Vspm Academy Of Higher Educaion, ... vs Herd Medical Foundation Private ... on 22 December, 2020

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Bombay High Court

Vspm Academy Of Higher Educaion, ... vs Herd Medical Foundation Private ... on 22 December, 2020

By this writ petition, the petitioner i.e. the original defendant has approached this Court challenging an order dated 23/10/2020, whereby an execution proceeding initiated by the respondent has been ordered under Order XXI Rule 32(5) read with section 36 of the Code of Civil Procedure, 1908 (CPC). According to the petitioner, such execution proceeding for execution of an order of temporary injunction was not maintainable, in the facts and circumstances of the present case. It is contended that at the most, the respondent could have proceeded under Order XXXIX Rule 2A of the CPC.

2. The respondent filed a suit for permanent injunction against the petitioner seeking to restrain the petitioner from opening parallel pharmacy outlet for patients at the hospital run by the petitioner and further to KHUNTE WP2950.20.odt 2/20 restrain the petitioner from dispossessing the respondent from the pharmacy being run by it in the hospital, apart from a direction to restrain the petitioner from running a pharmacy for Below Poverty Line (BPL) patients on the third floor of the said hospital. In the said suit, the respondent moved an application for grant of temporary injunction, seeking an order restraining the petitioner from dispossessing the respondent from the suit premises, also from opening parallel pharmacy in the hospital and restraining the petitioner from running the BPL pharmacy on the third floor of the hospital, during the pendency of the suit.

3. The said suit and the application for temporary injunction were filed on the basis of an agreement between the parties dated 24/02/2014, under which the respondent was given the sole and exclusive right to run pharmacy outlets in the hospital of the petitioner. According to the respondent, the said arrangement between the parties was extended till the year 2021. The petitioner filed written statement and reply to the application for temporary injunction opposing the claims made by the respondent.

4. By order dated 08/07/2019, the Court of Civil Judge Junior Division i.e. the trial Court partly allowed the application of the respondent and temporarily restrained the petitioner from disturbing possession of the respondent in the premises from where its pharmacy shop KHUNTE WP2950.20.odt 3/20 was being run. The other prayers made in the application for temporary injunction on behalf of the respondent were not granted. Aggrieved by the said order, the respondent filed an appeal before the Court of District Judge, Nagpur i.e. the Appellate Court. By judgment and order dated 17/08/2019, the Appellate Court allowed the appeal and granted further temporary injunction of restraining the petitioner from running a parallel pharmacy in the entire premises of the hospital till disposal of the suit. By this order, the Appellate Court also rejected a cross objection filed on behalf of the petitioner.

5. The petitioner had filed Writ Petition No.6520 of 2019, before this Court challenging the said order of the Appellate Court. By order dated 19/12/2019, this Court dismissed the writ petition, thereby confirming the order of the Appellate Court.

6. According to the respondent, despite the order of the Appellate Court being confirmed by this Court, the petitioner was not abiding by the order, as a result of which the respondent, on 18/09/2020, was constrained to initiate execution proceeding before the trial Court under Order 21 Rule 32(5) read with section 36 of the CPC. In this proceeding, the respondent sought removal of all boards of the new pharmacy outlet opened by the petitioner in the hospital premises and also sought removal of the stocks, medicine etc. and further to seal the premises of the said pharmacy opened by the petitioner. In KHUNTE WP2950.20.odt 4/20 this proceeding, the petitioner moved an application for dismissal of the said proceeding, contending that the respondent had an efficacious remedy of filing an application under Order XXXIX Rule 2A of the CPC.

7. By the impugned order, the trial Court accepted the contentions of the respondent and issued warrant, directing the bailiff to remove the boards of the pharmacy opened by the petitioner in violation of the order of temporary injunction and to place report of the same before the said Court.

