Gujarat High Court
Sugarabibi Wd/O Noormohammed ... vs Vijay Vallabh Sarvajanik Hospital on 24 March, 2022
Author: A. P. Thaker
Bench: A. P. Thaker
C/AO/274/2018 JUDGMENT DATED: 24/03/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/APPEAL FROM ORDER NO. 274 of 2018
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2018
In R/APPEAL FROM ORDER NO. 274 of 2018
FOR APPROVAL AND SIGNATURE:
HONOURABLE DR. JUSTICE A. P. THAKER
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1 Whether Reporters of Local Papers may be allowed No
to see the judgment ?
2 To be referred to the Reporter or not ? Yes
3 Whether their Lordships wish to see the fair copy No
of the judgment ?
4 Whether this case involves a substantial question No
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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SUGARABIBI WD/O NOORMOHAMMED HASANBHAI MANIYAR
Versus
VIJAY VALLABH SARVAJANIK HOSPITAL
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Appearance:
SHASHVATA U SHUKLA(8069) for the Appellant(s) No. 1,2
MR DHRUV K DAVE(6928) for the Respondent(s) No. 1
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CORAM:HONOURABLE DR. JUSTICE A. P. THAKER
Date : 24/03/2022
ORAL JUDGMENT
1. Being aggrieved and dissatisfied with the judgment and order dated 12.5.2018 passed by learned 7 th Additional District Judge, Vadodara passed in Regular Civil Appeal No. 89 of 2017 whereby the appellate Court has set-aside the Page 1 of 28 Downloaded on : Sun Mar 27 21:42:05 IST 2022 C/AO/274/2018 JUDGMENT DATED: 24/03/2022 judgment and decree passed by the trial Court in Regular Civil Suit No. 5020 of 2015 (Old Special Civil Suit No. 506/1992) and remanded the matter back to the trial Court for providing an opportunity to the defendant to file written statement and leading the evidence in support of the case, keeping liberty reserved to plaintiff to file further evidence before the trial Court, the original plaintiff has preferred this Appeal from Order.
2. The appellant is the original plaintiff and the respondent is the original defendant before the trial Court. The parties are referred to in this order as per the character assigned to them before the trial Court.
3. The brief facts of the case, as emerged out from the material, are as under:
3.1 The plaintiff has instituted a Suit for compensation to the tune of Rs. 2,50,000/- on the basis that her husband was admitted in the hospital of the defendant and due to negligence on the part of the medical officer of the defendant, he died. Thus, the entire Suit is based upon the allegation that due to negligence on the part of Doctor of the defendant hospital, the deceased has died. In the Suit, Page 2 of 28 Downloaded on : Sun Mar 27 21:42:05 IST 2022 C/AO/274/2018 JUDGMENT DATED: 24/03/2022 summons were issued to the defendant and inspite of many adjournments granted to the defendant, written statement was not filed. Thereafter, issues were framed and the plaintiff has filed her affidavit in lieu of Chief-examination, which was not contested by the defendant. Ultimately, the trial Court has decreed the Suit on the sole evidence of the plaintiff. The same came to be challenged by the defendant by way of filing Regular Civil Appeal No. 89 of 2017 before the District Court, Vadodara. The 7th Additional District Judge, Vadodara has allowed the said Appeal and set-aside the decree and judgment of the First Appellate Court and directed the trial Court to give an opportunity of filing written statement as well as leading evidence to the defendant and has also granted liberty to the plaintiff to lead further evidence and the time for disposal was also fixed of 6 months.
3.2 Against the impugned order of the First Appellate Court, the plaintiff has contended that as per the Rojkam of the Suit proceedings, necessary notice was issued on various occasion to the defendant regarding transfer of the Suit to the Court. It is also contended that the defendant has Page 3 of 28 Downloaded on : Sun Mar 27 21:42:05 IST 2022 C/AO/274/2018 JUDGMENT DATED: 24/03/2022 already engaged advocate and as the advocate of the defendant didn't took part in the proceedings, ultimately the right to file the written statement of the defendant came to be closed. It is also contended that the plaintiff has already filed her affidavit in lieu of Chief Examination and copy thereof was kept before the Court, but the learned advocate for the defendant did not cared to cross-examine the plaintiff and ultimately she was not cross-examined. It is also contended that it was negligence on the part of the defendant not to file any written statement and to lead any evidence. That the Court has committed error of law in remanding the matter. According to the plaintiff, the trial Court has rightly decided the suit in favour of the plaintiff and the same ought not to have been disturbed by the First Appellate Court. It is also contended that the Appellate Court has not assigned any proper reasons for remanding the matter back to the trial Court, since the Suit was pending for long time from 1992 to 2016. It is contended that the entire exercise undertaken by the First Appellate Court is not sustainable in the eyes of law. It is prayed by the plaintiff to set-aside the impugned order of the First Appellate Court and to direct the Appellate Court to hear Page 4 of 28 Downloaded on : Sun Mar 27 21:42:05 IST 2022 C/AO/274/2018 JUDGMENT DATED: 24/03/2022 the Appeal on merits.
