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CASE NO.: Appeal (civil)  1634 of 2006

PETITIONER: P.R. Murlidharan & Ors

RESPONDENT: Swami Dharamanda Theertha Padar & Ors

DATE OF JUDGMENT: 10/03/2006

BENCH: P.K. BALASUBRAMANYAN

JUDGMENT: J U D G M E N T  ( @ SPECIAL LEAVE PETITION (CIVIL) NO. 22268 OF 2004)

P.K. BALASUBRAMANYAN, J.

1.              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.   

2.              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.   

3.              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

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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.

4.              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.

5.              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 .