Delhi High Court - Orders
Delhi Medical Assocation vs Ram Kishan Yadav & Ors on 3 June, 2021
Author: C.Hari Shankar
Bench: C.Hari Shankar
$~10
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CS(OS) 269/2021, IA 7239/2021 (Order XXXIX Rules 1 and 2
CPC), IA 7240/2021 (exemption from payment of court fees)
and IA 7241/2021 (exemption)
DELHI MEDICAL ASSOCATION ..... Plaintiff
Through Mr. Rajiv Datta, Sr. Advocate
with Mr. Ankur Mahindro, Mr. Rohan
Taneja, Mr. Shresth Chaudhary, Mr. Soumil
Gonsalves, Ms. Sanjoli Merhrotra, Mr.
Ankush Satija, Mr. Aditya Kapur and Mr.
Siddharth Datta, Advs.
Versus
RAM KISHAN YADAV & ORS. ..... Defendants
Through Mr. Rajiv Nayar, Sr. Advocate
with Mr. Saurabh Seth, Mr. Simranjeet
Singh and Mr. Mizan Ahmad, Advs. for
Defendant No. 1
Mr. Inderbir Singh Alag, Sr. Advocate with
Mr. Simranjeet Singh and Mr. Mizan
Siddiqui, Advs. for Defendant No. 2
Ms. Mamta Jha, Adv. for Defendant No. 4
CORAM:
HON'BLE MR. JUSTICE C.HARI SHANKAR
ORDER
% 03.06.2021
(video conferencing)
IA 7240/2021
1. Subject to plaintiff making payment of court fee within 48 hours of resumption of the normal Court functioning, exemption is granted for the present.
Signature Not Verified Digitally Signed By:SUNIL SINGH NEGI CS(OS) 269/2021 Page 1 of 7 Signing Date:08.06.2021 16:03:092. The application stands disposed of.
IA 7241/20211. Subject to the plaintiff filing legible copies of any dim or illegible documents, on which it may seek to place reliance within a period of four weeks from today, exemption is granted for the present.
2. The application stands disposed of.
CS(OS) 269/2021
1. Mr. Rajiv Datta, learned Senior Counsel as well as Mr. Ankur Mahindro, learned Counsel assisting Mr. Datta, argued the matter at great length.
2. The pleadings contained in the plaint, as well as the lengthy arguments advanced in Court by learned Senior Counsel and learned Counsel, are fundamentally predicated on the premise that the acts of Defendant No. 1 are injurious to, and are likely to prejudicially affect, the public, particularly in the matter of seeking relief from the present Coronavirus pandemic.
3. De hors the merits of the case set up in the plaint, it appears, prima facie, that the averments in the plaint as well as the submissions advanced in Court would directly attract Section 91(1) of the Code of Civil Procedure, 1908 (CPC), which reads thus:
Signature Not Verified Digitally Signed By:SUNIL SINGH NEGI CS(OS) 269/2021 Page 2 of 7 Signing Date:08.06.2021 16:03:09"91. Public nuisances and other wrongful acts affecting the public.--
(1) In the case of a public nuisance or other wrongful act affecting, or likely to affect, the public, a suit for a declaration and injunction or for such other relief as may be appropriate in the circumstances of the case, may be instituted,--
(a) by the Advocate-General, or
(b) with the leave of the Court, by two or more persons, even though no special damage has been caused to such persons by reason of such public nuisance or other wrongful act.]"
4. Mr. Rajiv Nayar, learned Senior Counsel for the Defendant No. 1, advanced, in fact, a preliminary objection regarding the maintainability of the present suit, as it does not seek leave of the Court prior to its institution or entertainment as required by Section 91(1) of the CPC. This, in fact, appears to be mandatory, as held by J.M. Panchal, J., in A.C. Muthiah v. B.C.C.I. 1, paras 42 and 43 of which may be reproduced as under:
"42. With regard to public interest involved in the suit it is relevant to notice that a public interest suit is not unknown to law. As such a public interest suit can be filed by invoking the provisions of Section 91 CPC for removal of public nuisance or other wrongful act affecting or likely to affect the public at large. However, to maintain a suit under Section 91, the plaintiff has to obtain the leave of the Court before institution of the suit and two or more persons must join as plaintiffs in filing the suit.1
(2011) 6 SCC 617 Signature Not Verified Digitally Signed By:SUNIL SINGH NEGI CS(OS) 269/2021 Page 3 of 7 Signing Date:08.06.2021 16:03:09
43. Admittedly, the present suits have not been filed by the appellant invoking the provisions of Section 91 CPC. Except Section 91, the Civil Procedure Code does not contemplate filing of suit for removal of public nuisance and/or other wrongful act affecting or likely to affect the public. Though on running p. 586 of the SLP, which is part of rejoinder filed by the appellant, he has asserted that he has not filed the suits in his personal capacity but has filed the suits in public interest, it is not claimed by him that he has followed the requirements of Section 91 CPC."