4. Heard Mr. Shashvata Shukla, learned advocate for the plaintiff and Mr. Dhruv Dave, learned advocate for the respondent. Perused the material placed on record.
5. Mr. Shukla, learned advocate for the plaintiff has vehemently submitted the same facts which are narrated hereinabove. He has submitted that the husband of the plaintiff was admitted in the hospital of the defendant as there was stone in the kidney and while administering anesthesia, he became unconscious and remained in Coma for almost more than 8 months and ultimately he died. He has submitted that thus the death of the deceased was due to negligence on the part of the Doctor of the respondent and, therefore, the plaintiff was constrained to file the Suit for compensation. According to him, as per the Rojkam, initially the Suit was registered as Special Civil Suit and thereafter it was renumbered on transfer to another Court and thereafter necessary notices were issued to the defendant, but, the defendant did not remained present before the trial Court. Mr. Shukla, while referring to the Rojkam has submitted that though notices were issued to Page 5 of 28 Downloaded on : Sun Mar 27 21:42:05 IST 2022 C/AO/274/2018 JUDGMENT DATED: 24/03/2022 the defendant, nobody remained present for the defendant and, therefore, the trial Court has proceeded with the Suit and ultimately passed decree in favour of the plaintiff.
5.1 Mr. Shukla, learned advocate, while referring to the impugned judgment of the First Appellate Court, has submitted that the First Appellate Court has relied upon the provision under Order 18 Rule 4 of the CPC. regarding providing copy of the affidavit in lieu of Chief-Examination to the other party and has remanded the matter to the trial Court, which is not in consonance with the law. That as per the prevalent practice in the trial Court, copy of the said affidavit of the deponent is being kept in the Court and the learned advocate for the other side receives it and thereafter cross-examine the deponent. He has submitted that in the present case also copy of the affidavit in lieu of the Chief Examination of the plaintiff is already lying with the records of the case. He has submitted that when the defendant was represented by learned advocate and he did not took part in the proceedings, for that purpose the order of remand cannot be passed. He has also submitted that no order for remand could be passed by the Appellate Page 6 of 28 Downloaded on : Sun Mar 27 21:42:05 IST 2022 C/AO/274/2018 JUDGMENT DATED: 24/03/2022 Court only for filling the lacuna in the pleading and evidence of the defendant. He has also submitted that even the defendant has not raised any point or issue for remand of the matter to the trial Court and yet the Appellate Court has passed the impugned order. He has also submitted that the appellate Court has not only remanded the matter back for leading evidence, but, has also permitted the defendant to file his written statement which could delay the proceedings. He has also submitted that some order for depositing of money ought to have been passed by the First Appellate Court as there was money decree already passed in favour of the plaintiff. He has submitted that impugned order and judgment are not sustainable in the eyes of law and deserves to be quashed and set-aside and the Appellate Court needs to be directed to re-hear the Appeal on its merits as per the evidence on record. He has prayed to allow the appeal and has relied upon the following decisions in support of the submission:
1. B.V. Smitha Rani v. M.K.Girish, reported in (2009) 17 SCC 660;
2. Syeda Rahimunnisa v. Malan Bi (Dead) by Legal Representatives and Another, reported in (2016) 10 Page 7 of 28 Downloaded on : Sun Mar 27 21:42:05 IST 2022 C/AO/274/2018 JUDGMENT DATED: 24/03/2022 SCC 315;
