Rajasthan High Court - Jaipur
Narayana Hrudayalaya Hospital vs Satyanarayan Sharma S/O Bhanwargopal ... on 21 February, 2024
Author: Ashok Kumar Jain
Bench: Ashok Kumar Jain
[2024:RJ-JP:9126]
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Civil Revision Petition No. 123/2017
1. Narayana Hrudayalaya Hospital, Sector-28, Ranga Sanga
Marg, Pratap Nagar, Sanganer, Jaipur Through Facility
Director.
2. Dr. Alok Mathur, Consultant Cardic Surgeon, Narayana
Hrudalaya Hospital, Sector- 28, Rana Sanga Marg, Pratap
Nagr, Sanganer, Jaipur.
----Petitioners
Versus
1. Satyanarayan Sharma S/o Bhanwargopal Sharma, R/o
Bafno Ka Mohalla, Old City Kishangarh District Ajmer
Rajasthan.
2. Yogeshwar Prasad Sharma S/o Shri Bhawargopal Sharma,
R/o Bafno Ka Mohalla, Old City Kishangarh District Ajmer
Rajasthan.
3. Smt. Ranjita Joshi D/o Bhanwargopal Sharma W/o
Pushpender Singh, R/o Bafno Ka Mohalla, Old City
Kishangarh District Ajmer Rajasthan.
4. Hunny Sharma S/o Satyanarayan Sharma, Minor Through
Their Father And Natural Guardian Shri Satyanaryan
Sharma, R/o Bafno Ka Mohalla, Old City Kishangarh
District Ajmer Rajasthan.
5. Shriyans Sharma S/o Satyanarayan Sharma, Minor
Through Their Father And Natural Guardian Shri
Satyanaryan Sharma, R/o Bafno Ka Mohalla, Old City
Kishangarh District Ajmer Rajasthan.
Respondents/Plaintiffs
6. Kishangarh Marble Udyog Vikas Samiti, Madanganj
Kishangarh Through President.
7. Marble City Hospital Madanganj, Kishangarh Through
Incharge Dr. M.k. Bohra.
8. Dr. R.p. Garg Physician, Marble City Hospital, Madanganj,
Kishangarh.
9. State Of Rajasthan, Through District Collector Ajmer.
10. Jawaharlal Nehru Hospital, Through Superintendent,
Ajmer.
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11. Dr. R.k. Gokhru, Cardic Professor, Hear Of The
Department, Cardiology, Jln Hospital, Ajmer.
----Respondents/Defendants
For Petitioner(s) : Mr. K.M. Mathur
For Respondent(s) : Mr. Devanshu Sharma for Respondent
nos. 1 to 5 HON'BLE MR. JUSTICE ASHOK KUMAR JAIN Order REPORTABLE 21/02/2024
1. Instant S.B. Civil Revision Petition is preferred aggrieved from order dated 06.03.2017 in Civil Suit No.46/2014 titled as "Satyanarayan & Ors. Vs. Kishgarh Marble Udyog Vikas & Ors." whereby learned Additional District Judge, Kishangarh had dismissed the application under Order 7 Rule 11 of CPC preferred by petitioners who were arrayed as defendant nos. 7 and 8.
2. A civil suit under Section 1-A and 2 of the Fatal Accident Act, 1885 was filed by the legal representatives of Bhanwargopal Sharma to claim compensation on the ground that due to negligence in treatment of Bhanwargopal Sharma by defendant nos. 2, 3 and 5 to 8, Bhanwargopal Sharma died on 31.03.2014. The plaintiff respondent nos. 1 to 5 have claimed compensation of ₹90,00,000/- from the defendants which includes defendant no.1 and defendant no.4.
