Joseph Francis J.,
This Writ Petition under Article 226 of Constitution of India
is filed with the following prayers:
(i) To issue a writ of mandamus or any other appropriate writ
order or direction commanding the 6th respondent or render
adequate police protection for the petitioners and their children to
enter their residential house in re-survey No.251/13 of Koovappady
Village (Old Sy.No.83/2/1) and also live there peacefully.
(ii) To declare that the action of the respondents 1 to 5 and
men under them in obstructing the petitioners from entering the
residential house wherein the petitioners were residing which is
situate in re-survey No.251/13 of (Old Sy.No.83/2/1) Koovappady
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Village, threatening them with dire consequences as to their lives,
by showing weapons etc. as illegal.
2. The case of the petitioners is briefly as follows. The 1st
respondent along with his wife by name Ambika, as per Ext.P1
agreed to sell an extent of 2.02 Ares of property in re-survey
No.251/13 of Koovappady Village to the 2nd petitioner. Towards
the sale consideration an amount of Rs.25,000/- was paid by the 2nd
petitioner and the 1st respondent along with his wife received the
same. As per Ext.P1 the sale transaction has to be completed and
the property has to be registered in the name of the 2nd petitioner
within 11 months from the date of Ext.P1.
3. Since the petitioners did not have any other place to reside
the petitioners sought the permission of the 1st respondent and his
wife to construct a small residential house in the said property even
before the transfer of the property into the name of the 2nd petitioner
and the 1st respondent along with with his wife had permitted the
same. Accordingly the petitioners by spending an amount of
Rs.1,50,000/- has constructed a small house in the same property
W.P.(C) No. 9420 of 2010
and took up the residence in the same property. When the
residential house was constructed in a property having 5 cents, the
value of the property enhanced considerably and the 1st respondent
and his wife started to employ ways and means to wriggle out
Ext.P1.
4. Though the petitioners had, on several occasions,
expressed their willingness to pay the balance sale consideration
and to execute the necessary documents the 1st respondent and his
wife did not perform their part of the agreement. Ultimately the
petitioners filed O.S. No. 179 of 2009 before the sub Court,
Perumbavoor praying for the specific performance of Ext.P1
agreement. In the suit the petitioners had also filed I.A. No. 1371
of 2009 praying for the issuance of an order of temporary
injunction restraining the 1st respondent and his wife from
alienating the said property, from committing waste therein and
from forcibly evicting the plaintiff from the plaint schedule
property, the property covered Ext.P1 wherein the petitioners had
constructed a residential house.
W.P.(C) No. 9420 of 2010
5. The learned subordinate Judge, as per Ext.P3 order of
injunction allowed I.A. No.1371 of 2009. Ext.P3 was served on
the 1st respondent and his wife. Since Ext.P3 contains a prohibition
from forcibly evicting the petitioners, the respondents 1 to 5 have
on 8.3.2010 during night trespassed into the residential house of the
petitioners, and assaulted the petitioners causing them severe
injuries. They have also caused extensive damage to the household
articles and furniture. Since the petitioners sustained injury they
had to be admitted at the Vathiyath Hospital, Perumbavorr as
inpatients. They were undergoing treatment in the hospital and
were discharged from the hospital on 12.3.2010. On the same day
after getting discharged from the hospital the petitioners along with
their son went to their residential house. However, the respondents
1 to 4 and above 150 persons obstructed the petitioners from
entering the residential house.
6. The respondents 1 to 5 and men under them were heavily
armed with weapons such as sword sticks, sticks and stones. They
have also threatened the petitioners and their son with dire
W.P.(C) No. 9420 of 2010
consequences as to their lives. Since the petitioners apprehended
danger to their life and also to the life of their son, on 15.3.2010,
they came back and had spent the night on the veranda of a shop.
On 16.3.2010 also the petitioners went to their residential house.
However, on 16.3.2010 also the respondents 1 to 5 and men under
them obstructed the petitioners and their son, threatened them with
dire consequences to their lives and property and also driven them
away. Hence on 17.10.2010, the petitioners filed Ext.P4 petition
before the 6th respondent, the Sub Inspector of of Police, Kodanad
praying for adequate police protection. However, the 6th
respondent is adopting an attitude which is helpful to the
respondents 1 to 5, obviously on account of the influence exerted
by the respondents 1 to 5. Now the petitioners along with their
children are compelled to live either on the side of the road on the
veranda of some shops.
7. The fourth respondent filed counter affidavit for himself
and respondents 1 to 3 and 5 denying the allegations in the Writ
petition.
W.P.(C) No. 9420 of 2010
8. We heard the learned counsel for the petitioners and
learned counsel for the party respondents and also the learned
Government pleader.
9. The learned counsel for the petitioners submitted that the
court of competent jurisdiction has already passed Ext.P3 interim
order and the 6th respondent being the law enforcing agency under
the 7th respondent State has got a statutory duty to extend adequate
police protection to the lives of the petitioners. The party
respondents contended that Ext.P1 agreement for sale is vitiated by
fraud and misrepresentation and is null and void. The learned
counsel for the party respondents submitted that the only witness to
Ext.P1, is the 1st petitioner who is none other than the husband of
the 2nd petitioner. The learned counsel for the party respondent
submitted that after Ext.P1, by mis representing facts very wisely, a
sum of Rs.25,000/- together with another sum of Rs.25,000/- was
received by the petitioners from the first respondent and apart from
that three bangles weighing > soverings were also procured by the
petitioners fraudulently from the 1st respondent and his wife. The
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party respondents contended that the building in the property was
not constructed by the petitioners.
10. Admittedly a civil suit is filed by the 2nd petitioner/wife
which is pending before the Sub Court, Perumbavoor as O.S. No.
179 of 2009. This is a suit for specific performance of
Ext.P1agreement for sale and for permanent prohibitory injunction.
In that suit an exparte temporary injunction was passed as per order
in I.A. No. 137 of 2009 and that order has not become final. The 1st
respondent and his wife who are the defendants in that suit have
serious contentions in that suit.
11. The remedy available to aggrieved party under Article
226 of the Constitution of India is an extraordinary remedy and it is
not intended to be used for the purpose of declaring private right of
the parties. In the case of enforcement of Contractual rights and
liabilities the normal remedy is filing a civil suit and the High Court
will not exercise its prerogative writ jurisdiction to enforce such
contractual obligations.
12. Since proceeding under Article 226 are of summary
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nature disputed questions of facts should not normally be allowed
to be agitated and the High Court should not proceed to determine
such questions. Since the object of Article 226 is enforcement and
not the establishment of rights, no right can be determined or
adjudicated in the exercise of extraordinary jurisdiction. Therefore
we are of the view that the petitioners are not entitled to get any
relief on the basis of Ext.P1 agreement.
Accordingly this Writ Petition is dismissed as it is without
any merits.
K.M. JOSEPH, JUDGE
M. L. JOSEPH FRANCIS, JUDGE.
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