3. Arockiaprakash v. Rangasamy, reported in 2007 (3) CTC 383;
4. M/s. Malhan Builders and Ors v. Durkhanie Jadran and Ors, reported in ILR (2006) II Delhi 679;
5. Gopareddy v. Bhaganna, reported in 1985 SCC OnLine Karnataka 2783;
6. Savita Garg (Smt) v. Director, National Heart Institute, reported in (2004) 8 SCC 56;
7. Lakhi Prasad Fogla v. Murlidhar Marwari and Other, reported in AIR 1973 Patna 250.
6. Per contra, Mr. Dhruv Dave, learned advocate for the defendant has supported the impugned order of the First Appellate Court and has submitted that since there was no compliance of Order 18 Rule 4 of CPC, the order is proper one. He has also submitted that even from the Rojkam it appears that no notice was issued to the defendant. He has also submitted that in the Appeal Memo filed before the First Appellate Court, the point for remand was raised and, therefore, the First Appellate Court has properly considered the facts of the present case and has not committed any error in remanding the matter back to the trial Court. He has also submitted that it was specific case of the defendant that Doctor who has administered the anesthesia has not been joined in the proceedings and the Page 8 of 28 Downloaded on : Sun Mar 27 21:42:05 IST 2022 C/AO/274/2018 JUDGMENT DATED: 24/03/2022 said Doctor was even not engaged by the defendant. He has also submitted that the First Appellate Court has not committed any error in remanding the matter back and if such order is even not disturbed appropriate liberty would be available to the plaintiff herself to produce the additional evidence. He has prayed to dismiss the present appeal. He has relied upon the following decisions:
1. J. Balaji Singh V. Diwakar Cole and Others, reported in (2017) 14 SCC 207 (Para-16 to 18)
2. C.N.Ramappa Gowda V. C.C. Chandregowda, reported in (2012) 5 SCC 265 (para-25)
3. Jegannathan V. Raju Sigamani and another, reported in (2012) 5 SCC 540 (para-11)
4. Malay Kumar Ganguly V. Dr. Sukumar Mukherjee and others, reported in (2009) 9 SCC 221
5. Narayanan V. Kumaran And others, reported in (2004)
4 SCC 26
7. In rejoinder, Mr. Shukla, learned advocate for the plaintiff, submitted that the judgments relied upon by the learned advocate for the defendant are factually different and are not applicable to the facts of the present case. He has also submitted that the First Appellate Court has only referred Page 9 of 28 Downloaded on : Sun Mar 27 21:42:05 IST 2022 C/AO/274/2018 JUDGMENT DATED: 24/03/2022 to the submissions by the Appellant before it, but, has not made any observation regarding the merits of the case as observed in the judgment of the trial Court. He has also submitted that under Order 18 Rule 4, the words "supply" has to be considered in light of the facts of the case. He has submitted that in present case when advocate for the defendant was on record, the supply of the copy of the affidavit in the Court record means that it has been supplied to the other side under Order 3 Rule 1. Mr. Shukla alternatively submitted that if the Court came to the conclusion that the order of the First Appellate Court is proper one, then necessary order of deposit of amount be passed so that right of the plaintiff is protected.
8. In case of Syeda Rahimunnisa v. Malan Bi (Dead) by Legal Representatives and Another (Supra), the Apex Court has held in Para-36 as under:
"36. It is a settled principle of law that in order to claim remand of the case to the trial court, it is necessary for the appellant to first raise such plea and then make out a case of remand on facts. The power of the appellate court to remand the case to subordinate court is contained in order XLI Rule 23, 23-A and 25 of CPC. It is, therefore, obligatory upon the appellant to bring the case under any of these Page 10 of 28 Downloaded on : Sun Mar 27 21:42:05 IST 2022 C/AO/274/2018 JUDGMENT DATED: 24/03/2022 provisions before claiming a remand. The appellate court is required to record reasons as to why it has taken recourse to any one out of the three Rules of Order XLI of CPC for remanding the case to the trial court. In the absence of any ground taken by the respondents (appellants before the first appellate court and High Court) before the first appellate court and the High Court as to why the remand order in these cases is called for and if so under which Rule of Order XLI of CPC and further in the absence of any finding, there was no justification on the part of the High Court to remand the case to the trial court. The High Court instead should have decided the appeals on merits. We, however, do not consider proper to remand the case to High Court for deciding the appeals on merits and instead examine the merits of the case in these appeals."
9. In case of Arockiaprakash v. Rangasamy (Supra), the Madras High Court, in Para-9, has held as under:
"9. The catena of judgments reiterate the following principles of law that the order of remand cannot be passed by the Appellate Court as a matter of course. Remand is permissible only when the Appellate Court in the interest of justice feels that the remand is just and appropriate and that the Appellate Court should arrive at a specific finding on the materials available on record that the judgment of the Trial Court is erroneous and liable to be set aside, which is a conditional precedent. The Appellate Court should not remand the case on the ground that the evidence is not properly assessed. Order of remand should not be made when the defect in the proceeding has been due to Page 11 of 28 Downloaded on : Sun Mar 27 21:42:05 IST 2022 C/AO/274/2018 JUDGMENT DATED: 24/03/2022 negligence or default of the party, who will benefit by the remand. The order of remand should not be made to fill up a lacuna by allowing the party to adduce evidence. If it is possible for the Appellate Court to evaluate the oral and documentary evidence, then it is not open to the Appellate Court to come to the aid of the parties to fill up the lacuna in the evidence. If material particulars are available, the Appellate Court itself should decide the matter one way or the other. Remanding the matter for fresh adjudication gives the litigation a fresh lease of life in the protraction of proceedings."