3. During pendency of this civil suit an application under Order 7 Rule 11 CPC was filed by present petitioners, arrayed as defendant nos. 7 and 8 on the ground that the suit of the plaintiffs is not maintainable under the Fatal Accident Act, 1885 and present (Downloaded on 15/03/2024 at 09:27:54 PM) [2024:RJ-JP:9126] (3 of 10) [CR-123/2017] petitioners have no relation with defendant nos. 1 to 6. Furthermore, the cause of action was not accrued in the jurisdiction of District Court, Kishangarh (Ajmer). The objection about the misjoinder of cause of action was also raised. Learned trial court has dismissed the application on the ground that partially cause of action arose in the jurisdiction of Kishangarh and partially in Jaipur, therefore, the suit is maintainable. Aggrieved from aforesaid, the instant revision petition is preferred before this Court.
4. Learned counsel for petitioners relying upon grounds of revision petition submitted that the petitioners are indisputably carrying on business in the jurisdiction of Jaipur and they have no branch at Kishangarh, Ajmer and no suit can be filed against them in the jurisdiction of Kishangarh (Ajmer) for negligence in treatment. He also submitted that even from the statement of the plaintiffs, no treatment was given at Kishangarh by the petitioners, therefore, no cause of action has arisen against the petitioners and the trial court has erred in not allowing the application. He also submitted that in case of alleged medical negligence, the suit is not maintainable under the Fatal Accident Act before the Civil Court. He also submitted that the trial court has failed to consider the fact that several cause of action were joined together and on the basis of which a civil suit was filed before the trial court, therefore, same is not maintainable. He specifically submitted that the Courts at Kishangarh (Ajmer) have no jurisdiction to adjudicate any subject matter wherein any cause of action has not arisen against the present petitioners within jurisdiction of trial court, as petitioners are having business at (Downloaded on 15/03/2024 at 09:27:54 PM) [2024:RJ-JP:9126] (4 of 10) [CR-123/2017] Jaipur, therefore, on grounds of misjoinder of cause of action and in absence of cause of action, the suit was filed and same is liable to be dismissed under Order 7 Rule 11. Learned counsel for petitioner relied upon judgment of this Court in case of Sarjent S.S. Sheikhawat and Ors. Vs. Union of India and Anr. 2009 WLC (Raj.) UC 50 and submitted that if the death took place in Jaipur, then suit cannot be filed at Kishangarh (Ajmer). He also relied upon judgment in case of Popat and Kotecha Property Vs. State Bank of India Staff Association 2005 (4) RCR (Civil) SC 334 and Sopan Sukhdeo Sable Vs. Assistant Charity Commissioner (2004) 3 SCC 137 and submitted that when the suit is barred by law and did not disclose any cause of action then same is required to be dismissed under Order 7 Rule 11 of CPC.
5. Aforesaid contentions were opposed by learned counsel for respondent Nos. 1 to 5 (plaintiffs) on the ground that the application under Order 7 Rule 11 is required to be disposed of only on the basis of averment in the plaint and not on the basis of defence raised by defendants. He also submitted that in case of accrual of continuous cause of action in different jurisdiction, the suit can be filed at any place at the option of plaintiffs. He also submitted that on death due to negligence in treatment the damages can be claimed under the Fatal Accident Act, 1885. He also submitted that the role of present petitioners was well- explained in the plaint, therefore, the trial court has rightly dismissed the application under Order 7 Rule 11 of CPC. (Downloaded on 15/03/2024 at 09:27:54 PM)
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6. Heard learned counsels for the parties. Perused the material on record. Also considered the judgments as referred by learned counsel for petitioners.
7. In case of Sopan Sukhdeo Sable (supra), Hon'ble Supreme Court held that the trial court has power to reject the plaint which is barred by law but a part of plaint cannot be rejected even if no cause of action is disclosed thus the plaint as a whole must be rejected. Further, it was laid down that the averments in the plaint are germane and pleas taken in written statement would be wholly irrelevant at this stage. The trial court is duty bond to consider that from bare and meaningful reading of the plaint, any of the infirmities as described under Clause (a to d) of Rule 11 under Order 7 CPC was attracted.
