Madhya Pradesh High Court
The State Of Madhya Pradesh vs Index Medical College Hospital And ... on 8 December, 2023
Author: Sushrut Arvind Dharmadhikari
Bench: Sushrut Arvind Dharmadhikari
1
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE SUSHRUT ARVIND DHARMADHIKARI
ON THE 8 th OF DECEMBER, 2023
REVIEW PETITION No. 1268 of 2023
BETWEEN:-
1. THE STATE OF MADHYA PRADESH (RESPONDENT
THROUGH THE SECRETARY, DEPARTMENT OF
PUBLIC HEALTH, VALLABH BHAWAN, BHOPAL)
(M.P.)
2. THE CHIEF EXECUTIVE OFFICER, AYUSHMAN
BHARAT "NIRAMAYAM" DEEN DAYAL
SWASTHYA SURAKASH PARISHAD IEC BUREAU
BUILDING JP HOSPITAL PREMISES BHOPAL
(MADHYA PRADESH)
3. THE GENERAL MANAGER OPERATIONS
AYUSHMAN BHARAT "NIRAMAYAM" DEEN
DAYAL SWASTHYA SURAKASH PARISHAD I.E.C.
BUREAU BUILDING, J.P. HOSPITAL PREMISES,
BHOPAL (MADHYA PRADESH)
4. THE STATE OF HEALTH AGENCY (SHA), THE
CHIEF EXECUTIVE OFFICER, DEEN DAYAL
SWASTHYA SURAKASH PARISHAD I.E.C. BUREAU
BUILDING, J.P. HOSPITAL PREMISES, BHOPAL
(MADHYA PRADESH)
5. THE STATE EMPANELMENT COMMITTEE (SEC)
THROUGH ITS CHAIRMAN, DEEN DAYAL
SWASTHYA SURAKASHA PARISHAD I.E.C.
BUREAU BUILDING, J.P. HOSPITAL PREMISES,
BHOPAL (MADHYA PRADESH)
.....PETITIONERS
(MS. ARCHANA KHER, LEARNED ADDITIONAL ADVOCATE GENERAL
FOR THE PETITIONERS/STATE)
AND
1. INDEX MEDICAL COLLEGE HOSPITAL AND
RESEARCH CENTRE, INDORE THROUGH ITS
MEDICAL SUPERINTENDENT DR. AJAY SINGH
THAKUR S/O SHRI R.N. SINGH, AGED ABOUT 42
Signature Not Verified
Signed by: PREETHA HARI
NAIR
Signing time: 11-12-2023
04:48:28
2
YEARS, OCCUPATIN - SERVICE, INDEX CITY, NH-
59-A NEMAWAR ROAD, POST BAVIIYA KHURD,
KHUDEL, INDORE (MADHYA PRADESH)
(PETITIONER IN THE WRIT PETITION)
2. UNION OF INDIA THROUGH ITS SECRETARY,
DEPARTMENT OF PUBLIC HEALTH AND FAMILY
WELFAR E, NIRMAN BHAWAN, NEW DELHI
(DELHI)
.....RESPONDENTS
(SHRI MANU MAHESHWARI, LEARNED COUNSEL FOR THE
RESPONDENT [R-1].
This petition coming on for admission this day, th e court passed the
following:
ORDER
Heard on I.A. No.9257/2023, which is an application under Section 5 of
the Limitation Act for condonation of delay in filing the review petition.
For the reasons stated in the application, I.A. No.9257/2023 is allowed.
Delay of 137 days is hereby condoned.
Also heard on the question of admission.
The present review petition under Order 47 Rule 1 of Code of Civil
Procedure read with Section 151 of CPC has been filed seeking review of the
order dated 07.07.2023, passed in W.P. No.7484/2023.
The respondent No.1 had filed the Writ Petition No.7484/2023
challenging the order dated 14.03.2023, which is a show cause notice for non-
compliance and violation of the Memorandum of Understanding(MOU) read
alongwith the National Health Authority(NHA) and the State Health
Agency(SHA), guidelines, suspension order dated 21.03.2023, order dated
29.03.2023 whereby the respondent/hospital was de-empanelled.
