Keki P Irani vs State Of Telangana

This Writ Petition, under Article 226 of the Constitution of India, is filed by the petitioners, seeking the following relief:

“….to issue a writ order or direction more particularly in the nature of a Writ of Mandamus declaring the action of the respondents 3 to 6 of the concerned PS interfering in civil disputes pending before competent civil court between the Petitioner and the Respondent No.7 under the influence of Respondent No.6 as illegal, arbitrary, ultra vires and violative of the petitioners constitutionally guaranteed rights, besides constituting contumacious interference with the course of justice restrain them from the same.…”

The petitioner No.1 claims to be running a function hall in the premises of respondent No.7. It is stated that there are three civil suits i.e, O.S.No.1243 of 2021, O.S.No.21 of 2022 and O.S.No.115 of 2022, pending between the petitioner No.1 and respondent No.7. The suit in O.S.No.115 of 2022 is filed by respondent No.7 against the petitioner No.1 for recovery of amount as rent/mesne profits/damages upto June, 2022. It is averred that the respondent No.7 has managed the respondent Nos.3 and 4 and with their active connivance broke open the locks of respondent No.7-club, which is in occupation of the petitioners. It is stated that petitioners have taken photos and videos of highhanded action of the respondents-police and the petitioner No.1 also lodged a complaint on the file of D.G.P. It is further stated that all the belongings of the petitioners are in the premises of respondent No.7 and the same would establish their possession. It is further stated that petitioner No.1 filed an application in O.S.No.21 of 2022 on the file of III Senior Civil Judge, City Civil Court, Secunderabad, seeking appointment of an Advocate Commissioner to take his inventory/material lying in the function hall but the said application was rejected on the ground that the petitioner has not furnished details of inventory items. The respondent No.7-club held a meeting on 16.04.2023 which was reported in newspaper and the same establishes that the petitioners are in possession of the function hall. It is the case of the petitioners is that respondent No.7 and its members with the assistance of respondent-police are frequently interfering with the peaceful possession of the petitioners over the premises of respondent No.7-club and the respondents-police are not having any power or authority to interfere with the civil disputes between the petitioners and respondent No.7 in any manner. It is further case of the petitioners that with the connivance of respondent Nos.3 and 4, the respondent No.7 is making efforts to take forcible possession without following the procedure prescribed under law, which action on the part of respondents amounts to violation of principles of natural justice and Article 21 of the Constitution of India.

