Karnataka High Court

Fortis Hospitals Limited vs Mr. Vimal Chordia on 3 July, 2024

Author: Ravi V Hosmani

Bench: Ravi V Hosmani

                                              -1-
                                                            NC: 2024:KHC:24966
                                                         MFA No. 4177 of 2024




                      IN THE HIGH COURT OF KARNATAKA AT BENGALURU
                           DATED THIS THE 3RD DAY OF JULY, 2024
                                            BEFORE
                         THE HON'BLE MR JUSTICE RAVI V HOSMANI
                 MISCELLANEOUS FIRST APPEAL NO.4177 OF 2024 (CPC)
                 BETWEEN:
                       FORTIS HOSPITALS LIMITED,
                       COMPANY INCORPORATED UNDER THE
                       COMPANIES ACT 1956, HAVING ITS
                       REGISTERED OFFICE AT ESCORTS HEART
                       INSTITUTE AND RESEARCH CENTRE,
                       OKHLA ROAD, NEW DELHI - 110 025.
                       HAVING ITS BRANCH HOSPITAL AT
                       SHERIFF CHAMBERS, NO.14,
                       CUNNINGHAM ROAD, BANGALORE - 560 052.
                       REP. BY ITS FACILITY DIRECTOR,
                       MR. CHANDRASHEKAR R.
                                                                   ...APPELLANT
                 (BY SRI DHYAN CHINNAPPA, SR. COUNSEL FOR
                     SRI RAVI SHANKAR R., ADVOCATE)
                 AND:
                 1.    MR. VIMAL CHORDIA,
                       S/O MR. S. PUKHRAJ,
                       AGED ABOUT 55 YEARS,
                       HAVING ADDRESS AT M-1,
                       SHERIFF CHAMBERS,
                       NO.14, CUNNINGHAM ROAD,
Digitally signed by
GEETHAKUMARI           BANGALORE-560 052.
PARLATTAYA S 2.        MRS. SHANTA DEVI,
Location: High         PROPRIETRIX OF M/S. REGENCY,
Court of Karnataka
                       W/O MR. S. PUKHRAJ, MAJOR,
                       HAVING ADDRESS AT M-1,
                       SHERIFF CHAMBERS,
                       NO.14, CUNNINGHAM ROAD,
                       BANGALORE - 560 052.
                                                               ...RESPONDENTS
                 (BY SRI RAJADITYA SADASIVAN, ADVOCATE FOR C/R1)
                      THIS MFA IS FILED U/O.43 RULE 1(r) OF THE CPC, AGAINST
                 THE ORDER DATED 24.06.2024 PASSED ON I.A.NOS.1 AND 3 IN
                 O.S.NO.375/2024 ON THE FILE OF THE XVI ADDITIONAL CITY CIVIL
                 AND SESSIONS JUDGE, BENGALURU, (CCH-12), REJECTING I.A.NO.1
                                   -2-
                                                    NC: 2024:KHC:24966
                                                MFA No. 4177 of 2024




FILED U/O.39 RULE 1 AND 2 R/W SEC.151 OF CPC, REJECTING
I.A.NO.3 FILED U/O.39 RULES 1 AND 2 R/W SEC.39 RULES 1 AND 2
R/W ORDER XXVI RULE 9 AND 10B R/W SEC.151 OF CPC.

    THIS APPEAL, COMING ON FOR ORDERS, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:

                             JUDGMENT

Challenging order dated 24.06.2024 passed by XVI Addl.

City Civil and Sessions Judge (CCH-12), Bengaluru in

O.S.no.375/2024 on I.As.no.1 and 3 filed under Order XXXIX

Rules 1 and 2 read with Section 151 of Code of Civil Procedure,

1908 ('CPC' for short), this appeal is filed.

