the needed protection in terms of the decree or order passed by a court
with jurisdiction. But, it is quite another thing to seek a writ of mandamus
directing protection in respect of property, status or right which remains to
be adjudicated upon and when such an adjudication can only be got done in a
properly instituted civil suit. It would be an abuse of process for a Writ
Petitioner to approach the High Court under Article 226 of the Constitution of
India seeking a writ of mandamus directing the police authorities to protect
his claimed possession of a property without first establishing his possession
in an appropriate civil court. The temptation to grant relief in cases of this
nature should be resisted by the High Court. The wide jurisdiction under
Article 226 of the Constitution of India would remain effective and meaningful
only when it is exercised prudently and in appropriate situations.
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In the case on hand, various
disputed questions arose based on a deed of trust and the facts pleaded by the
Writ Petitioner and controverted by the other side.
The High Court should have normally directed the Writ Petitioner to have his
rights adjudicated upon, in an appropriate suit in a civil court. The fact that
a Writ Petitioner may be barred from approaching the civil court, in view of
Order IX Rule 9 of the Code of Civil Procedure, or some other provisions, is no
ground for the High Court to take upon itself, under Article 226 of the
Constitution of India, the duty to adjudicate on the civil rights of parties
for the purpose of deciding whether a writ of mandamus could be issued to the
police authorities for the protection of the alleged rights of the Writ
Petitioner. A writ of mandamus directing the police authorities to give
protection to the person of a Writ Petitioner can be issued, when the court is
satisfied that there is a threat to his person and the authorities have failed
to perform their duties and it is different from granting relief for the first
time to a person either to allegedly protect his right to property or his right
to an office, especially when the pleadings themselves disclose that disputed
questions are involved. My learned Brother has rightly pointed out that the
High Court was in error in proceeding to adjudicate on the rights and
obligations arising out of the trust deed merely based on the affidavits and
the deed itself. I fully agree with my learned Brother that the High Court
should not have undertaken such an exercise on the basis that the right of the
Writ Petitioner under Article 21 of the Constitution of India is sought to be
affected by the actions of the contesting respondents and their supporters and
that can be prevented by the issue of the writ of mandamus prayed for.
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A writ for "police
protection" so-called, has only a limited scope, as, when the court is
approached for protection of rights declared by a decree or by an order passed
by a civil court. It cannot be extended to cases where rights have not been
determined either finally by the civil court or, at least at an interlocutory
stage in an unambiguous manner, and then too in furtherance of the decree or
order.
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Having said this, I agree with my learned
Brother and allow the appeal, set aside the order of the High Court and dismiss
the Writ Petition filed by the first respondent .
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