IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 30500 of 2008(E)
1. MYTHEEN KANNU, S/O.SHAHUL HAMEED,
... Petitioner
Vs
1. COMMISSIONER OF POLICE, TRIVANDRUM.
... Respondent
2. SUB INSPECTOR OF POLICE, VIZHINJAM
3. SHAJAHAN, MYTHRA MANZIL, VIZHINJAM,
For Petitioner :SRI.M.R.SARIN
For Respondent :SRI.G.S.REGHUNATH
The Hon'ble MR. Justice K.BALAKRISHNAN NAIR
The Hon'ble MR. Justice P.N.RAVINDRAN
Dated :11/11/2008
O R D E R
K. BALAKRISHNAN NAIR & M.C.HARI RANI, JJ.
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W.P.(C) No.30500 OF 2008
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Dated this the 11th day of November, 2008
J U D G M E N T
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Balakrishnan Nair, J.
The petitioner’s wife is the owner of a two storied building
constructed in 1.77 Ares of land in Re-survey No.197/5 and
197/5-1 of Vizhinjam Village. Mortgaging the said property, the
petitioner has availed a loan of Rs.6,00,000/- from the State
Bank of Travancore, Vizhinjam Branch. The 3rd respondent is a
money lender by profession. The petitioner borrowed
Rs.3,00,000/- from him on 30.10.2007. As a security for the
same, he has given certain signed blank papers including stamp
papers. The petitioner was to repay the amount in monthly
installments of Rs.15,000/- per month. The petitioner was
conducting a hotel in a portion of the building. Since he was
laid up with illness, he was unable to pay the amount.
Therefore, the hotel was handed over to the 3rd respondent, on
condition that he will pay a monthly rent of Rs.5,000/- to the
petitioner. The petitioner later came to notice that the 3rd
respondent is not running the hotel and therefore he requested
W.P.(C) No.30500/2008 2
to hand over the hotel on payment of the three defaulted monthly
installments. But, he was told by the 3rd respondent that the said
respondent will get the property in his name some how or other.
Later, the petitioner was served with Ext.P1, a copy of the caveat
notice filed before the Sub Court, Neyyattinkara. A reading of
Ext.P1 would show that according to the 3rd respondent, the
aforementioned property is subject to a sale agreement
executed by the petitioner’s wife in favour of the said
respondent. On receipt of Ext.P1, he realised that the signed
blank stamp papers obtained from the petitioner were used by
the 3rd respondent to forge the agreement for sale. So, the
petitioner filed Ext.P2 complaint before the 2nd respondent
praying to take action against the 3rd respondent for the offence
under Section 468 of I.P.C. Since the 2nd respondent did not
take any effective action, the petitioner filed a private complaint
before the Judicial First Class Magistrate II, Neyyattinkara,
alleging offences under Sections 323, 324, 463, 506 and 34 of
I.P.C. The Magistrate after holding the necessary enquiry has
issued summons to the 3rd respondent, it is submitted. As a
counter blast, the 3rd respondent has filed a petition before the
W.P.(C) No.30500/2008 3
police and a crime has been registered against him as per Ext.P4
F.I.R. alleging the offence punishable under Section 420 IPC.
While so, on 22.9.2008 at about 9.30 p.m. the 3rd respondent
along with some local muscle men came to the petitioner’s
house, where the petitioner was residing and tried to remove its
lock. He and his wife and children were manhandled by the 3rd
respondent and his supporters. They were abused with obscene
words and the assailants threatened to kill them also. Since the
petitioner’s wife and son sustained injuries, they were admitted
in the Primary Health Centre, Vizhinjam. As the police did not
take any action, the 3rd respondent again came to the house of
the petitioner on the morning of 26.9.2008 and manhandled his
son-in-law. Immediately, the petitioner filed a representation
before the 1st and 2nd respondents on 26.9.2008 seeking
necessary police protection. Those complaints are produced as
Exts.P5 and P6. Alleging that the police did not take any action,
this writ petition is filed.
2. The 3rd respondent has filed a counter affidavit stating
that the petitioner’s wife executed an agreement for sale of the
W.P.(C) No.30500/2008 4
aforementioned property for a total consideration of
Rs.26,00,000/-. Ext.R3(a) is the copy of the said agreement. He
has already paid Rs.18,00,000/- towards sale consideration.
Additional amounts were also paid subsequently, and now the
total amount paid will come to Rs.22,87,000/-. In view of the
substantial amounts received, the petitioner’s wife handed over
the possession of the main shop room of the building to the 3rd
respondent, where the hotel is run by him. Since the petitioner
and his wife failed to execute the sale deed as requested by the
3rd respondent, the said respondent has filed O.S.No.189/2008
before the Sub Court, Neyyattinkara, seeking specific
performance. The 3rd respondent denies all the allegations of the
petitioner. In fact, it was the petitioner and his family members
who manhandled the 3rd respondent. The same will be evident
from the crime registered as Ext.R3(e). Therefore, the 3rd
respondent prays for dismissal of the writ petition.
3. The learned Government Pleader, upon instructions,
submitted that the dispute between the parties is a civil dispute.
The petitioner is working in the police canteen and therefore
W.P.(C) No.30500/2008 5
there is no question of any threat to his life. The building is very
close to the Vizhinjam Police Station and the police is keeping
surveillance in that area.
4. Having regard to the nature of the allegations and
counter allegations between the parties, we think this Court is
not justified in ordering any protection to one side or the other
invoking our jurisdiction under Article 226 of the Constitution of
India. The petitioner may invoke the ordinary remedies available
to him under law by moving the competent civil court or criminal
court, as the case may be.
Accordingly, this writ petition is dismissed, without
prejudice to the contentions of the petitioner and his right to
move other forums for appropriate reliefs.
(K.BALAKRISHNAN NAIR, JUDGE)
(M.C.HARI RANI, JUDGE)
ps