2. Sri Dhyan Chinnappa, learned Senior Counsel

appearing for Sri Ravi Shankar R., learned counsel for appellant

submitted that appellant was plaintiff in suit filed for permanent

injunction. In said suit, I.A.no.1 was filed for order of

temporary injunction to restrain defendant no.1 and his agents,

representatives, third parties or anyone claiming through and

under him etc. from in any manner interfering with entry to

peaceful access and peaceful unhindered use of suit schedule

'B' property or any portion thereof. While I.A.no.3 was filed for

order of temporary injunction to restrain defendant no.1 and

his agents, representatives, third parties or anyone claiming

through and under him etc. or a Commissioner duly appointed

NC: 2024:KHC:24966

by this Court to open/break lock placed on gate to access way

and also to remove hoardings and any other obstructions

placed in suit schedule 'B' property common areas which forms

part of large suit schedule 'A' property. It was submitted, under

order impugned, trial Court rejected applications on wholly

untenable reasons, without proper consideration. Aggrieved

thereby, present appeal was filed.

3. It was submitted, plaintiff was running hospital in a

building known as Sheriff Chambers, situated at Cunningham

Road, Bengaluru. Said building was having several tenements,

wherein plaintiff was occupying entire extent except Unit no.M1

measuring 795 sq.ft of Mezzanine floor owned by defendant

no.2. It was submitted, plaintiff and defendants were only two

occupiers of building. It was stated that on several occasions

there were negotiation between plaintiff and defendant no.2 for

purchase of Unit no.M1 but, negotiation did not go through. It

was submitted, there were also earlier suits and several other

legal proceedings between parties.

4. It was submitted, while plaintiff was running 119

bedded Tertiary Care Hospital, on 09.01.2024, defendant no.1

suddenly locked gate of suit schedule 'B' property, removed

NC: 2024:KHC:24966

ramp connecting access to lift lobby and installed hoarding

completely covering area from floor to roof effectively

preventing plaintiff's access to lift. It was submitted,

defendants with help of third parties installed statue of

Dr.B.R.Ambedkar along with temporary structure on footpath

abutting building on main road. Attempts by plaintiff for

removal of obstruction by approaching authorities failed and

there were threats about cases being filed under Scheduled

Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989

against staff of plaintiff. It was submitted, when

representations filed by plaintiff before BBMP, BMTF,

Commissioner of Police etc. also did not yield any result, suit

was filed.

5. It was submitted, trial Court had initially granted

ex-parte ad-interim injunction on I.A.no.1 as follows:

"Plaintiff shall comply under Order XXXIX rule 3-A of CPC.

Issue ad-interim ex-parte Temporary Injunction restraining the defendant no.1 and his agents from in any manner interfering with the entry to, peaceful access and peaceful unhindered use of suit schedule B property by the plaintiff till 22.01.2024.

Issue suit summons, I.A. Notice of I.A.no.1, Temporary Injunction order to the defendants and emergent notice on I.A.no.3, only if PF is paid,

NC: 2024:KHC:24966

along with sufficient copies of plaint, IA and documents, returnable by 22.01.2024."

6. It was submitted, plaintiff had made clear

averments about manner in which defendants had caused

obstruction to plaintiff's activities but, trial Court without proper

appreciation and without detailed discussion or by assigning

proper reasons, passed order impugned on cursory conclusion

and therefore, sought for allowing appeal and grant for

injunction against defendants.

7. On other hand, Sri Rajadithya Sadasivan, learned

counsel for caveator/respondents sought to oppose appeal. It

was vehemently argued that present suit by plaintiff was

second suit. Plaintiff had earlier filed O.S.no.2788/2010 against

defendants and having failed to secure order of temporary

injunction therein and with intent of forcing defendants to sell

away their portion of premises to plaintiff on its terms had filed

suit. It was also contended that plaintiff being in violation of

several aspects such as blockage, misutilization and over

utilization of common areas had not approach Court with clean

hands and therefore, trial Court was justified in rejecting

injunction sought for.

NC: 2024:KHC:24966

8. It was submitted, plaintiff had also failed to

establish any cause of action against defendants. Referring to

specific assertion in paragraphs no.24 and 34 of written

statement filed, it was contended, defendants had

unequivocally denied having put up hoarding or having any

knowledge about persons who had put up hoarding. It was also

stated that there were no obstruction by defendants or any

persons associated or claiming through them. Under such

circumstances, observations by trial Court that plaintiff's

assertions would require trial did not call for interference.