8. The petitioner filed the present petition challenging the said order. On 27/10/2020, this Court issued notice for final disposal. It was for the first time before this Court that the petitioner contended that there was no violation of the order of temporary injunction because a BPL pharmacy outlet already being run by the petitioner on the third floor of the hospital was shifted to the ground floor. It was claimed that since COVID-19 patients were being treated on the third floor, the existing pharmacy for BPL patients was shifted to the ground floor and since no new pharmacy had been opened, there was no violation of the order of temporary injunction. It was stated on instructions by the learned counsel for the petitioner that from the said pharmacy shifted to the ground floor, medicine was being sold only to BPL patients. Since there were no such pleadings before the Court below and not even in the writ petition, this Court KHUNTE WP2950.20.odt 5/20 granted liberty to the petitioner to file an affidavit to place on record such facts stated for the first time before this Court. This Court granted ad interim stay to the impugned order, subject to the petitioner selling medicines from the pharmacy allegedly shifted to the ground floor only to BPL patients and not to any other patients of the hospital.

9. The petitioner filed affidavit and placed on record the said facts stated before this Court for the first time. The respondent entered appearance and filed a counter affidavit to the same, placing on record photographs and documents to show that the claim of the petitioner of having shifted BPL pharmacy from third floor to ground floor was incorrect. It was stated that the pharmacy opened on the ground floor was a new outlet far bigger than the BPL pharmacy on the third floor. Documents were placed on record to show that before filing of the writ petition and even after the filing, the petitioner was selling medicines to all categories of patients of the hospital, despite the statements made before this Court when the conditional ad interim relief was granted by this Court. In response, the petitioner filed a further affidavit placing on record certain photographs in order to counter the statements made on behalf of the respondent before this Court. The writ petition was heard for final disposal.

10. Mr Masood Shareef, learned counsel appearing for the petitioner, submitted that the impugned order passed by the Court below was unsustainable for the reason that KHUNTE WP2950.20.odt 6/20 the execution proceeding initiated by the respondent was not maintainable. It was submitted that such an execution proceeding for implementation of an order of temporary injunction was not maintainable and that if the respondent was aggrieved by any action of the petitioner, the only remedy available was to file an application under Order XXXIX Rule 2A of the CPC. It was further submitted that the Court below committed a grave error in directing removal of boards of the pharmacy started by the petitioner in the hospital and a blanket direction was wrongly given for removal of other instruments in relation to the pharmacy. It was submitted that such directions could never have been granted on the execution proceeding initiated by the respondent.

11. It was further submitted that the petitioner had merely shifted its pre-existing pharmacy catering to BPL patients from the third floor to the ground floor, because COVID-19 patients were being treated on the third floor, due to which additional space was required on the said floor. On this basis, it was submitted that there was no violation of the order of temporary injunction and this was evident from a perusal of the plaint, wherein the respondent itself had stated that the pharmacy for BPL patients opened by the petitioner was already existing when the suit was filed. Attention was invited to the prayer clauses in the application for temporary injunction and it was pointed out that the temporary injunction order passed by the Appellate Court, as confirmed by this Court, KHUNTE WP2950.20.odt 7/20 granted only two reliefs to the respondent i.e. restrainment on the petitioner to dispossess the respondent from the shop in the hospital wherein it was running its pharmacy and restraining the petitioner from opening new pharmacy outlet in the hospital. It was submitted that when pre-existing pharmacy of the petitioner was shifted from the third floor to the ground floor, there was no occasion for the Court below to have passed drastic directions in the impugned order. It was submitted that medicines were being sold only to BPL patients from the pharmacy on the ground floor and therefore, the impugned order deserved to be set aside.