10. In case of Savita Garg (Smt) v. Director, National Heart Institute (supra), the Paras 15 and 16 read as under:
"15. Therefore, as per the English decisions also the distinction of 'contract of service' and 'contract for service', in both the contingencies the courts have taken the view that the hospital is responsible for the acts of their permanent staff as well as staff whose services are temporarily requisitioned for the treatment of the patients. Therefore, the distinction which is sought to be pressed into service so ably by learned counsel cannot absolve the hospital or the institute as it is responsible for the acts of its treating doctors who are on the panel and whose services are requisitioned from time to time by the hospital looking to the nature of the diseases. The hospital or the institute is responsible and no distinction could be made between the two classes of persons i.e. the treating doctor who was on the staff of the hospital and the nursing staff and the doctors whose services were temporarily taken for Page 12 of 28 Downloaded on : Sun Mar 27 21:42:05 IST 2022 C/AO/274/2018 JUDGMENT DATED: 24/03/2022 treatment of the patients. On both, the hospital as the controlling authority is responsible and it cannot take the shelter under the plea that treating physician is not impleaded as a party, the claim petition should be dismissed. In this connection, a reference may be made to a decision of this Court in the case of Indian Medical Association v. V.P. Shantha & ors. reported in AIR 1996 SC 550. There the question had come up before this Court with regard to the provisions of the Consumer Protection Act, 1986 vis-`-vis the medical profession. This Court has dealt with all aspects of medical profession from every angle and has come to the conclusion that the doctors or the institutes owe a duty to the patients and they cannot get away in case of lack of care to the patients. Their Lordships have gone to the extent that even if the doctors are rendering services free of charge to the patients in the Government hospitals, the provisions of the Consumer Protection Act apply since the expenses of running the said hospitals are met by appropriation from the Consolidated Fund which is raised from the taxes paid by the tax payers. Their Lordships have dealt with regard to the definition of "service" given in Section 2(1)(o) of the Consumer Protection Act, 1986, and have observed as follows:
" The service rendered free of charge to patients by doctors/ hospitals whether non- Govt. or Govt. who render free service to poor patients but charge fee for services rendered to other patients would, even though it is free, not be excluded from definition of service in S.2(1)(o).The Act seeks to protect the interests of consumers as a class. To hold otherwise would mean that the protection of the Act would be available to only those who can afford to pay and such protection would be denied to those who cannot so afford, though they are the people who need the Page 13 of 28 Downloaded on : Sun Mar 27 21:42:05 IST 2022 C/AO/274/2018 JUDGMENT DATED: 24/03/2022 protection more. It is difficult to conceive that the legislature intended to achieve such a result. Another consequence of adopting a construction, which would restrict the protection of the Act to persons who can afford to pay for the services availed by them and deny such protection to those who are not in a position to pay for such services, would be that the standard and quality of services rendered at an establishment would cease to be uniform. It would be of a higher standard and of better quality for persons who are in a position to pay for such service while the standard and quality of such service would be inferior for person who cannot afford to pay for such service and who avail the service without payment. Such a consequence would defeat the object of the Act. All persons who avail the services by doctors and hospitals who give free service to poor patients but charge fee for others, are required to be treated on the same footing irrespective of the fact that some of them pay for the service and others avail the same free of charge. Most of the doctors and hospitals work on commercial lines and the expenses incurred for providing services free of charge to patients who are not in a position to bear the charges are met out of the income earned by such doctors and hospitals from services rendered to paying patients. The Government hospitals may not be commercial in that sense but on the overall consideration of the objectives and the scheme of the Act it would not be possible to treat the Government hospitals differently. In such a situation the persons belonging to "Poor class" who are provided services free of charge are the beneficiaries of the service which is hired or availed of by the "paying class". Service rendered by the doctors and hospitals who render free service to poor patients and charge fees for others irrespective of the fact that part of the service is rendered free of charge, would nevertheless fall within the ambit of the expression "service" as defined in Section 2(1)(o) of the Act."
