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2023 Supreme(Del) 969
IN THE HIGH COURT OF DELHI AT NEW DELHI
Chandra Dhari Singh, J.
Ramola Bhuyan – Appellant
Versus
Max Healthcare Institute Limited & Ors. – Respondents
CS(OS) 2879 of 2011
Decided On : 23-03-2023
Mr. Manish Jha and Mr. Pranav Tanwar, Advocates, for the Plaintiff.
Mr. Rohit Puri, Advocate, for the Defendant-1 and 3.
The court emphasized that the power to reject a complaint under Order VII Rule 11 of the Code of Civil Procedure is of a severe nature and can only be exercised if the allegations in the complaint do not appear to provide a cause of action or if the claim appears to be precluded by law.
Headnote:
Order VII Rule 11 - Application to Strike off Defendant No.1 - Code of Civil Procedure, 1908 - Order VII Rule 11
Fact of the Case:
The defendant No.1 filed an application seeking to strike off their name from the array of parties, claiming that they were erroneously included in a medical negligence suit as the surgery in question was performed at a different hospital.
Finding of the Court:
The court found that the issue of deletion of defendant No.1 required adjudication as previously observed, and the instant application was devoid of merit and dismissed.
Issues: The main issue was whether the defendant No.1 should be removed from the list of parties in the medical negligence suit.
Ratio Decidendi: The court's decision was based on the fact that the question of whether the hospital by which negligence is alleged is of the defendant No.1 or not cannot be decided without recording of the evidence, and the instant application was found to be devoid of any merit.
Final Decision: The court dismissed the instant application as being devoid of any merit.
ORDER
Chandra Dhari Singh, J. (Oral)
I.A. 3261/2022 (Under Order VII Rule 11 read with Order I Rule 10)
1. The instant application under Order VII Rule 11 read with Order I Rule 10 of the Code of Civil Procedure, 1908 (hereinafter referred to as "CPC") has been filed on behalf of defendant no. 1 seeking the following reliefs;
"a. Strike off/delete the name of the Defendant No.1 from the array of parties;
b. Reject the suit qua the Defendant No.1;
c. Pass such other or further order(s) as this Hon'ble Court may deem fit and proper in the present case."
2. Learned counsel appearing on behalf of the applicant/defendant No. 1 submitted that the plaintiff claims that the surgery conducted by defendant No. 2 on 10th April, 2008, was negligent. It is further submitted that the Devki Devi Heart and Vascular Institute is a hospital owned by the Devki Devi Foundation i.e. a society formed under the Societies Registration Act, 1860.
3. It has been submitted that the defendant No. 1 in accordance with Order I Rule 10 of the CPC filed an application bearing I.A. no. 3536/2012 to have its name removed from the array of parties, whereby, this Court vide order dated 28th February, 2014 determined that the application cannot be considered without recording the evidence.
4. It has been submitted that it was revealed during the plaintiff's testimony that Mr. Jayant Bhuyan had his surgery at the Max Devki Devi Heart and Vascular Institute, which is operated by defendant No. 3 society and since, the aforementioned Max Devki Devi Heart and Vascular Institute is located next to the hospital of the applicant/defendant No. 1, the plaintiff erroneously arrayed the defendant No. 1. It is further submitted that Mr. Jayant Bhuyan's procedure was not performed in defendant No. 1's hospital. In order to support the said contention the learned counsel for the applicant/defendant placed reliance upon the Max Devki Devi Heart and Vascular Institute's surgery notes and discharge summary. The said fact was revealed in the plaintiff's testimony, when she acknowledged taking her spouse to Max Devki Devi Hospital in Saket, i.e., defendant No. 3.
5. It has been submitted on behalf of the applicant/defendant No. 1 that the oral testimony and the documents forged by the plaintiff demonstrate that the plaintiff's spouse underwent bypass surgery at the Max Devki Devi Heart and Vascular Institute. The materials on which the plaintiff has relied demonstrate conclusively that the Max Devki Devi Heart and Vascular Institute, which is controlled by defendant No. 3, is the operational hospital. It is further submitted that the bypass operation performed by the defendant No. 2 in the hospital run by defendant No. 3 did not include defendant No. 1. Resultantly, the plaintiff's complaints are limited to the hospital where the procedure was done and the treating physician.
6. It is submitted that defendant No. 1 is unrelated to the aforementioned enterprise. There is no basis for the plaintiff to bring a claim against defendant No. 1. The defendant no. 1 is Max Super Speciality Hospital (West Block), a hospital owned and operated by Max Healthcare Institute Ltd, a company that was established in accordance with the Companies Act, 1956 and cannot be held accountable for medical care received at other facilities. Only the treating physicians and the hospital where the therapy was provided may be held liable in a case of medical negligence. Therefore, the defendant No. 1 should be removed from the list of parties since they are not a necessary party to the said suit.
7. Learned counsel appearing on behalf of the applicant/defendant No. 1 submitted that only the perpetrator can be held accountable in a tort lawsuit. The disagreement over the procedure between the plaintiff and the defendants No. 2 and 3 is unfamiliar territory for the applicant/defendant No. 1.
8. Per Contra, learned counsel appearing on behalf of the non-applicant/plaintiff submitted that the instant application