12. On the other hand, Mr Rahul Bhangde, learned counsel appearing for the respondent, submitted that there was total absence of pleadings on the part of the petitioner before the Courts below and even in the writ petition about the theory of the petitioner that existing pharmacy for BPL patients on the third floor was shifted to the ground floor and that therefore, the order of temporary injunction was in no manner violated. The learned counsel submitted that the petitioner for the first time before this Court through its counsel orally submitted regarding such alleged shifting of the pharmacy for BPL patients from the third floor to the ground floor. It was submitted that the respondent had placed on record documents and photographs to show that the whole theory put forth before this Court for the first time was based on false assertions and that therefore, on this ground itself the KHUNTE WP2950.20.odt 8/20 writ petition deserved to be dismissed. It was further submitted that the respondent had placed on record bills showing that the petitioner was selling medicines to patients of all categories from the pharmacy opened on the ground floor. The medicine was being sold to all such patients prior to filing of the petition and even after order dated 27/10/2020, was passed by this Court. It was submitted that these facts clearly demonstrated the conduct of the petitioner and the fact that it had no intention to respect the orders passed by the Appellate Court and this Court, whereby directions restraining the petitioner had been issued. In this backdrop, it was submitted that the impugned order was fully justified.

13. On the aspect of maintainability of the application for execution of the order of temporary injunction, it was submitted that merely because the respondent could have filed an application under Order XXXIX Rule 2A of the CPC, did not mean that the execution proceeding was not maintainable. In fact, it was submitted that the petitioner could not deprive the respondent of the fruits of the order of temporary injunction passed in its favour and the respondent was well within its rights to have the order of temporary injunction executed through the Court by resorting to Order XXI Rule 32(5) read with Section 36 of the CPC.

14. Heard learned counsel for the rival parties and perused the material on record, including affidavits and KHUNTE WP2950.20.odt 9/20 counter affidavits filed before this Court along with photographs and documents.

15. There is no dispute about the fact that this Court dismissed the writ petition of the petitioner challenging the order passed by the Appellate Court on the application for temporary injunction in favour of the respondent. As per the said order, temporary injunction was granted in favour of the respondent in the following terms:

"[a] The defendant and any other person acting on his behalf is temporarily restrained from disturbing the possession of the plaintiff over the tenanted premises and defendant shall not disturb the plaintiff to run pharmacy shop in the tenanted premises, till the disposal of the suit.

[b] The defendant is temporarily restrained from opening the parallel pharmacy in the entire premises of Lata Mangeshkar Hospital, Digdoh, Hingna, Nagpur, till the disposal of the suit."

16. A perusal the above quoted order shows that the petitioner was temporarily restrained from opening parallel pharmacy in the entire premises of the hospital till disposal of the suit. Thus, the petitioner could not have opened any pharmacy outlet during the pendency of the suit. The respondent approached the Court below seeking execution of the said order and removal of boards of the pharmacy opened on the ground floor and for removal of stocks, medicines as also for sealing of the premises. It was the case of the respondent before the Court below that KHUNTE WP2950.20.odt 10/20 despite the specific temporary injunction granted by the Court restraining the petitioner from opening any parallel pharmacy within the hospital premises, a big outlet was opened on the ground floor near the outlet of the respondent. This prompted the respondent to file the application for execution of the temporary injunction order. The said proceeding was initiated under Order XXI Rule 32(5) read with section 36 of the CPC. The petitioner filed an application, as noted above, for dismissal of the execution proceeding on the basis that if the respondent had any grievance in the matter, the remedy available to the petitioner was to file an application under Order XXXIX Rule 2A of the CPC.

17. In order to deal with the first contention raised on behalf of the petitioner, it would be appropriate to peruse section 36 of the CPC and Order XXI Rule 32(5) thereof. Section 36 of the CPC stipulates that the provisions of the Code relating to execution of decrees shall be deemed to apply to the execution of orders. Order XXI of the CPC pertains to execution of decrees and orders while Order XXI Rule 32(5) specifies that where an injunction has not been with obeyed, the Court may direct the act required to be done, to be done so far as practicable by the decree holder at the cost of the judgment debtor. The explanation to the said provision clarifies that the same covers prohibitory as well as mandatory injunctions. A look at Order XXXIX Rule 2A of CPC shows that it provides for the consequence of breach of an injunction and it empowers KHUNTE WP2950.20.odt 11/20 the Court to attach the property of the person guilty of such disobedience or even detaining such a person in civil prison for a maximum period of 3 months.

