F.M. Reis, J.@mdashHeard Shri Shivan Desai, learned Counsel appearing for the petitioner, Shri D. Pangam, learned Counsel appearing for respondents No. 1 & 14 and Shri P. Shahapurkar, learned Counsel appearing for respondents No. 3 to 13. Rule. Heard forthwith with the consent of the learned Counsel. Learned Counsel appearing for the respondents waive service.
2. The above petition challenges an order passed by the learned Civil Judge Junior Division, Pernem dated 26/07/2012 whereby an application filed by the petitioner for police protection at Exhibit D-35 came to be rejected.
3. Shri Shivan Desai, learned Counsel appearing for the petitioner has pointed out that the petitioner was forced to file the said application as the respondents have committed breach of the order of temporary injunction which has forced the petitioner to file contempt application and take other remedy in law to enforce the order of temporary injunction operating against the respondents. The learned Counsel further pointed out that police protection sought by the petitioner is essential to avoid any cremation in the suit property in terms of the order passed by this Court dated 6/02/2009. The learned Counsel has taken me through the impugned order as well as the order passed by this Court and pointed out that the respondents are bent on committing breach of the said order and as such the petitioner is justified to seek police protection. The learned Counsel further pointed out that awaiting the execution of the order of temporary injunction would result in grave hardship to the petitioner as the activities are carried out by the respondents on some occasions without any prior knowledge of the petitioner and all of a sudden. The learned Counsel, as such, submits that the impugned order deserves to be quashed and set aside.
4. Shri D. Pangam, learned Counsel appearing for respondents No. 1 & 14 has pointed out that unless and until the petitioner shows that the order of temporary injunction is not executable or that the breach of such order would lead to an cognizable offence, the question of getting any police protection would not arise. The learned Counsel further pointed out that some of the respondents have got mundkarial right in the suit property and in case any police protection is granted they may be deprived of their occupation of their respective houses. The learned Counsel has thereafter taken me through the relief sought by the petitioner and pointed out that a relief in such a broad nature cannot be granted as the petitioner may misuse the grant of such police protection. The learned Counsel, as such, submits that the petition be rejected.
5. Shri P. Shahapurkar, learned Counsel appearing for respondents No. 3 to 13 has supported the submissions of Shri D. Pangam, learned Counsel appearing for respondents No. 1 & 14.
6. I have carefully considered the submissions of the learned Counsel appearing for the respective parties. I have also gone through the order of the temporary injunction passed by this Court dated 6/02/2009. This Court has inter alia restrained the respondents from doing any cremation in the suit property. There is also material on record to suggest that on previous occasions the petitioner was forced to file contempt applications which were disposed of by this Court. Apart from that the learned Judge whilst passing the impugned order has gone on the premise that the police protection sought is for the purpose of enforcing the order to the effect that the respondents would not be able to enter the houses existing in the property and/or occupying the same. The learned Judge has failed to take note of the fact that the only relief which was sought by the petitioner was to prevent the cremation in the suit property in terms of order passed by this Court dated 6/02/2009. Considering that the premise upon which the impugned order has been passed is not correct, I find that the learned Judge has committed a jurisdictional error whilst passing the impugned order.
7. Shri Shivan Desai, learned Counsel appearing for the petitioner has pointed out that he will file an appropriate application to clarify that the relief sought by the petitioner is only to prevent cremations from being carried out in the suit property. Hence, taking note of the relief sought by the petitioner in the application for police protection, I find that the petitioner should be given liberty to file a fresh application to seek police protection specifying the exact situation when such police protection is required to implement the order of temporary injunction. In case such an application is filed, the learned Judge shall deal with such application after hearing the parties in accordance with law. The learned Judge shall not be influenced in any manner with the observations in the impugned order whilst passing orders on such application. Considering the contention of the learned Counsel, I find it appropriate that the learned Judge disposes of such application within one month from the date of filing of such application. Subject to the above, the petition stands disposed of. In case any emergency situation arises liberty to the petitioner to seek for interim police protection to avoid any cremation in the suit property in accordance with law. All contentions of both the parties on merits are left open. Rule stands disposed of in the above terms. The petition stands disposed of, accordingly.