5. To this submission, two responses have been offered by learned Senior Counsel for the plaintiff. The first is that Section 91(1) of the CPC may not be infracted as token damages of ₹ 1/- have been claimed by the plaintiff. The second is that the acts of the Defendant No. 1, apart from being prejudicial to public interest, also injure the plaintiff itself.
6. I am not convinced, prima facie, that either of these submissions can be accepted at face value. Insofar as the first submission is concerned, a bare reading of Section 91(1) of the CPC reveals that, irrespective of whether the relief sought is declaration or injunction or any other appropriate relief, if the suit alleges "public nuisance or other wrongful act affecting or likely to affect the public", the suit has to either be instituted by the Advocate General or by two or more persons with the leave of the Court. This protocol, admittedly, has not been followed in the present case, and, therefore, the maintainability of the suit may be open to question. Apropos the second contention, regarding injury to the plaintiff personally, apart from the injury caused to the public in the first instance, the suit is a composite suit and arguments have been advanced in a composite Signature Not Verified Digitally Signed By:SUNIL SINGH NEGI CS(OS) 269/2021 Page 4 of 7 Signing Date:08.06.2021 16:03:09 manner, not separately with respect to any injury caused to the plaintiff. In any event, if the suit is to be restricted to injuries caused to the plaintiff, that may require an amendment of the suit. As it stands today, the averments in the suit essentially allege injury to the public rather than injury to the plaintiff itself.
7. Mr. Datta has also invited my attention to Article 3 of the Memorandum of Association of the plaintiff society, to underscore the submission that personal injury to the plaintiff also resulted as a consequence of the impugned acts of Defendant No. 1. This, in my view, is at the highest an arguable point. Article 3 of the Memorandum of Association of the plaintiff merely sets out the objectives for which the plaintiff society was formed. These objectives relate to aspects of public interest particularly public health. If, in pursuance of such objectives, acts, which are treated as injurious to public health, are to be assailed in a suit, it may well fall for consideration as to whether Section 91(1) of the CPC would not be applicable in such a case. In any event, the matter is, as already opined above, highly arguable.
8. On the basis of the submissions advanced at the Bar on behalf of the plaintiff, therefore, I am unable to hold, clearly, that the suit is maintainable as filed.
9. That apart, considerable time has elapsed since the making of the allegedly injurious statements by the Defendant No. 1, the latest statement, to which the suit refers, being more than a month old, Signature Not Verified Digitally Signed By:SUNIL SINGH NEGI CS(OS) 269/2021 Page 5 of 7 Signing Date:08.06.2021 16:03:09 though Mr. Datta submits that Defendant No. 1 continues to make such statements.
10. In any event, given the nature of the cause pleaded by the plaintiff, I am of the opinion that any injunctive orders, without giving an opportunity to the defendants to respond to the plaint, especially in view of the objection relating to maintainability raised by Defendant No. 1, would not be appropriate.
11. Accordingly, issue summons in CS (OS) 269/2021. Summons are accepted by Mr. Simranjeet Singh, learned Counsel on behalf of Defendant Nos. 1 and 2 and by Ms. Mamta Jha, learned Counsel on behalf of Defendant No. 4.
12. Written statements, if any, be filed within four weeks, accompanied by affidavits of admission and denial of the documents filed by the plaintiff with advance copy to the plaintiff, who may file replications thereto, accompanied by affidavits of admission and denial of the documents filed by the defendants, if any, within a period of two weeks thereof.
13. List before the Joint Registrar for completion of pleadings, admission and denial of documents and marking of exhibits on 12th August, 2021.
IA 7239/2021 (Order XXXIX Rules 1 and 2 CPC)
1. Issue notice. Notice is accepted by Mr. Simranjeet Singh, Signature Not Verified Digitally Signed By:SUNIL SINGH NEGI CS(OS) 269/2021 Page 6 of 7 Signing Date:08.06.2021 16:03:09 learned Counsel on behalf of Defendant Nos. 1 and 2 and by Ms. Mamta Jha, learned Counsel on behalf of Defendant No. 4.
2. Let notice issue to Defendant Nos. 3 and 5 separately. Defendant No. 6 is in the nature of unnamed defendant, whose acts may also be vulnerable to challenge according to the plaintiff.
3. Response(s), if any, positively be filed within a period of three weeks from today with advance copy to learned Counsel for the plaintiff, who may file rejoinder(s) thereto, if any, at least 24 hours in advance of the next date of hearing.
4. It would be advisable that the responses are not restricted to the aspect of the maintainability but also deal with the merits of the challenges in the plaint.
5. List for hearing and disposal of the IA on 13th July, 2021 before the Court at the end of the board, subject to part heard matters if any.
C.HARI SHANKAR, J JUNE 3, 2021 r.bararia Signature Not Verified Digitally Signed By:SUNIL SINGH NEGI CS(OS) 269/2021 Page 7 of 7 Signing Date:08.06.2021 16:03:09