18. Thus, it becomes clear that the provisions of section 36 read with Order XXI Rule 32(5) of the CPC, on the one hand and Order XXXIX Rule 2A of the CPC on the other hand operate in different spheres. It cannot be said that when an order of temporary injunction is passed In favour of a party and the person against whom such an order is passed is not obeying the same, then the only remedy available is file an application under Order XXXIX Rule 2A of the CPC. Nothing prevents such a person in whose favour an order of temporary injunction is passed, whereby the rival party is restrained from acting in a particular manner, to seek execution of the same under section 36 read with Order XXI Rule 32(5) of the CPC. A party may not be interested in attachment of property or sending the rival party to civil prison for seeking action regarding disobedience of a temporary injunction order. If it is held that the party in whose favour such a temporary injunction order is passed has only the remedy of Order XXXIX Rule 2A of the CPC, it would mean that such a party would have to wait for disobedience on the part of the rival party and then seek action under the said provision. The remedy under Order XXI Rule 32(5) read with section 36 of the CPC for execution of such an order of temporary injunction is clearly available in law and a party cannot be deprived of the same.

KHUNTE WP2950.20.odt 12/20

19. In the present case, the respondent approached the Court below by filing the said application under Order XXI Rule 32(5) read with section 36 of the CPC to ensure that the order of temporary injunction passed by the Appellate Court and confirmed by this Court was taken to its logical end. Depriving the respondent of the fruits of the order of interim injunction passed in its favour would be doing violence to the object of the existing provision. The question is why should a party be deprived of execution of an order of temporary injunction and if it is held that the only remedy available is under Order XXXIX Rule 2A of the CPC, it would be showing scant regard for rule of law and premium on the behaviour of a party like the petitioner herein. Therefore, this Court finds that there is no substance in the contention raised on behalf of the petitioner that the execution proceeding initiated on behalf of the respondent before the Court below under Order XXI Rule 32(5) read with section 36 of the CPC, was not maintainable.

20. In this backdrop, it becomes necessary now to examine the correctness or otherwise of the impugned order passed by the Court below. A perusal of the material on record shows the pharmacy outlet was opened on the ground floor by the petitioner, despite specific order of restraint passed by the Appellate Court while allowing the application for temporary injunction filed on behalf of the respondent. The petitioner did not place on record any material before the Court below to demonstrate that the KHUNTE WP2950.20.odt 13/20 pharmacy outlet opened on the ground floor could not be said to be in violation of the order of temporary injunction or that it was merely a shifting of an existing pharmacy outlet from the third floor to the ground. All that the respondent claimed before the Court below was that the application for execution of the order of temporary injunction filed on behalf of the respondent was not maintainable. In the face of such material, the Court below arrived at findings against the petitioner and directed removal of the boards of the said pharmacy outlet opened on the ground floor and for removal of the stocks, medicines and other such material.

21. It was for the first time before this Court that such stand regarding shifting of existing pharmacy outlet meant for BPL patients, to the ground floor, was taken on behalf of the petitioner. Admittedly, there was no such statement made even in the writ petition filed before this Court and such a stand was taken on the first date of listing of the writ petition, on the basis of instructions given by the petitioner. This Court took into consideration the contentions raised in that regard for the first time and the petitioner was directed to file an affidavit in support of such stand. This Court gave consideration to the contention raised on behalf of the petitioner that if an interim stay of the impugned order was not granted, patients of the BPL category would suffer because the pharmacy outlet allegedly shifted by the petitioner from the third floor to the ground floor would be shut down KHUNTE WP2950.20.odt 14/20 and medicines would not be available to patients of the said category. It was only on this basis, that while issuing notice, ad interim relief was granted by this Court, subject to the condition that the petitioner would sell medicines only to the patients of the BPL category, through the outlet opened on the ground floor. This Court also took into consideration the claim raised on behalf of the petitioner that the pharmacy outlet had to be shifted from the third floor to the ground floor because the third floor was occupied by COVID-19 patients. An affidavit was indeed filed before this Court on behalf of the petitioner supporting the aforesaid stand taken for the first time before this Court.