8. In case of Popat and Kotecha Property (supra), Hon'ble Supreme Court laid down that power under Order 7 Rule 11 of CPC can be exercised at any stage of the suit which includes before registering plaint or after issuance of summons to the defendants. Further, Hon'ble Supreme Court has observed that pleadings has to state material fact. In case of Sarjent S.S. Sheikhawat and Ors.(supra), a Co-ordinate Bench of this Court held that when accident has taken place in Gujarat then suit is only maintainable where the cause of action arose at the most, where the defendants resides and the Courts at Jaipur have no jurisdiction to entertain the suit.
9. Hon'ble Supreme Court in case of Malati Sardar Vs. National Insurance Company & Ors. (2016) 3 SCC 43, while considering the judgment in case of Kiran Singh & Ors. Vs. Chaman Paswan AIR 1954 SC 340 has observed that the (Downloaded on 15/03/2024 at 09:27:54 PM) [2024:RJ-JP:9126] (6 of 10) [CR-123/2017] provision of territorial jurisdiction has to be interpreted consistently with the object of facilitating remedies for the victims and hypertechnical approach in such matter can hardly be appreciated.
10. In the instant case, the application under Order 7 Rule 11 of CPC was filed on following grounds:
"(i) The civil suit not maintainable under the Fatal Accident Act and any action for damages can only be filed under the Consumer Protection Act before the Consumer Forum.
(ii) Petitioners defendant nos. 7 and 8 have no connection with defendant nos. 1 to 6 and no cause of action had arisen in the territorial jurisdiction of Kishangarh (Ajmer).
(iii) The mis-joinder of several cause of action is a defect and the cause of action against the petitioner is not connected with other defendants."
11. First objection of the petitioner relates to maintainability of civil suit under the Fatal Accident Act, 1885. The Fatal Accident Act, 1855 was enacted to provide compensation to families for loss occasioned by the act of the person caused by actionable wrong. Section 1-A of the Act provides for suit for compensation to the family of person for loss occasioned to it by his death by actionable wrong.
12. The term "actionable wrong" has not been defined in the Act but in case of W.W. Joshi Vs. State of Bombay (1959) II LLJ 485 (Bombay) while referring the judgment of Hon'ble Supreme Court in case of State of Tripura Vs. Province of East Bengal 1951 SCR 1 (SC), the meaning of term "actionable wrong" (Downloaded on 15/03/2024 at 09:27:54 PM)
[2024:RJ-JP:9126] (7 of 10) [CR-123/2017] deducable as an illegal or unauthorized act infringing legal right of another affording him ground for action in law.
13. The Consumer Protection Act, 2019 was enacted to provide for protection of interest of consumers and for the said purpose to establish authorities for timely and effective administration and settlement of consumer disputes for matter connected therewith and incidental thereto. In the entire act, the jurisdiction of Civil Court or any other authority, wherein any petition can be filed in any matter incidental thereto is not barred.
14. In case of Sau Rajani Vs. Sau Smita: 2022 SCC Online SC 1016, Hon'ble Supreme Court has considered the judgment of Dhulabhai vs. State of M.P. : AIR 1969 SC 78, wherein the Constitution Bench in respect of bar of jurisdiction to try suit of civil nature under Section 9 of CPC had observed that where the statute gives a finality to the orders of special tribunals created under the said statute, then, jurisdiction of civil court must be held to be excluded but where there is no express exclusion the examination of the remedies and the Scheme of the particular act to file the intendment becomes necessary and the result of enquiry may be decisive. Thus, an exclusion of the jurisdiction of the civil court is not readily to be inferred unless the conditions as set down apply. Again while referring the judgment in the case of Rajasthan SRTC Vs. Balmukund (2009) 4 SCC 299 further observed that there is a presumption that a civil court has a jurisdiction.