2. This Court vide order dated 07.07.2023 had allowed the writ petition
by granting the following reliefs :-
18. In view of the aforesaid, the orders impugned i.e. show-
cause notice dated 14.03.2023 (Annexure P/3), suspension
order dated 21.03.2023 (Annexure P/5) and de-empanelment
order dated 29.03.2023 (Annexure P/10) deserves to be and
are hereby set aside. The petition stands allowed.
Respondents are directed to regularize the empanelment of
the petitioner hospital under the "Ayushman Bharat" scheme
and also settle the outstanding bills for treatment extended
to the patients prior to de-empanelment. However, the
respondents would be at liberty to initiate action in
accordance with law, if so advised.
3. Being aggrieved, the petitioners/State had preferred W.A. No.
1370/2023 assailing the order dated 07.07.2023. The Division Bench vide order
dated 30.10.2023 passed the following orders:-
5. After hearing learned counsel for the parties and taking into
consideration that since the matter was decided in absence of reply
on behalf of the appellants and all these submission which are
being raised by this Court were not raised before the learned Single
Judge, it would be appropriate to grant liberty to the appellants to
file review before the learned Single Judge with an application for
grant of stay. Since the interim protection was granted by the Writ
Court by order dated 31.03.2023 not to take any penal action
against the writ petitioner the said interim order not to take any
penal action against the respondent/writ petitioner shall continue
till the review is filed and the application for grant of stay is
considered by the learned Single Judge.
4. The Petitioner/State has filed the present review petition based on the
liberty granted by the writ appellate Court.
5. Learned Additional Advocate General appearing for the
petitioners/State contended that :-
(i) no opportunity of filing the reply was granted to the State. Therefore,
the writ petition could not have been decided in absence of reply.
(ii) no opportunity of hearing was granted before passing the order dated
07.07.2023 thereby, violating the principles of natural justice.
(iii) The relief which was not claimed has been granted to the
respondent(s) herein.
6. Per Contra, learned counsel for the respondent, on advance notice
vehemently opposed the prayer and had produced the entire order-sheets to
show that the matter was listed on five occasions, however, the petitioners no.1
to 5 did not choose to file the reply. However, I.A. No.2504/2023 for vacating
stay was filed which was very exhaustive and in the nature of a detailed reply
consisting of 260 pages. Thereafter, the respondents no.1 to 5 also filed a
written synopsis alongwith various documents to rebut the contentions. In such
a situation, it cannot be said that no time was granted to the State to file its
reply.
7. Learned counsel for the State while arguing the writ petition did not
even seek time to file the reply since the issue involved was already covered in
the vacating stay application as well as synopsis. So far as opportunity of
hearing is concerned, learned counsel for the State appeared at on each and
every hearing. In view of the aforesaid, no apparent error on the face of the
record is made out to interfere in the review petition and the same is liable to be
dismissed.
8. Heard the learned counsel for the parties and perused the record.
9. In our considered opinion, none of the grounds are available for
successfully seeking review as recognized by Order 47 Rule 1 of CPC is made
out in the present case.
10. Admittedly, a detailed vacating stay application alongwith all
documents consisting of 260 pages was filed. Synopsis was also filed alongwith
certain documents. Learned counsel for the State while arguing the writ petition
did not pray for any time to file the reply. However, respondent No.6 had
already filed the reply. Since both the sides were prepared to argue the matter
based on the documents available on record and with their consent the writ
petition was finally heard. The vacating stay application is no less than a reply
since it contains reply to the entire grievances raised in the writ petition as well
as the synopsis filed after the file was reserved and also contains all the
grievances of the contentions which were raised before this Court.
11. It is also not in dispute that the learned counsel for the State appeared
on each and every occasion, but at no point of time prayed for time to file the
reply since the documents were already annexed alongwith application for
vacating stay.
12. This Court has passed a detailed order dated 07.07.2023 and as such
there is no error apparent on the face of the record warranting review. The order
is based on detailed consideration of the documents as well as pleadings of
both the parties. Therefore, this Court is not inclined to entertain the review
petition.
