(In The Matter Of An Application ... vs Bhagaban Roul @ Raul
2023 Latest Caselaw 151 Ori

          IN THE HIGH COURT OF ORISSA AT CUTTACK
                           CMP No. 1178 OF 2022
            (In the matter of an application under Article 227 of the
                          Constitution of India, 1950)
                                     *****
          Pritirekha Mohanty @ Das               ....        Petitioner
                               Mr. Gautam Mishra, Senior Advocate
                          being assisted by Mr. D.K. Patra, Advocate
                                           -versus-
          Bhagaban Roul @ Raul                         .... Opp. Party
                                         Mr. Samir Kumar Mishra, Advocate

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                       Heard and disposed of on 04.01.2023
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                   CORAM:
                  JUSTICE K.R. MOHAPATRA
                                   JUDGMENT

1. This matter is taken up through hybrid mode.

2. Order dated 11th October, 2022 (Annexure-10) passed in F.A.O. No.59 of 2022 is under challenge in this CMP, whereby learned District Judge, Bhadrak disposed of the appeal with the following direction:

"Since Maa Tarini Clinic is continuing over the suit land as admitted by both the side, the appellant is only allowed for consultation by doctors to out-patient and no other activity can be carried out.

With the above observation the impugned order dated 07.09.2022 passed by the learned Civil Judge (Jr. Divn), Bhadrak in I.A. No.175 of 2022 is hereby set aside and the appeal is allowed to the above extent.

Accordingly, the F.A.O. is disposed of."

And thereby learned appellate Court partly confirmed the order dated 7th September, 2022 (Annexure-7) passed in I.A. No.175 of

CMP No. 1178 OF 2022 // 2 //

2022 (arising out of C.S. No.315 of 2022), whereby learned Civil Judge (Junior Division), Bhadrak held as under:

"The IA be and the same is allowed on contest against the O.P. but under the circumstances without any cost. The O.P. is restrained by way of temporary injunction from continuing and operating any clinic nursing home, clinical establishment, dispensary, doctor consultation chamber in medicine shop and providing examination, consultation to out-patients including dispensing of medicines by doctors, administering injection(sic) and other medical procedure like dressing & plastering in the suit schedule land as on today till disposal of the original suit."

3. Mr. Mishra, learned Senior Advocate appearing for the Petitioner submits that the suit has been filed by the Opposite Party for declaration that the tenancy is subsisting and for permanent injunction. Along with the plaint the Opposite Party had also filed I.A. No.139 of 2022 to restrain the present Petitioner from interfering with her possession over the suit property. Said petition for injunction was allowed vide order dated 7th September, 2022 under Annexure-4 directing as under:

"The IA be and the same is allowed on contest against the O.P. but under the circumstances without any cost. The OP is temporarily injuncted to disturb in petitioner's peaceful possession over the suit schedule land as on today till disposal of the original suit."

4. It is his submission that admittedly the Opposite Party is a tenant under the Petitioner. He has been let out with shop room to run a medicine shop. Without any authority of law and without obtaining permission, as required under the provisions of the Orissa Clinical Establishments (Control and Regulation) Act, 1990 (for short 'the Act'), the Opposite Party is running a clinical establishment without having proper med-waste and disposal

CMP No. 1178 OF 2022 // 3 //

management system and thereby the Opposite Party has not only violated the provisions of the Act, but is causing danger to the health and life of the Petitioner and public at large. Hence, the Petitioner being the Defendant No.2 had also filed an application under Order XXXIX Rules 1 and 2 C.P.C. in I.A. No.175 of 2022 with a prayer as under:

"Hence prayed, that O.P. be restrained by way of temporary injunction from continuing and operating any clinic nursing home, clinical establishment, dispensary, doctor consultation chamber medicine shop and providing examination, consultation, presumption to out-patients including dispensing of medicines by doctors, administering injection and other medical procedures like dressing & plaster inside the schedule premises till disposal of the suit."

5. A vague objection was filed without specifically replying to the contentions made in the petition under Order XXXIX Rules 1 and 2 C.P.C. (I.A. No. 175 of 2022). Learned trial Court, vide order dated 7th September, 2022 under Annexure-7, considering the matter from its proper perspective, passed the aforesaid order. However, learned appellate Court although recorded finding in favour of the Petitioner, but passed the aforesaid order thereby passing a mandatory injunction without any prayer made in that respect.

6. It is his submission that learned appellate Court might have either dismissed the appeal or allowed the same, but the Court could not have passed an order, permitting consultation by doctors to out-patients in the said shop room. He further submits that in an inter se dispute between the parties, the Court can take into consideration the public interest and pass appropriate order of

CMP No. 1178 OF 2022 // 4 //

injunction to prevent illegality. In support of his case, he relied upon the case of Mahadeo Savlaram Shelke and others -v- Pune Municipal Corporation and another, reported in (1995) 3 SCC 33, wherein it is held as under:

"14. ............Public interest is, therefore, one of the material and relevant considerations in either exercising or refusing to grant ad interim injunction."

7. Mr. Mishra, learned Senior Advocate also refers to different case laws discussed by Hon'ble Supreme Court in the said judgment and submits that public interest is a factor to be considered while adjudicating an application under Order XXXIX Rules 1 and 2 C.P.C. In the instant case, the Petitioner specifically alleged that due to the illegal act of the Opposite Party in running the clinical establishment, not only individual, but also public interest is being severely affected. Learned appellate Court while adjudicating the appeal, did not at all delve into vital factor of public interest. He also relied upon the decision of this Court in the case of State of Odisha and others -v- Bhagirathi Mishra and another, reported in 2019 SCC OnLine Ori 145, which reiterates the ratio decided in Mahadeo Savlaram Shelke and others (supra). He, therefore, prays for setting aside the impugned order under Annexure-10 and to confirm the order passed by learned trial Court in I.A. No.175 of 2022 under Annexure-7.