22. The respondent filed affidavit in this writ petition contesting the contentions raised on behalf of the petitioner on merits and it specifically stated that the theory of shifting of pharmacy outlet meant only for BPL patients from the third floor to the ground floor was nothing but a smokescreen raised on behalf of the petitioner to mislead this Court. It was submitted that such a stand was a ruse to cover up the activity on the part of the petitioner, which clearly violated the order of temporary injunction passed against It. Along with the said affidavit the respondent placed on record photographs to show that the outlet which was existing on the third floor meant for BPL patients occupied a very small area, while the new outlet opened on the ground floor was massive and that there were documents in the KHUNTE WP2950.20.odt 15/20 form of bills to show that medicines were being sold not only to patients of the BPL category, but also to all kinds of in-patients and out-patients taking treatment at the hospital. According to the respondent, this was not only a violation of the specific restraint order issued in the form of temporary injunction by the Appellate Court and confirmed by this Court, but it also clearly violated the terms of the agreement on the basis of which such an order of temporary injunction was granted. Attention of this Court was invited to bills pertaining to dates prior to the listing of the writ petition for the first time before this Court and also to bills pertaining to dates after this Court had issued notice and granted conditional stay order, demonstrating that the petitioner was openly selling medicines to patients of all categories and that this was a clear violation of the order of temporary injunction. On this basis, it was submitted that the Court below was justified in passing the impugned order and issuing warrants for removal of boards of the new outlet opened on the ground floor as well as for removal of stocks and medicines etc, for execution of the specific order of temporary injunction passed by the Appellate Court and confirmed by this Court.

23. This Court has perused the material on record and it is found that the pharmacy outlet opened on the ground floor is massive as compared to the small outlet that was existing on the third floor meant only for patients of the BPL category. The bills and other such documents placed KHUNTE WP2950.20.odt 16/20 on record show that the petitioner has been selling medicines to all categories of patients from its freshly opened pharmacy outlet on the ground floor, in the teeth of the temporary injunction order passed against it. The documents on record show that even when a solemn statement was made on behalf of the petitioner when the writ petition was listed for the first time that medicines were being sold only to patients of the BPL category, in fact, medicines were being sold to all categories of patients from the said outlet. Even after this Court imposed the aforesaid condition on the petitioner limiting sale of medicines from the said outlet only to patients belonging to the BPL category and such condition/undertaking taken from the petitioner was repeated in subsequent orders, the petitioner continued to sell medicines to all categories of patients through the said outlet. The petitioner did not place on record any material to contradict the said material placed on record on behalf of the respondent. It was only stated by the learned counsel for the petitioner that statement on affidavit was made before this Court and that the petitioner intends to abide by the same.

24. This Court is convinced that there is sufficient material on record to show that the theory of shifting of the existing pharmacy outlet only for BPL patients from the third floor to the ground floor was propounded for the first time before this Court, only to secure an ad interim order. The statement on the basis of which such an ad interim order was granted by this Court is found to be KHUNTE WP2950.20.odt 17/20 false and unsupported by material on record. The material on record also shows that the petitioner, through the said pharmacy outlet opened on the ground floor, continued to act in contradiction with the claims made before this Court. The said claim about the necessity of shifting the pharmacy outlet from the third floor to the ground floor was never stated before the Court below when the execution proceeding was initiated by the respondent. In fact, it was claimed before this Court for the first time. Nothing prevented the petitioner to raise such a claim before the Court below. Instead, the petitioner chose to file an application for dismissal of the execution proceedings on the ground that the respondent could avail of the remedy of filing an application under Order XXXIX Rule 2A of the CPC. It is significant that the said stand was not even taken in the writ petition when it was filed before this Court and it was propounded for the first time in oral arguments by the learned counsel for the petitioner when the petition was listed for the first time.

