Partly allowed

Fortis Hospitals Limited v. Mr. Vimal Chordia

Karnataka HC3 Jul 2024MFA/4177/2024

Case brief

AI extract

What is this about?

In a first appeal under CPC against rejection of temporary injunction applications, the High Court of Karnataka found the lower court's order untenable due to lack of reasons and disregard of recent averments. The appeal was allowed in part, and the matter remitted for fresh consideration.

What did the court decide?

The impugned order is set aside, and the matter is remitted to the trial Court for fresh consideration of the applications within two weeks.

Fortis Hospitals Limited Vs Mr. Vimal Chordia — Property and Title | Karnataka HC (2024)

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

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 3^RD DAY OF JULY, 2024 BEFORE

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THE HON'BLE MR JUSTICE RAVI V HOSMANI MISCELLANEOUS FIRST APPEAL NO.4177 OF 2024 (CPC)

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BETWEEN:

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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.

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…APPELLANT

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(BY SRI DHYAN CHINNAPPA, SR. COUNSEL FOR SRI RAVI SHANKAR R., ADVOCATE)

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AND:

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MR. VIMAL CHORDIA, S/O MR. S. PUKHRAJ, AGED ABOUT 55 YEARS, HAVING ADDRESS AT M-1, SHERIFF CHAMBERS, NO.14, CUNNINGHAM ROAD, BANGALORE-560 052. 2. MRS. SHANTA DEVI, PROPRIETRIX OF M/S. REGENCY, W/O MR. S. PUKHRAJ, MAJOR, HAVING ADDRESS AT M-1, SHERIFF CHAMBERS, NO.14, CUNNINGHAM ROAD, BANGALORE - 560 052.

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Digitally signed by GEETHAKUMARI PARLATTAYA S Location: High Court of Karnataka

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…RESPONDENTS

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(BY SRI RAJADITYA SADASIVAN, ADVOCATE FOR C/R1)

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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

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

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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.

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

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JUDGMENT

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Challenging order dated 24.06.2024 passed by XVI Addl.

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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.

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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

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

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

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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.

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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.

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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

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

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ramp connecting access to lift lobby and installed hoarding

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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.

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It was submitted, trial Court had initially granted ex-parte ad-interim injunction on I.A.no.1 as follows:

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

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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.

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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,

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

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

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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.

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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.

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

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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.

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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.

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

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Heard learned counsel and perused impugned

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order.

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From above, it is seen main grounds for challenge

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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:

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

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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,

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

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it is seen that trial Court in paragraph no.25 as stated that dismissal on said ground would not be warranted.

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

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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.

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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:

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"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

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

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

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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."

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In light of specific assertions by defendants, trial

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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:

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ORDER

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i. Appeal is allowed in part.

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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.

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

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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.

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

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

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vi. Ad-interim injunction/order granted on 12.01.2024 would continue till disposal of I.As.no.1 and 3.

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In view of disposal of appeal, pending applications are also disposed of.

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Sd/JUDGE

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GRD

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List No.: 1 Sl No.: 10

Fortis Hospitals Limited v. Mr. Vimal Chordia

Case brief

What is this about?

What did the court decide?

Fortis Hospitals Limited v. Mr. Vimal Chordia

Case brief

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