The respondent No.7 being the contesting party, has filed a detailed counter affidavit, wherein inter alia it is stated that the petitioner No.1 is a habitual litigant and to occupy the premises of the respondent No.7-club, petitioner No.1 instituted numerous litigations from 2015 onwards, falsely claiming to be a tenant, despite various Courts repeatedly held that the Petitioner No.1 is not a tenant of the premises of respondent No.7. It is further stated that even though the Petitioners failed to obtain any favourable orders from Civil Courts, with an ulterior motive used the legal process to continue their business at the property of the Respondent No.7 and earning huge sums by conducting third party functions detrimental to the interest of the respondent No.7. It is further stated that respondent No.7-club has instituted a suit vide O.S.No.21 of 2022 on the file of III Senior Civil Judge, City Civil Court, Secunderabad, wherein the said Court vide order dated 07.02.2022 in I.A.No.113 of 2022 granted ad interim injunction restraining the petitioner No.1 herein from interfering with the schedule property in any manner and after final adjudication of the said I.A, vide order dated 07.02.2023, interim injunction order was made absolute. Thereafter, the respondent No.7 filed an application vide I.A.No.942/2022 in I.A.No.113/2022 in O.S.No.21 of 2022 under order XXXIX Rule 2A of CPC seeking attachment of bank account of petitioner No.1 herein and to punish him by sending him to civil prison for a period of three months for willful disobedience of the injunction order passed in I.A.No.113/2022. Vide order dated 22.11.2022, the said I.A.No.942/2022 was allowed and the petitioner No.1 was ordered to be sent to civil imprisonment for a period of two months. Challenging the same, the petitioner No.1 filed Civil Miscellaneous Appeal No.587/2022 on the file of this Court and the said appeal was dismissed by this Court confirming the order dated 22.11.2022 passed by the Court below. It is further stated that on the similar pleadings and seeking similar relief, earlier, the Petitioner No.1 filed Writ Petition No.11527 of 2022 and this Court vide order dated 20.04.2022 disposed of the said Writ Petition. Therefore, the present writ petition filed by the petitioners seeking similar relief is untenable and barred by principle of constructive res judicata. It is further stated that the principle of constructive res judicata is applicable even in writ proceedings and therefore, the present Writ Petition is not maintainable and liable to be dismissed. It is further stated that the respondent No.7 is a Club belonging to the minority Zoroastrian community of Hyderabad and Secunderabad, established in 1915, registered as a society under the Societies Act vide Registration No.31 of 1954. Its objective is to promote cultural, social and religious activities amongst its members, provide sporting and character-building amenities to a miniscule community with a population of only about 1000 people in the Twin cities. For raising finances for welfare of its members, respondent No.7 decided to permit third parties to use a portion (Mandapam) of the Club premises at 1-8-183 to 185, Sardar Patel Road, Secunderabad by conducting third party functions. It is further stated that the petitioner No.1 having failed to adhere to the terms and conditions, has filed a suit vide O.S. No. 433 of 2015 on the file of I Junior Civil Judge, City Civil Court, Secunderabad on 11.08.2015 against the Respondent No.7-club, its President & others and initially, he obtained an ad interim ex-parte order of status quo in his favour. However, by a detailed order dated 16.11.2015 the interim order of status quo was vacated, and the Court held that the Petitioner No.1 is no way concerned with the premises of the Respondent No.7. Aggrieved by the aforesaid Order, the Petitioner No.1 filed C.M.A.No.55 of 2015 on the file of I Addl. Chief Judge, City Civil Court, Secunderabad. After contest, on 18.01.2016, the interim Order was vacated by I Addl. Chief Judge, City Civil Court, Secunderabad. Despite two successive failures, the Petitioner No.1 dishonestly attempting to obtain injunction against the Respondent No.7 and approached this Court by filing C.R.P. No.810 of 2016. This Court vide order dated 20.06.2016 disposed of the Revision Petition and directed the Additional Chief Judge to dispose of the C.M.A. on merits within 2 months. The C.M.A. was heard and dismissed by the Additional Chief Judge, Secunderabad on 16.11.2016 confirming the order passed by the trial Court. As the Trial and Appellate Courts unequivocally held that Petitioner No.1 was not in possession of the Club premises, the Petitioner No.1 approached the Respondent No.7 for a compromise. As per regulations of the Club, the proposed Memo of Compromise was placed before an Extraordinary General Body Meeting (EGM) for its approval and the same was rejected and the petitioner was directed to remove all his belongings but he refused to do so. The petitioner No.1 having not digested the decision taken by the Managing Committee, made attempts to lock the premises with the help of anti-social elements, which necessitated the respondent No.7 to lodge a complaint and the same was registered as a case in Crime No.241/2017 for the offences under Sections 509, 506 r/w 34 IPC. It is further stated that suppressing the said facts, on 21.09.2017, the Petitioner No.1 filed another suit vide O.S. No.162 of 2017 on the file of XXVII Additional Chief Judge, City Civil Court, Secunderabad, seeking to enforce the proposed Memo of Compromise. Having come to know about the said suit, respondent No.7 filed an application under Order VII Rule 11 of CPC for rejection of plaint and on 01.08.2019, the petitioner No.1 withdrew the said suit as not pressed. It is further stated that to keep the litigation alive, the petitioner No.1 with a malafide intention has filed Transfer O.P No. 2696 of 2017 seeking transfer of O.S.No.433 of 2015 on the file of I Junior Civil Judge, City Civil Court, Secunderabad to XXVII Additional Chief Judge, City Civil Court, Secunderabad where the suit for specific performance in O.S.No.162 of 2017 is filed. The said Transfer O.P was dismissed vide order dated 31.8.2018. The petitioner No.1 without vacating the premises has instituted a suit vide O.S.No.104 of 2019 on the file of XII Additional Chief Judge, City Civil Court, Secunderabad and subsequently, he withdrew the said suit as not pressed. Thereafter, the petitioner No.1 filed another suit vide O.S.No.1243 of 2021 seeking injunction against the respondent No.7. When the petitioner No.1 did not take his belongings, the respondent No.7 was constrained to lodge a complaint dated 08.01.2022. It is further stated that the petitioner No.1 on one pretext or other to protract the litigation with malafide intention and abusing the process of law, has instituted suits and writ petitions on the file of this Court on one or other ground and even after dismissal of the said cases, the petitioner No.1 is interfering with the activities of the respondent No.7-club. Thus the petitioner No.1 is not entitled for any relief and the writ petition is devoid of merits and liable to be dismissed.

