* HIGH COURT OF DELHI : NEW DELHI
Judgment reserved on: July 31, 2008
Judgment delivered on : August 7, 2008
+ R.F. A. No. 189/2008
Mr. Manish Sood .... Appellant
Through: Mr. Kishore M. Gajaria with
Mr.Sushant Sharma, Advocate
versus
Ms. Vandana Bhardwaj ... Respondent
Through: Mr. S. Sirish Kumar, Advocate
CORAM:
HON'BLE MR. JUSTICE T.S. THAKUR
HON'BLE MR. JUSTICE SUNIL GAUR
1. Whether the Reporters of local papers may
be allowed to see the judgment?
2. To be referred to Reporter or not?
3. Whether the judgment should be reported
in the Digest?
SUNIL GAUR, J.
1. Appellant‟s suit for declaration, injunction and damages has been thrown out by the Trial Court at its threshold by holding that it lacks "cause of action". Impugned order dated 4th March 2008 has been passed on Respondent‟s application under Order VII Rule 11 of CPC.
2. Both the parties to the suit are Medical Practitioners in their respective areas, who are treating patients fighting with problem of deformity of the limbs and locomotive disorders, i.e., they are R.F. A. No. 189/2008 Page 1 working in two complimentary branches in the same field of medical world. Appellant is a registered rehabilitation professional and the Respondent is a physiotherapist and head of the department of physiotherapy in Rajiv Gandhi Cancer Hospital and Research Center, New Delhi. The declaration sought by the Appellant is quite peculiar one. Declaration sought is that action of the Respondent in interfering with the work of the Appellant is illegal and an injunction has been sought by the Appellant / plaintiff to restrain the Respondent / defendant from interfering or creating any kind of impediment in the work and practice of the Appellant. Not only this, an injunction has also been sought by the Appellant against the Respondent to refrain from practicing in the medical field of the Appellant, either directly or indirectly. A decree of damages of Rupees Three Lakhs against the Respondent has been sought for loss of business of the Appellant.
3. The allegation of the Appellant is that the Respondent is interfering with the work of the Appellant and is creating impediment in the discharge of his professional duties. The precise case of the Appellant / plaintiff is that the Respondent is meddling with the work of the Appellant and had made numerous attempts to force the Appellant to fit the patients with limbs which she assumed to be proper for the patients.
4. The grievance of the Appellant is that the Respondent tries to R.F. A. No. 189/2008 Page 2 impose her ideas and instructions upon the Appellant which will have undesired result of making the patient suffer immensely. The stand of the Appellant is that because of high handed attitude of the Respondent, Appellant has stopped getting business from Rajiv Gandhi Cancer Hospital and Research Center, New Delhi, where Respondent is working as a Physiotherapist.
5. Aforesaid suit of the plaintiff/Appellant was resisted by the defendant/Respondent by filing an application under Order VII Rule 11 of CPC wherein it was contended that the plaintiff/Appellant was never an employee of Rajiv Gandhi Cancer Hospital and Research Center nor was having any contractual relation with the said hospital and therefore no legal right accrues to the Appellant and the suit of the Appellant lacks material and relevant facts and is hit by section 41(h), (i) and (j) of the Specific Relief Act and is barred under Section 34 of the Specific Relief Act.
6. Respondent claims that she cannot be made personally liable for her professional work being done by her as senior Physiotherapist in the above said Hospital as she has always acted within the scope of her professional duties and the Appellant had no locus standi to file a frivolous and vexatious suit against the Respondent.
7. Vide impugned order dated 4th March 2008, while allowing the application of the Respondent under Order VII Rule 11 of CPC, R.F. A. No. 189/2008 Page 3 Trial Court has held that even if it is assumed that the Respondent had interfered in the professional work of the Appellant, still it would not confer any legal right upon the Appellant to seek the relief prayed for in the suit. Thereafter, Trial Court has proceeded to observe that the Respondent has a right to hold her opinion regarding the nature of treatment to be given to the patients and there may be difference of opinion between the Appellant and Respondent (who are medical practitioners in their own fields), but this would not amount to interference of the Respondent in the professional work of the Appellant and therefore, such interference „per se' is not actionable. It has been found by the Trial Court that the relief sought by the Appellant lacks legal character and does not fall under the provision of Section 34 of the Specific Relief Act, 1963.
8. Upon hearing both the sides and on perusing the impugned order in the material on record, we find that no legal right of the Appellant has been infringed, giving any cause of action to the Appellant to file the strange suit like the present one. Appellant cannot be heard to say that his plaint has been rejected under Order VII Rule 11 CPC without giving him an opportunity to lead evidence to prove the averments made in the plaint. Until and unless, a legal right is infringed, no one can as a matter of right claim to proceed with a frivolous suit like the present one. A 'cause of action' has to be reasonable one and not a one which has no R.F. A. No. 189/2008 Page 4 remote chance of succeeding ultimately at the conclusion of the trial.
9. Discretion of the Court as to declaration of a right of a person has to be exercised on well settled principles. Court has to consider the nature of obligation in respect of which performance is sought, the conduct of the parties and the effect of the Court granting the decree of declaration of such a right. Court has to ascertain as to whether a substantial right exists or not. In case of American Express Bank vs. Calcutta Steel Company, (1993) 2 SCC 199, it has been reiterated that the grant or refusal of the relief of declaration and injunction under the provisions of section 34 of Specific Relief Act is discretionary and the plaintiff cannot claim the relief as of right. It has to be granted according to the sound principles of law.
10. During the course of the argument, learned counsel for Appellant was pointedly asked by us as to what legal right of the Appellant has been infringed and what tangible declaration is being sought but he could give the satisfactory answer. We of the considered view that the present suit has been instituted by the Appellant by taking frivolous pleas and with a view to harass the Respondent and the suit of the Appellant lacks substance and is without any tangible cause of action.
11. In the aforesaid view of the matter, we hold that the Trial R.F. A. No. 189/2008 Page 5 Court was well justified in allowing the application of the Respondent under Order VII Rule 11 of CPC and in dismissing the suit of the Appellant. We find no substance in the present appeal which we dismiss with costs of Rs.10,000/-.
SUNIL GAUR, J
T.S. THAKUR, J
August 7, 2008
PKB
R.F. A. No. 189/2008 Page 6