Mr. Manish Sood vs Ms. Vandana Bhardwaj
2008 Latest Caselaw 1264 Del

*                      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