The respondent No.3 also filed counter affidavit wherein inter alia it is stated that the respondent No.7 made 100 dial call on 11.03.2023 at 12:34 pm., and pursuant to the same, the patrolling staff as well as the respondent No.3 and his staff visited the site and observed that some persons were quarrelling and also observed some iron objects, hammer, etc., and the staff of respondent No.3 took the said objects to prevent any untoward incident and suggested all of them not to create law and order problem and also suggested them to approach competent court for their grievance. It is further stated that at that time the petitioners took photographs and video showing the said iron objects in the hands of Staff of the Respondent No.3 and intentionally filed the same along with this writ petition, alleging that the respondent No.3 and his staff interfered with the civil disputes. The respondent No.3 further stated that the respondent No.7 lodged a complaint with the respondent No.3 on 11.03.2023 against the petitioners herein and one J.T. Kiran Kumar regarding trespass for wrongful restraint, voluntarily causing hurt and threatening the complainant. Basing on the said complaint, a case in Crime No.45 of 2023 dated 11.03.2023 was registered for the offences under Sections 452, 323, 506 r/w 34 of IPC against the petitioners herein and J.T. Kiran Kumar (A-1 to A-4). During the course of investigation three witnesses were examined and their detailed statements were recorded. Meanwhile Accused Nos.2 to 4 obtained conditional anticipatory bail from the Court of Special Judge for Trial of offences under SCs & STs (POA) Act-Cum-VI Addl. Metropolitan Sessions Judge, Secunderabad vide Crl.M.P.No. 1381/2023 Dated: 24.04.2023. It is further stated that the petitioner No.1/A.1 was arrested on 13.04.2023 by following due procedure and sent him for judicial remand. The petitioner No.1/A.1 voluntarily admitted to have committed the offence along with other Accused Nos.2 to 4. During the course of investigation, it came to light that the Petitioner/A.1 was involved in Cr.No.238/2022 for the offences under Sections 448, 427, 506 r/w 34 IPC and the case is under trail vide CC No.662/2023 on the file of XXII Additional Chief Metropolitan Magistrate Court, Secunderabad. It is further stated that after completion of investigation in Crime No.45/2023, charge sheet was filed on 15.06.2023 on the file of the XXII Addl. Chief Metropolitan Magistrate at Secunderabad and numbered as C.C. No.1144/2023, dated 27.06.2023. While the matter stood thus, petitioner No.1 herein lodged a complaint with the respondent No.3 on 11.03.2023, wherein it is stated that, respondent No.7 and its members manhandled him with stick due to which his right hand little finger received injury, and his niece was also assaulted by Danish and Yohan Mistry, for which she received bruised injury on her left chest and her hand was also twisted. Basing on the said complaint, a case in Crime No.46 of 2023 dated 11.03.2023 was registered for the offence under Section 324 r/w 34 of IPC against one Dhanji Mistry and others. During the course of investigation, two witnesses were examined and their detailed statements were recorded and notices under Section 41-A Cr.P.C., were served to A.1 to A.3 on 31.05.2023. The investigating officer obtained MLC vide No.65 Dated: 11.03.2023 and the Doctor opined that the injuries are "Simple in Nature". After completion of investigation, on 15.06.2023 charge sheet was filed on the file of XXII Addl. Chief Metropolitan Magistrate at Secunderabad and numbered as C.C.No.1256/2023. The respondent No.3 while denying the contentions of the petitioners herein has categorically stated that there are cases and counter cases registered against the petitioners and respondent No.7 and only to prevent disturbance to law and order, the police have inspected the scene of offence on 11.03.2023 and ultimately prayed to dismiss the writ petition.

This Court considered the rival submissions of the respective counsel and perused the record.

The case of the petitioners is that they are running a functional hall in the premises of the respondent No.7-club and the respondents-police at the instigation of respondent No.7 are interfering with the civil disputes pending between the petitioners and respondent No.7. The petitioners have not filed any document i.e., either tenancy agreement or lease deed to show that they are tenants or lessees over the property of the respondent No.7. Except stating that they are authorized by the respondent No.7 to enjoy the property of the respondent No.7, no document has been filed. To substantiate their contentions, petitioners only relied upon the cases filed before the Civil Courts. Admittedly, the petitioner No.1 filed a suit vide O.S.No.1243/2021 and interim injunction sought by him in the said suit was refused. The respondent No.7 filed a suit vide O.S.No.21 of 2022 on the file of III Senior Civil Judge, City Civil Court, Secunderabad, wherein the said Court granted interim injunction in favour of respondent No.7 restraining the petitioner No.1 herein from interfering with the schedule property in any manner. The petitioner No.1 filed an appeal and the said appeal was dismissed. In none of the cases filed by the petitioner No.1, interim injunction was not granted in his favour and some of the cases filed by him were dismissed as not pressed. The case projected by the petitioners before this Court is that the police are interfering with their possession illegally and the said action of the police amounts to interference with the civil disputes pending between the petitioners and respondent No.7.