25. This Court finds that the petitioner has not been able to support the above referred theory by any material on record. It is found that only statements were made in support of such a claim before this Court. In fact, the material brought on record on behalf of the respondent shows that the facts are in complete contradiction to the said stand taken for the first time in oral submissions before this Court. Therefore, this Court finds that there is substance in the contention raised on behalf of the KHUNTE WP2950.20.odt 18/20 respondent that the aforesaid theory of shifting of existing pharmacy outlet for BPL patients from the third floor to the ground floor, was nothing but a smokescreen created by the petitioner to somehow avoid the execution of the order of temporary injunction granted by the Appellate Court and confirmed by this Court. In such a situation, particularly when the petitioner never took any such stand before the Court below, this Court finds that no fault can be attributed to the impugned order.

26. It is significant that the order of temporary injunction granted by the Appellate Court and confirmed by this Court was based on prima facie findings regarding the effect of the terms of the agreement between the parties under which the petitioner itself had granted sole and exclusive rights to the respondent to run pharmacy outlets in the said hospital. Although the existence of the small pharmacy outlet meant for patients of the BPL category on the third floor run by the petitioner was stated in the plaint itself and it was taken into account by the Appellate Court and this Court while granting the order of temporary injunction in favour of the respondent, the petitioner cannot be permitted to take advantage of the same to circumvent the order of temporary injunction passed against it. This Court cannot be a mute spectator to such tactics adopted by the petitioner to somehow deprive the respondent of the fruits of the order of temporary injunction, during the pendency of suit. The material on record shows that the petitioner has actually KHUNTE WP2950.20.odt 19/20 opened a massive pharmacy outlet on the ground floor of the hospital, in the teeth of the order of temporary injunction and therefore, the Court below was justified in passing the impugned order for execution of the order of temporary injunction so that the rule of law is respected and the majesty of the Court is not hurt in any manner.

27. The pharmacy outlet of the respondent in the said hospital is catering to all categories of patients, including the patients belonging to the BPL category and therefore, it cannot be said that execution of the order of temporary injunction, during pendency of suit, by upholding the impugned order, would lead to any kind of inconvenience to the patients visiting the said hospital. It appears that due to the bitterness in the dispute between the parties, the petitioner has adopted the aforesaid tactics to somehow circumvent the order of temporary injunction, which was granted by the Appellate Court and confirmed by this Court. The material on record shows that the petition does not deserve any consideration by the writ Court. The apprehension expressed on behalf of the petitioner that the impugned order was too widely worded and that it would hamper functioning of the hospital itself, is without any basis because a perusal of the impugned order would show that warrant has been issued and direction has been given to the bailiff only to remove the boards of the pharmacy outlet opened by the petitioner in the hospital, in the teeth of the order of temporary injunction, and further removal of instruments only in KHUNTE WP2950.20.odt 20/20 relation to the said pharmacy. There is no direction to remove any other instrument or material pertaining to the hospital in general. The purport of the impugned order is clear that the execution of the order of temporary injunction would mean removal of all such material connected only with the aforesaid pharmacy opened by the petitioner on the ground floor.

28. In the light of the above, this Court finds that there is no substance in the present petition. Accordingly it is dismissed. No order as to costs.

JUDGE Upon pronouncement of the order, Mr. Masood Shareef, learned counsel for the petitioner requested for continuance of the interim order granted by this Court during pendency of the writ petition. This was opposed by Mr.Bhangde, learned counsel appearing for the respondent.

In view of the findings given by this Court in the order passed today, no case is made out for extension of interim order. Hence, request is rejected.

JUDGE KHUNTE Ghanshyam Khunte Digitally signed by Ghanshyam Khunte Date: 2020.12.23 11:44:30 +0530

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