16. Therefore, the distinction between the 'contract of service' and 'contract for service' has been very elaborately discussed in the above case and this Court has extended the provisions of the Consumer Protection Act, 1986, to the Page 14 of 28 Downloaded on : Sun Mar 27 21:42:05 IST 2022 C/AO/274/2018 JUDGMENT DATED: 24/03/2022 medical profession also and included in its ambit the services rendered by private doctors as well as the Government Institutions or the non- Governmental institutions, be it free medical services provided by the Government Hospitals. In the case of Achutrao Haribhau Khodwa & Ors. v. State of Maharashtra & Ors. reported in (1996) 2 SCC 634, Their Lordships observed that in cases where the doctors act carelessly and in a manner which is not expected of a medical practitioner, then in such a case an action on torts would be maintainable. Their Lordships further observed that if the doctor has taken proper precaution and despite that if the patient does not survive then the Court should be very slow in attributing negligence on the part of the doctor. It was held as follows:
" A medical practitioner has various duties towards his patient and he must act with a reasonable degree of skill and knowledge and must exercise a reasonable degree of care. This is the least which a patient expects from a doctor. The skill of medical practitioners differs from doctor to doctor. The very nature of the profession is such that there may be more than one course of treatment which may be advisable for treating a patient. Courts would indeed be slow in attributing negligence on the part of a doctor if he has performed his duties to the best of his ability and with due care and caution. Medical opinion may differ with regard to the course of action to be taken by a doctor treating a patient, but as long as a doctor acts in a manner which is acceptable to the medical profession and the court finds that he has attended on the patient with due care, skill and diligence and if the patient still does not survive or suffers a permanent ailment, it would be difficult to hold the doctor to be guilty of negligence. But in cases where the doctors act carelessly and in a manner which is not expected of a medical practitioner, then in such a case an action in torts would be maintainable."Page 15 of 28 Downloaded on : Sun Mar 27 21:42:05 IST 2022
C/AO/274/2018 JUDGMENT DATED: 24/03/2022 Similarly, our attention was invited to a decision in the case of Spring Meadows Hospital & Anr. v. Harjol Ahluwalia K.S. Ahluwalia & Anr. reported in (1998) 4 SCC 39. Their Lordships observed as follows:
" Very often in a claim for compensation arising out of medical negligence a plea is taken that it is a case of bona fide mistake which under certain circumstances may be excusable, but a mistake which would tantamount to negligence cannot be pardoned. In the former case a court can accept that ordinary human fallibility precludes the liability while in the latter the conduct of the defendant is considered to have gone beyond the bounds of what is expected of the skill of a reasonably competent doctor."
Therefore, as a result of our above discussion we are opinion that summary dismissal of the original petition by the Commission on the question of non-joinder of necessary parties was not proper. In case, the complainant fails to substantiate the allegation, then the complaint will fail. But not on the ground of non-joinder of necessary party. But at the same time the hospital can discharge the burden by producing the treating doctor in defence that all due care and caution was taken and despite that patient died. The hospital/Institute is not going to suffer on account of non- joinder of necessary parties and Commission should have proceeded against hospital Even otherwise also the Institute had to produce the concerned treating physician and has to produce evidence that all care and caution was taken by them or their staff to justify that there was no negligence involved in the matter. Therefore, nothing turns in not impleading the treating doctor as a party. Once an allegation is made that the patient was admitted in a Page 16 of 28 Downloaded on : Sun Mar 27 21:42:05 IST 2022 C/AO/274/2018 JUDGMENT DATED: 24/03/2022 particular hospital and evidence is produced to satisfy that he died because of lack of proper care and negligence, then the burden lies on the hospital to justify that there was no negligence on the part of the treating doctor/ or hospital. Therefore, in any case, the hospital which is in better position to disclose that what care was taken or what medicine was administered to the patient. It is the duty of the hospital to satisfy that there was no lack of care or diligence. The hospitals are institutions, people expect better and efficient service, if the hospital fails to discharge their duties through their doctors being employed on job basis or employed on contract basis, it is the hospital which has to justify and by not impleading a particular doctor will not absolve the hospital of their responsibilities".
11. In case of Lakhi Prasad Fogla v. Murlidhar Marwari and Other (Supra), the Patna High Court has observed as under:
"7. The plea of the appellant that the suit suffered from the defect of non-joinder of the widow of defendant No. 1 Bansidhar Fogla, as already stated, was not taken by him in the trial Court as provided for under Order 1, Rule 13, Code of Civil Procedure. All objections on the ground of non- joinder or mis-joinder of parties should be taken at the earliest opportunity or, at least, at the time of settlement of issues or before such settlement. In the instant case, as would appear from the preceding paragraphs, no objection on the ground of non-joinder of the widow was raised either at the time the issues were settled (in this case the issues were settled twice over) or even later. As a matter of fact, the appellant did not raise any objection on this score at any earlier stage. It has been raised for the first time before me Page 17 of 28 Downloaded on : Sun Mar 27 21:42:05 IST 2022 C/AO/274/2018 JUDGMENT DATED: 24/03/2022 in second appeal. In Jagdish Chandra Sinha v. Dr. Kameshwar Singh, AIR 1953 Pat 178 it was laid down by a Division Bench of this Court that "it is essential that where an objection is raised to the frame of the suit on account of defect of parties it should be done at the earliest possible opportunity and the names of persons omitted should be specifically mentioned so as to enable the other side to add those persons as parties to the suit if necessary. If this is not done, the objection would be deemed to have been waived, and the fundamental rule is that no suit shall be defeated by reason of the mis-joinder or non-joinder of the parties". The other aspect of the question is that the appellant did not raise any objection on the score of abatement earlier than the 19th of December, 1963, when almost all the witnesses on behalf of the respondent were examined. By his conduct, he permitted the trial Court to carry on the suit on the understanding that the estate of the deceased (defendant No. 1 Bansidhar Fogla) was fully represented by his son defendant No. 2 Lakhi Prasad Fogla. If as a consequence of the death of defendant No. 1 Bansidhar Fogla, the appellant was of the view that the estate of Bansidhar was not fully represented by him, and in order to secure full representation it was necessary to bring on record his widow, he could and ought to have intimated this to the Court. This not having been done amounts to putting a premium on fraud to hold that he was entitled to conceal certain facts from the Court and then, on the basis of those facts, to assert abatement of the appeal as necessary parties were not before the Court (see Balgajan Rai v. Sukhu Rai, AIR 1948 Pat 288). For the reasons stated above, there is no force in the first submission of learned Counsel."Page 18 of 28 Downloaded on : Sun Mar 27 21:42:05 IST 2022
C/AO/274/2018 JUDGMENT DATED: 24/03/2022
12. In case of J. Balaji Singh V. Diwakar Cole and Others (Supra), the Paras-16, 17 and 18 read as under:
"16. In our considered view, the only error which the first Appellate Court committed was that it went on to record the findings on merits. In our view, it was not necessary to do so while passing the order of remand. The reason is that once the first Appellate Court formed an opinion to remand the case, it was required to give reasons in support of the remand order as to why the remand is called for in the case. Indeed, the remand was made only to enable the Trial Court to decide the case on merits. Therefore, there was no need to discuss much less record findings on several issues on merits. It was totally uncalled for.
17. So far as the impugned order is concerned, the High Court, in our view, committed jurisdictional error when it also again examined the case on merits and set aside the judgment of the first Appellate Court and restored the judgment of the Trial Court. The High Court, in our opinion, should not have done this for the simple reason that it was only examining the legality of the remand order in an appeal filed under Order 43 Rule 1(u) of the Code. Indeed, once the High Court came to a conclusion that the remand order was bad in law then it could only remand the case to the first Appellate Court with a direction to decide the first appeal on merits.
18) The High Court failed to see that when the first Appellate Court itself did not decide the appeal on merits and considered it proper to remand the case to the Trial Court, a fortiori, the High Court had no jurisdiction to decide the appeal on merits.
Moreover, Order 43 Rule 1(u) confers limited power on the High Court to examine only the legality and correctness of the remand order of the first Appellate Court but not beyond that. In other words, the High Court should have seen that Order 43 Rule 1(u) gives a limited power to examine the issue relating to legality of Page 19 of 28 Downloaded on : Sun Mar 27 21:42:05 IST 2022 C/AO/274/2018 JUDGMENT DATED: 24/03/2022 remand order, as is clear from Order 43 Rule 1(u) which reads thus:- "1(u) an order under rule 23 or rule 23A of Order XLI remanding a case, where an appeal would lie from the decree of the Appellate Court"
13. In case of C.N.Ramappa Gowda V. C.C. Chandregowda (Supra), the Apex Court has held as under:
25. We find sufficient assistance from the apt observations of this Court extracted hereinabove which has held that the effect of non-filing of the written statement and proceeding to try the suit is clearly to expedite the disposal of the suit and is not penal in nature wherein the defendant has to be penalised for non filing of the written statement by trying the suit in a mechanical manner by passing a decree. We wish to reiterate that in a case where written statement has not been filed, the Court should be a little more cautious in proceeding under Order 8 Rule 10 CPC and before passing a judgement, it must ensure that even if the facts set out in the plaint are treated to have been admitted, a judgement and decree could not possibly be passed without requiring him to prove the fact pleaded in the plaint.
14. Jegannathan V. Raju Sigamani and another (Supra), the Apex Court, in Para-11, has observed as under:
11. The High Court relied upon a decision of this Court in the case Narayanan Vs. Kumaran & Ors. (2004) 4 SCC 26 in holding that Civil Miscellaneous Appeal from the order of remand was not maintainable. The High Court was clearly in error. What has been held by this Court in Narayanan is that an appeal under Order 43 Rule 1 Clause (u) should be heard only on the ground enumerated in Section 100 of the Code. In other words, the constraints of Section 100 continue to be attached to an appeal under Order 43 Rule 1(u). The appeal under Order 43 Rule 1(u) Page 20 of 28 Downloaded on : Sun Mar 27 21:42:05 IST 2022 C/AO/274/2018 JUDGMENT DATED: 24/03/2022 can only be heard on the grounds a second appeal is heard under Section 100.