It is the case of the respondent No.7 that petitioners are not in possession of the subject property and the competent Civil Court has rightly refused to grant any injunction in favour of the petitioner No.1 but still the petitioner No.1 with the help of anti-social elements is trying to take forcible possession of the premises of the respondent No.7-club. The respondent No.7 lodged various police complaints against the petitioner No.1 and after conducting investigation, charge sheets have been filed before the Courts concerned and they are pending for trial. It is further case of respondent No.7 that earlier, on the same set of allegations, the petitioner No.1 has filed Writ Petition No.11527 of 2022 on the file of this Court seeking similar relief, which reads as follows:

“…to issue a writ order or direction more particularly one in the nature of Writ of Mandamus declaring the action of the Respondents Police (a)in interfering in civil disputes and pressurizing the petitioner to enter in to a settlement with the Sixth Respondent (b) in calling the petitioner to the office of the Deputy Commissioner Central Zone/Police Station and detaining him without there being any Crime/FIR registered (c) In threatening to open a Rowdy Sheet contrary to the rules contained in the police Manual / Standing Orders as illegal unlawful arbitrary without jurisdiction vitiated by bias violative of Articles 14 19(1)(g), 21 and 300A of the Constitution of India and consequently direct the Respondent Police not to interfere in civil disputes not to call the petitioner to the police station and not to open any rowdy sheet and pressurize the petitioner for settlement with the Sixth Respondent and pass”

In the said Writ Petition, a learned Judge of this Court after considering the rival submissions of both parties and duly taking note of the checkered history and in view of the submissions made by the learned Assistant Government Pleader that they are not interfering with the civil disputes pending between the parties, disposed of the said Writ Petition No.11527 of 2022.

This Court has carefully examined the relief sought in the said W.P.No.11527 of 2022 as well as the relief sought in the present writ petition, pleadings, contentions raised herein and the documents relied upon by the respective parties. The present writ petition is filed on the similar set of allegations as that of W.P.No.11527 of 2022. There is a force in the submission of the learned counsel for the respondent No.7 that even though the present writ petition is not barred by res judicata but the same is barred by constructive res judicata. On keen examination of the record, this Court is of the prima facie view that the petitioners with an intention to protract the litigation on one pretext or other and having failed to obtain injunction orders from the competent Civil Court are making efforts to foist cases against the respondent No.7 and keeping such motive, the petitioner No.1 filed a W.P.No.11527 of 2022 alleging that the police are interfering with his possession and even after disposal of the said Writ Petition by this Court, the petitioner No.1 along with his brother and nephew, filed the present Writ Petition on the same set of allegations.

As per counter affidavit filed by respondent No.3, they have received 100 dial call from respondent No.7 and immediately they inspected the scene of offence on 11.03.2023 at 12:43PM and found some iron objects and hammer etc., and to prevent any untoward incident, the staff of respondent No.3 took those objects and suggested the parties to resolve their disputes before the competent Court. The said action on the part of respondents-police does not amount to interfering with the civil disputes. The police are duty bound to protect law and order and also peace and tranquility. On receipt of credible information that there is a law and order problem, the police has the power to inspect the place. Therefore, there is nothing wrong on the part of respondents-police in taking away the objectionable objects from the scene of offence. Further, the petitioners, without there being any injunction order in their favour, cannot contend that respondent No.7 is interfering with their possession over the schedule premises belonging to respondent No.7-club. It is the duty of the respondents-police to protect law and order and to give protection to the persons who obtain orders from the competent Civil Court.

In view of the above facts and circumstances of the case and since various civil suits and criminal cases are pending between the parties before the various Courts, this Court is not inclined to entertain the present writ petition. Therefore, the present writ petition is devoid of merits and liable to be dismissed.

Accordingly, this Writ Petition is dismissed with costs of Rs.10,000/- (Rupees Ten Thousand only) payable by the petitioners to the Telangana State Legal Services Authority, Hyderabad, within a period of four(4) weeks from today. It is made clear that any observations made in this order shall not have any bearing over the cases pending between the parties before the various Courts, which in turn shall dispose of the said cases on their own merits, in accordance with law.

Miscellaneous Petitions, if any, pending in this writ petition shall stand closed.