Rajasthan High Court
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
[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
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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.
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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
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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"
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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
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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
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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
[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
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