8. Mr. Mishra, learned counsel for the Opposite Party vehemently objects to the same and contends that by entertaining I.A. No.175 of 2022, learned trial Court essentially expanded the scope of the suit. Running of a medicine shop with consultation chamber is not a matter in issue in the aforesaid suit. Thus,

CMP No. 1178 OF 2022 // 5 //

learned trial Court could not have entertained the application under Order XXXIX Rules 1 and 2 C.P.C. with the aforesaid prayer. Further, adequate and efficacious mechanism is available under the Act to redress the grievance of the Petitioner. Referring to the interim application, Mr. Mishra, learned counsel submits that the Petitioner, had in fact, approached the authority under the Act, which is pending for consideration. Thus, I.A. No. 175 of 2022 is not maintainable and for that reason alone the order under Annexure-7 is not sustainable. He further submits that the conclusion of learned appellate Court might not have been aptly worded, but learned appellate Court has, by implication partly allowed the application under Order XXXIX Rules 1 and 2 C.P.C. without granting any restraint order for running a consultation chamber in the suit premises. Hence, the allegation of Mr. Mishra, learned Senior Advocate to the effect that a mandatory injunction has been granted, is not correct.

9. He further submits that since the Petitioner has been restrained from interfering with the possession of the Opposite Party pursuant to the order passed under Annexure-4 in I.A. No.139 of 2022, permitting the Opposite Party to run a consultation chamber in the suit premises, cannot be held to be illegal or unjustified. He, therefore, prays for dismissal of the CMP.

10. Heard learned counsel for the parties at length. Perused the materials placed on record including the orders under Annexurs-4, 7 and 8 along with the case laws cited.

CMP No. 1178 OF 2022 // 6 //

11. I.A No.175 of 2022 has been filed with a specific prayer to restrain the Opposite Party from operating any clinic, nursing home, clinical establishment, dispensary, doctor consultation chamber, medicine shop and providing examination, consultation, prescription to out-patients including dispensing of medicines by doctors, administering injection and other medical procedures like dressing etc. in the suit premises. Learned trial Court, vide order under Annexure-4, allowed the prayer made in the interim application. However, it appears that learned appellate Court did not grant the prayer with regard to consultation and prescription to the out-patients by the doctor. But on a plain reading of the conclusion of learned trial Court, it appears that learned appellate Court has passed an order allowing the consultation by doctor to out-patients confirming rest part of the order passed under Annexure-4.

12. On perusal of the provisions of the Act, it appears that there is adequate and efficacious mechanism available under the Act to redress the grievances of the Petitioner. Thus, learned trial as well as appellate Court, while adjudicating the matter, should have discussed the issue with regard to maintainability of I.A. No. 175 of 2022. Mr. Mishra, learned Senior Advocate, however, submits that the Court cannot close its eyes to the illegality. Judicial proceedings cannot be used to protect or to perpetuate wrong committed by a person. He, therefore, submits that the civil Court has jurisdiction to entertain an application under Order XXXIX Rules 1 and 2 C.P.C. to prevent perpetuity of the

CMP No. 1178 OF 2022 // 7 //

illegality committed by the Opposite Party, even if mechanism is available under the Act

13. On the other hand, it is categorically contended by Mr. Mishra, learned counsel for the Opposite Party that since the Petitioner has already approached the authority under the Act, the Court could not have entertained an application under Order XXXIX Rules 1 and 2 C.P.C. intruding into the jurisdiction of the authorities under the Act. When a suit is not maintainable with a relief claimed in the petition for injunction, no interim relief could have been granted by a civil Court. For the inaction, if any, of the authorities under the Act, the Petitioner has a remedy, but not by filing an application under Order XXXIX Rules 1 and 2 C.P.C., which is not the subject matter of dispute of the suit.

14. The rival contentions raised by the learned counsel for the parties requires consideration, as the said issues touches the maintainability of the petition for interim injunction vis-à-vis relief that can be granted by a civil Court. Further, an issue of infringement of public interest has also been raised. These vital aspects require adjudication keeping in mind the relief sought for in I.A. No.175 of 2022. This Court is not in a position to adjudicate the rival contentions raised by the parties in absence of adequate materials available before it. In order to avoid delay by calling for record from the District Court to adjudicate the matter, this Court feels that the appeal should be adjudicated afresh by learned appellate Court.

15. Accordingly, the impugned order under Annexure-10 is set aside and the matter is remitted back to learned appellate Court

CMP No. 1178 OF 2022 // 8 //

for fresh adjudication of F.A.O. No.59 of 2022 giving opportunity of hearing to the parties concerned and keeping in mind the contentions raised by learned counsel for the parties and observation made herein above.

16. Since the matter relates to running of business in the suit premises, learned appellate Court should make an endeavour for early disposal of the appeal. To avoid delay in matter, parties are directed to appear before learned appellate Court along with certified copy of this order on 11th January, 2023 to receive further instruction in the matter.

17. Accordingly, this CMP is disposed of.

Urgent certified copy of this judgment be granted on proper application.

                                               (K.R. Mohapatra)
ms                                                   Judge





     CMP No. 1178 OF 2022