9. It was also submitted, trial Court had taken note of

defective applications as multiple reliefs were sought, which

were not rectified. It was further contended, insofar as prayer-2

on I.A.no.3 i.e. for appointment of Court Commissioner, order

of temporary injunction would not be amenable to appeal and

writ petition would require to be filed. Reference was made to

paragraphs no.43, 48, 51, 52, 54 as well as 56 of impugned

order to contend that trial Court had offered sufficient reasons

for its conclusion. Thus, on above submissions, learned counsel

sought dismissal of appeal.

NC: 2024:KHC:24966

10. Heard learned counsel and perused impugned

order.

11. From above, it is seen main grounds for challenge

against order impugned are failure to consider material on

record, lack of adequate reasons and arriving at conclusions

without proper basis. Therefore, point that would arise for

consideration is:

"Whether order impugned suffers from untenability and calls for interference?"

12. Perusal of impugned order reveals that trial Court

adverted to pleadings and documents of respective parties.

Though, there is almost judicious reference to documents of

both parties, insofar as reasons some semblance of conclusions

can be noted from paragraph no.49, wherein trial Court notes

about e-mail dated 07.02.2009 marked as Ex.P32 in previous

case as indicating nuisance, dumping garbage,

bio-medical waste and abuse of common area etc. In paragraph

no.51, it records plaintiff failed to make out prima facie case,

while in paragraph no.52 it observes that plaintiff was having

alternative way for ingress and egress and in paragraph no.54,

it takes note of decision cited regarding suppression of material

fact. Insofar as applications with multiple prayers as defective,

NC: 2024:KHC:24966

it is seen that trial Court in paragraph no.25 as stated that

dismissal on said ground would not be warranted.

13. In paragraph no.56 reason for rejection of I.A.no.3

is stated to be its conclusion on I.A.no.1 that plaintiff had failed

to make out prima facie case. For arriving at such conclusion, it

refers to incidents that appear to be subject matter of

O.S.no.2788/2010. There is no consideration of averments and

assertion insofar as cause of action about events that occurred

on 09.01.2024 and thereafter. Except said observations, there

are no other reasons to support its conclusion. As such, order

impugned would be untenable.

14. At this stage, it would be useful to refer specific

assertions by defendants in paragraphs no.24 and 34 of written

statement which reads as follows:

"24. The averments made in para 17 of the plaint are false. There is no ramp connecting the lift lobby to the basement. There were steps originally constructed from the basement lift lobby to the parking bay. The plaintiff, in order to unlawfully use the lift as service and patient lift, unlawfully created a ramp for movement of their stretchers, hospital waste, large trolleys and wheeled bins. The hoarding alleged by the plaintiff is not of these defendants. These defendants do not know of any hoarding mentioned in the plaint. The picture of the hoarding as produced by the plaintiff would show

NC: 2024:KHC:24966

that the hoarding has no connection with the business of these defendants.

34. No obstructions were put up by these defendants or any person associate or claiming under these defendants. No threat as mentioned in para 28 of the plaint was made by the defendants or any person claiming under the defendants. Consequently, there is no cause of action and no relief can be granted."

15. In light of specific assertions by defendants, trial

Court ought to have examined whether plaintiff made out case

of obstruction by defendants. Strangely, there is no discussion

about same. Reference to events and material which were

subject matter of earlier suit for denying injunction which

apparently is on a subsequent cause of action would be

erroneous and contrary to settled legal principles. Hence, order

impugned would call for interference. Thus, point for

consideration is answered partly in affirmative. Consequently,

following:

ORDER

i. Appeal is allowed in part.

ii. Impugned order dated 24.06.2024 passed by XVI Addl. City Civil and Sessions Judge (CCH-12), Bengaluru in O.S.no.375/2024 on I.As.no.1 and 3 filed under Order XXXIX Rules 1 and 2 read with Section 151 of CPC is set aside.

- 10 -

NC: 2024:KHC:24966

iii. In light of observations made above, matter is remitted back to trial Court for fresh consideration of I.As.no.1 and 3, by keeping open all contentions of both parties. Trial Court shall pass orders afresh on I.As.no.1 and 3 within a period of two weeks from date of receipt of certified of this order.

iv. For said purposes, parties would be at liberty to seek for advancement of matter.



       v.     Both parties are directed to co-operate for
              early      disposal   of   suit   without   seeking
              unnecessary adjournments.


       vi.    Ad-interim       injunction/order     granted   on