15. Having considered the submissions on behalf of both the sides and the material placed on record as well as the decisions relied upon by both the sides, it is not in dispute that the plaintiff has filed the Suit for compensation against the defendant alleging that due to medical negligence on the part of Doctor of defendant, her husband has died. It reveals from the material placed on record by way of paper-book that initially the suit was filed as Special Civil Suit and thereafter due to enhancement of pecuniary jurisdiction of the trial Court, the Suit came to be transferred to another Court and was registered as Regular Civil Suit. It transpires from the record that summons was already served to the defendant and it had engaged advocate. Thereafter, written statement was not filed before the trial Court and plaintiff filed her affidavit in lieu of Chief- Examination. It is also revealed that none has appeared for the defendant and did not cross-examined the plaintiff and ultimately on the basis of the evidence produced by the plaintiff, the trial Court has passed the decree in favour of the plaintiff and against the defendant. Page 21 of 28 Downloaded on : Sun Mar 27 21:42:05 IST 2022 C/AO/274/2018 JUDGMENT DATED: 24/03/2022
16. The defendant has challenged the said by way of filing the aforesaid Appeal No. 89 of 2017 before the First Appellate Court i.e District Court, Vadodara. The defendant, inter alia, has also raised the ground of non-joining of necessary party i.e. Doctor and has also raised the point of remand. Ultimately after hearing both the sides, the First Appellate Court while relying upon the provisions of Order 18 Rule 4 of CPC and the fact that after transfer of the Suit from one Court to another Court, though there was mention in the Rojkam that notice to be issued to the defendant, in fact no such notice was issued and served to the defendant and on that basis has ultimately set aside the judgment and decree of the trial Court and has remanded the matter back to the trial Court for providing opportunity of filing written statement and for leading evidence thereof to the defendant with liberty to the plaintiff to lead further evidence if it so desire.
17. At this juncture it is worthwhile to refer the decision of the Apex Court in case of Jegannathan V. Raju Sigamani and another,(Supra) wherein the Paras-5, 6, 7 and 8 are relevant, for deciding the present matter, which read as under:
"5. Order 41 of the Code provides for appeals from original Page 22 of 28 Downloaded on : Sun Mar 27 21:42:05 IST 2022 C/AO/274/2018 JUDGMENT DATED: 24/03/2022 decrees. The Code empowers the appellate Court to order remand in three situations. These three situations are covered by Order 41 Rule 23, Order 41 Rule 23A and Order 41 Rule 25 which read as under:
23. Remand of case by Appellate Court - µ Where the Court from whose decree an appeal is preferred has disposed of the suit upon a preliminary point and the decree is reversed in appeal, the Appellate Court may, if it thinks fit, by order remand the case, and may further direct what issue or issues shall be tried in the case so remanded, and shall send a copy of its judgment and order to the Court from whose decree the appeal is preferred, which directions to re-admit the suit under its original number in the register of civil suits, and proceed to determine the suit; and the evidence (if any) recorded during the original trial shall, subject to all just exceptions, be evidence during the trial after remand.
23-A. Remand in other cases -- Where the Court from whose decree an appeal is preferred has disposed of the case otherwise than on a preliminary point, and the decree is reversed in appeal and a retrial is considered necessary, the Appellate Court shall have the same powers as it has under rule 23.
25. Where Appellate Court may frame issues and refer them for trial to court whose decree appealed from --µ Where the court from whose decree the appeal is preferred has omitted to frame or try any issue, or to determine any question of fact, which appears to the Appellate Court essential to the right decision of the suit upon the merits, the Appellate Court may, if necessary, frame issues, and refer the same for trial to the court from whose decree the appeal is preferred and in such case Page 23 of 28 Downloaded on : Sun Mar 27 21:42:05 IST 2022 C/AO/274/2018 JUDGMENT DATED: 24/03/2022 shall direct such court to take the additional evidence required; and such court shall proceed to try such issues, and shall return the evidence to the Appellate Court together with its findings thereon and the reasons there for within such time as may be fixed by the Appellate Court or extended by it from time to time.
6. Order 41 Rule 23 is invocable by the appellate Court where the appeal has arisen from the decree passed on a preliminary point. In other words, where the entire suit has been disposed of by the trial Court on a preliminary point and such decree is reversed in appeal and the appellate Court thinks proper to remand the case for fresh disposal. While doing so, the appellate Court may issue further direction for trial of certain issues.
7. Order 41 Rule 23A has been inserted in the Code by Act No. 104 of 1976 w.e.f. February 1, 1977. According to Order 41 Rule 23A of the Code, the appellate Court may remand the suit to the trial Court even though such suit has been disposed of on merits. It provides that where the trial Court has disposed of the Suit on merits and the decree is reversed in appeal and the appellate Court considers that retrial is necessary, the appellate Court may remand the suit to the trial Court.