13. The Apex Court in the case of S. Bairathi Amaal Vs. Palani
Roman (2009) 10 SCC 464 has held that in order to seek review, it has to be
demonstrated that the order suffers from an error contemplated under Order 47
Rule 1 CPC which is apparent on the face of record and not an error which is
to be fished out and searched. A decision or order cannot be reviewed merely
because it is erroneous. In another case, the Apex Court in case of State of
West Bengal Vs. Kamal Sengupta (2008) 8 SCC 612 has held that "a party
cannot be permitted to argue de novo in the garb of review."
14. In the case of Shanti Conductors (P) Ltd. Vs. Assam State
Electricity Board & Ors. (P) Ltd. (2020) 2 SCC 677, it is observed and
held that the scope of review under Order 47 Rule 1 CPC read with Section 114
CPC is limited and under the guise of review, the petitioner cannot be permitted
to reagitate and reargue questions which have already been addressed and
decided. It is further observed that an error which is not self-evident and has to
be detected by a process of reasoning, can hardly be said to be an error
apparent on the face of record justifying the court to exercise its power of
review under Order 47 Rule 1 CPC.
15. The Apex Court in the case of Haridas Das Vs. Usha Rani Bank
(Smt) and Ors., reported in (2006) 4 SCC 78 in paragraph 13 and 20 has
held as under :-
"13. In order to appreciate the scope of a review, Section 114
CPC has to be read, but this section does not even adumbrate
the ambit of interference expected of the court since it merely
states that it "may make such order thereon as it thinks fit". The
parameters are prescribed in Order 47 CPC and for the
purposes of this lis, permit the defendant to press for a rehearing
"on account of some mistake or error apparent on the face of the
records or for any other sufficient reason". The former part of the
rule deals with a situation attributable to the applicant, and the
latter to a jural action which is manifestly incorrect or on which
two conclusions are not possible. Neither of them postulate a
rehearing of the dispute because a party had not highlighted all
the aspects of the case or could perhaps have argued them more
forcefully and/or cited binding precedents to the court and
thereby enjoyed a favourable verdict. This is amply evident from
the Explanation to Rule 1 of Order 47 which states that the fact
that the decision on a question of law on which the judgment of
the court is based has been reversed or modified by the
subsequent decision of a superior court in any other case, shall
not be a ground for the review of such judgment. Where the
order in question is appealable the aggrieved party has
adequate and efficacious remedy and the court should exercise
the power to review its order with the greatest circumspection.
This Court in Thungabhadra Industries Ltd. v. Govt. of A.P.1
held as follows: (SCR p. 186).
"[T]here is a distinction which is real, though it might not
always be capable of exposition, between a mere erroneous
decision and a decision which could be characterised as vitiated
by 'error apparent'. A review is by no means an appeal in
disguise whereby an erroneous decision is reheard and
corrected, but lies only for patent error. .... where without any
elaborate argument one could point to the error and say here is a
substantial point of law which stares one in the face, and there
could reasonably be no two opinions entertained about it, a clear
case of error apparent on the face of the record would be made
out."
20. When the aforesaid principles are applied to the background
facts of the present case, the position is clear that the High Court
had clearly fallen in error in accepting the prayer for
review.First, the crucial question which according to the High
Court was necessary to be adjudicated was the question whether
Title Suit No. 201 of 1985 (sic 1 of 1986) was barred by the
provisions of Order 2 Rule 2 CPC. This question arose in Title
Suit No. 1 of 1986 and was irrelevant so far as Title Suit No. 2 of
1987 is concerned. Additionally, the High Court erred in holding
that no prayer for leave under Order 2 Rule 2 CPC was made in
the plaint in Title Suit No. 201 of 1985. The claim of oral
agreement dated 19-8-1982 is mentioned in para 7 of the plaint,
and at the end of the plaint it has been noted that the right to
institute the suit for specific performance was reserved. That
being so, the High Court has erroneously held about infraction
of Order 2 Rule 2 CPC. This was not a case where Order 2 Rule
2 CPC has any application."
16. On perusal of the record and in the light of the judgments passed in
the case of S. Bairathi Amaal and State of West Bengal (supra), there is no
error apparent on the face of record warranting interference in the order
impugned.
17. The review petition fails and is, accordingly, dismissed.
(S. A. DHARMADHIKARI)
JUDGE
pn