15. In case of Sau Rajani Vs. Sau Smita (supra), Hon'ble Supreme Court observed that in cases where the jurisdiction of the Civil Court is barred by a statute, the test is to determine if (Downloaded on 15/03/2024 at 09:27:54 PM) [2024:RJ-JP:9126] (8 of 10) [CR-123/2017] the authority or tribunal constituted under the statute has the power to grant reliefs that the Civil Courts would normally grants in suit filed before them. Having considered the law over the point I am of the considered view that instant civil suit under the Fatal Accident Act is maintainable before the Civil Court and same is not barred under any of the law including the Consumer Protection Act.
16. Now, comes the question of territorial jurisdiction. The petitioners, a healthcare hospital, having business at Jaipur only and according to the petitioners they are not having any branch or connection with remaining defendant nos. 1 to 6, therefore, the Court at Jaipur have exclusive jurisdiction to entertain and adjudicate the dispute between the parties.
17. We have gone through the averment in the plaint. In plaint itself, the plaintiffs have pleaded that initially the patient Bhanwar Gopal Sharma was taken to Local Hospital at Ajmer and then he was brought to Narayana Hrudalaya Hospital (defendant no.7/ petitioner no.1) wherein he remained under the observation and supervision of defendant no.8 (petitioner no.2). A perusal of plaint clearly indicated that from 10.02.2014 till death of patient Bhanwargopal Sharma on 31.03.2014 he remained in Narayana Hrudalaya Hospital. In para no.6 of the plaint the plaintiffs had claimed that Marble City Hospital, Kishangarh and Narayana Hrudalaya Hospital both indulged in misleading advertisement. The plaintiffs joined the cause of action from first date of treatment i.e. 04.02.2014 till 31.03.2014.
18. Herein, the plaint did not disclosed any connection or relation of defendant nos. 7 and 8 with other defendants but a cause of (Downloaded on 15/03/2024 at 09:27:54 PM) [2024:RJ-JP:9126] (9 of 10) [CR-123/2017] action arose from 04.02.2014 till 31.03.2014 were clubbed together and a suit for damages was filed in the jurisdiction of Kishangarh (Ajmer). There is clubbing of cause of action, though defendant nos. 7 and 8 are not connected with other defendants but in a situation wherein a series of wrong were alleged against several defendants, therefore, in such a situation, it is not possible to bisect or separate the cause of action and permit filing of a civil suit(s) in the jurisdiction of different courts. Section 20 of CPC clearly provides that a court within whose local limits the cause of action wholly or in part arises, would have territorial jurisdiction to try the suit. Thus, looking to joinder of cause of action against different defendants, the suit is maintainable in the jurisdiction invoked by the plaintiffs.
19. The cause of action implies "right to sue" or material facts which are imperative for the suitor to allege and prove constitute cause of action. The cases of UOI Vs. Adani Exports Ltd. (2002) 1 SCC 567, Kusum Ingots Vs. UOI (2004) 6 SCC 254 and NTC Ltd. Vs. Haribox Swalram (2004) 9 SCC 786 can be relied for the purpose. In case of Prem Lala Nahata & Anr. V. Chandi Prasad Sikaria, Appeal (Civil) 446 of 2007, Hon'ble Supreme Court has made it clear that a suit cannot be dismissed on defect of misjoinder of parties or misjoinder of cause of action, as the remedy has already provided in the Code itself.
20. The judgment as referred by learned counsel has no relevance as some of the defendants resides or carries on business in local jurisdiction of court and partial cause of action has arisen in the jurisdiction of local court, therefore, the trial court has rightly dismissed the application under Order 7 Rule 11 (Downloaded on 15/03/2024 at 09:27:54 PM) [2024:RJ-JP:9126] (10 of 10) [CR-123/2017] CPC. Hence, the present revision petition is devoid of merits and is liable to be dismissed.
21. As a result, the revision petition is hereby dismissed.
22. Misc. application, if any, stands disposed of.
(ASHOK KUMAR JAIN),J CHETNA BEHRANI /2 (Downloaded on 15/03/2024 at 09:27:54 PM) Powered by TCPDF (www.tcpdf.org)