8. Insofar as Order 41 Rule 25 of the Code is concerned, the appellate Court continues to be in seisin of the matter; it calls upon the trial Court to record the finding on some issue or issues and send that finding to the appellate Court. The power under Order 41 Rule 25 is invoked by the appellate Court where it holds that the trial Court that passed the decree omitted to frame or try any issue or determine any question of fact essential to decide the matter finally. The appellate Court while remitting some issue or issues, may direct the trial Court to take additional evidence on such issue/s.
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18. Thus, the First Appellate Court has been bestowed with the power under Order 41 Rule 23A of the CPC to remand the suit to the trial Court even though such Suit has been disposed of on merits. It clearly provide therein that when the trial Court has disposed of the Suit on merits and the decree is reversed in Appeal and if the Appellate Court considered re-trial is necessary, the Appellate Court can remand the Suit to the trial Court.
19. Now, considering the facts of the present case, it clearly transpires that even from the Rojkam, it appears that after transfer of the suit from one Court to another Court, there is a mention of issuance of notice to the defendant. However, there is no material in the record to show that actual notice was issued to the defendant. On perusal of Rojkam proceedings dated 2.11.2015, there is a mention that issues have been framed and necessary notice to be issued to the party concerned, returnable on 23.12.2015. On perusal of the successive proceedings dated 23.12.2015 and onward, it appears that there is no mention as to any issuance of such notice and service thereof to the parties concerned. Even in other proceedings also, there is order of Page 25 of 28 Downloaded on : Sun Mar 27 21:42:05 IST 2022 C/AO/274/2018 JUDGMENT DATED: 24/03/2022 issuance of notice to the defendant but except on one occasion i.e. 10.5.2016, no notice seems to have been issued to the defendant and served to the defendant. It appears from the impugned order of the First Appellate Court that the First Appellate Court has taken into consideration all these aspects. At this juncture, it needs to be observed that the plaintiff has relied upon the notice dated 10.5.2016 issued to the defendant (Exh-35) for his argument that due notice was issued to the defendant. A copy of the same is placed in the paper-book at Page-48. On perusal of the same, it appears that this Notice states only regarding the fact that suit has came to be transferred to that Court, but, it was not mentioned therein that issues have been framed and affidavit in lieu of Chief-examination has been filed by the plaintiff. It is merely a notice, conveying to the defendant that suit has been transferred to that Court and the date of next hearing is 15.6.2016. Thus, proper notice and opportunity of being heard was not provided to the defendant.
20. Now, so far as non-compliance of Order 18 Rule 4 is concerned, it appears that though the plaintiff has supplied Page 26 of 28 Downloaded on : Sun Mar 27 21:42:05 IST 2022 C/AO/274/2018 JUDGMENT DATED: 24/03/2022 a copy of the affidavit in lieu of Chief - Examination, the same has not been received by the defendant. At this juncture, it is pertinent to note that when the notice at Exh- 35 was issued to the defendant, a copy of the examination in lieu of Chief Examination was very much before the Court and the Court ought to have send it to the defendant. If such course of action has been adopted then there was no any occasion for the defendant to raise grievance that it has not received the copy of the affidavit in lieu of the Chief Examination of the Plaintiff. However, if any advocate is representing the defendant, generally, the advocate of the other side would definitely receive it and there would be proper balance of Order 18 Rule 4 of CPC. But considering the peculiar facts of this case, the Suit came to be transferred from one Court to another Court and, thereafter, no proper notice was served neither to the learned advocate for the defendant nor to the defendant by the concerned Court. Therefore, exercise of power under Order 41 Rule 23(A) of CPC by First Appellate Court cannot be said to be illegal one.
21. Considering overall facts and circumstance of the present Page 27 of 28 Downloaded on : Sun Mar 27 21:42:05 IST 2022 C/AO/274/2018 JUDGMENT DATED: 24/03/2022 case, the impugned order of the First Appellate Court cannot be said to be perverse one or arbitrary one. Therefore, the same is sustainable in the eyes of law and the present Appeal is devoid of merits.
22. In view of the aforesaid discussions, the present Appeal from Order is hereby dismissed. The impugned order dated 12.5.2018 passed by learned 7th Additional District Judge, Vadodara passed in Regular Civil Appeal No. 89 of 2017 is hereby confirmed.
23. In view of the fact that original suit is of the year 1992, the trial Court is hereby directed to see to it that the Suit is expedited and disposed of as early as possible, preferably on or before 31.7.2022. The parties are directed to cooperate with the trial Court for early disposal of the Suit.
No order as to costs.
Trial Court be informed accordingly.
In view of the above, the Civil Application does not survive and the same stands disposed of accordingly.
(DR. A. P. THAKER, J) SAJ GEORGE Page 28 of 28 Downloaded on : Sun Mar 27 21:42:05 IST 2022