State of Madhya Pradesh and ors. Vs. Asharam - Court Judgment

Excerpt:
- constitution of india 1055. article 141; [a.k. patnaik, c.j., dipak misra, abhay gohil, s. samvatsar, & s.k. gangele, jj] dismissal of slp arising from decision of high court whether binding precedent decision of division bench in rama and company v. state of madhya pradesh, [2007(ii) mpjr 229] overruled by full bench of same high court prior to delivery of decision of full bench order passed in division bench decision assailed in slp before supreme court dismissal of slp by short reasoned order, though declaration of law, but high court is bound to follow earlier decisions in field regard being had to concept of precedents as per law laid down by apex court and larger bench decision in jabalpur bus operators association, reported in [2003(1) mpjr 158]. court clarifies that dr. jaidev siddha v. jaiprakash siddha, 2007(2) mpjr (fb) 361; air 2007 mp 269 (fb) is not impliedly overruled in view of dismissal of slp articles 226 & 227; [a.k. patnaik, c.j., dipak misra, abhay gohil, s. samvatsar, & s.k. gangele, jj] power to issue writ under article 226 - [per majority] the high courts exercise original jurisdiction under article 226 of the constitution and supervisory jurisdiction and the power of superintendence under article 227 of the constitution. but, an eloquent and fertile one, a writ of certiorari is issued in exercise of original jurisdiction. whenever word supervisory has been used in the context of article 226 it is in contrast with the appellate or revisional jurisdiction. when a writ is issued under article 226 of the constitution in respect of courts or tribunals it is done in exercise of original jurisdiction and the parameters are different than article 227 of the constitution of india. it is worth noting that the power under article 227 was there in a different manner under the government of india act. power of superintendence is distinct from the exercise of power of revisional or supervisory jurisdiction which is a facet of the power of superintendence. the confusion occurs when one applies the principle of equivalence or equates the exercise of supervisory power and power of superintendence with original or supervisory jurisdiction. there is an acceptable nuance between the concept of jurisdiction and exercise of power by certain parameters. both do come within the fundamental concept of judicial review but the jurisdiction exercised is different when under article 226 a writ is issued it is issued in exercise of original jurisdiction whether against a tribunal or inferior courts or administrative authorities. the word superintendence has not been used in article 226 of the constitution. it is also evident that the term writs is not referred to in article 227. on a scrutiny of article 227 it would be crystal clear that power of superintendence conferred on the high courts is a power that is restricted to the courts and tribunal in relation to which it exercises jurisdiction. on the contrary the power conferred on the high court under article 226 is not constricted and confined to the courts and tribunals but it extends to any person or authority. be it noted, article 226 as has been engrafted in the constitution covers entirely a new area, a broader one in a larger spectrum. when the legislature has used the terms in exercise of original jurisdiction and supervisory jurisdiction it has to be understood that they are used in contradistinction in the constitutional context as has been interpreted by the apex court. the words of the section have to be understood to mean exercise of powers under article 226 of the constitution of india which is always original. -- m.p. samaj ke kamjor vargon ke krishi bhumi hadapne sambandhi kuchakron se paritran tatha mukti adhiniyam [3/1977]. section 2: writ appeal maintainability from order of single judge-when permissible held, maintainability of a writ appeal from an order of the learned single judge would depend upon many an aspect and cannot be put into a strait jacket formula. it cannot be stated with mathematical exactitude. it would depend upon the pleadings in the writ petition, nature of the order passed by the single judge, character and the contour of the order, directions issued, nomenclature given and the jurisdictional prospective in the constitutional context are to be perceived. it cannot be said in a hyper-technical manner that an order passed in a writ petition, if there is assail to the order emerging from the inferior tribunal or subordinate courts has to be treated all the time for all purposes to be under article 227 of the constitution of india. it would depend upon the real nature of the order passed by the learned single judge. the pleadings also assume immense significance. it would not be an over emphasis to state that an order in a writ petition can fit into the subtle contour of articles 226 and 227 of the constitution in a composite manner and they can co-inside, co-exist, overlap or imbricate. in this context it is apt to note that there may be cases where the single judge may feel disposed or inclined to issue a writ to do full and complete justice because it is to be borne in mind that article 226 of the constitution is fundamentally a repository and reservoir of justice based on equity and good conscience. it will depend upon factual matrix of each case. dr. jaidev siddha v. jaiprakash siddha, 2007(2) mpjr (fb) 361: air 2007 mp 269 (fb) is not impliedly overruled in view of dismissal of slp preferred against order reported in rama and company v. state of madhya pradesh [2007 (2) mpjr 229 (db) (mp)]. - 1. the unsuccessful defendants have filed this appeal under section 96 of the code of civil procedure against the judgment and decree dated 16.8.1988 rendered by second additional judge to the court of district judge, ratlam in c. the operation was conducted and the respondent was applauded for his submission to operation in national interest. failure of operation and frustration of object are also not disputed. asharam, pw 3, pledged his oath to say that operation, done to him, failed due to negligence of the doctor, an employee of appellant no. it is in such setting that a poor teacher, obsessed to plan his family, was negligently operated upon and treated and left in the lurch to suffer agony and burden, which he was made to believe was avoidable. it gives the situation of adverse inference as well. the prime anxiety, as gathered from the submission, is that if decree is sustained then it may bind like cases and expose the state to onerous liability. 1 and the other appellants is to show concern to proper care and caution, to ensure evidence of omissions and commissions, as stated above, in such matters and to keep the citizens assured, not allured, of proper success. it is felt that such thinking will do immense good to the state as well as the nation.a.r. tiwari, j.1. the unsuccessful defendants have filed this appeal under section 96 of the code of civil procedure against the judgment and decree dated 16.8.1988 rendered by second additional judge to the court of district judge, ratlam in c.o.s. no. 14-b of 1985, thereby awarding compensation of rs. 20,100 with costs and interest at the rate of 6 per cent per annum from the date of decree till payment on rs. 20.000/-.2. facts lie in a narrow compass.the respondent held the post of upper division teacher. on 16.1.84, he offered himself for family planning operation in the primary health centre, sailana. the operation was conducted and the respondent was applauded for his submission to operation in national interest. the operation, however, did not prove beneficial and even after operation, a daughter was born to him on 16.4.85. irked, he issued notice under section 80 of the code of civil procedure. as the demand was not met, he filed the aforesaid civil suit for a decree of damages quantified at rs. 20,000/- and the notice charges of rs. 100/-. he also claimed interest. the appellants opposed the claim. on evaluation of evidence, the learned trial judge granted the decree as noted above.3. dissatisfied by the decree, the appellants have filed this appeal.4. appeal was filed beyond limitation. on 2.11.1989, the delay in presentation of the appeal was condoned.5. the appellants have paid the decretal amount to the respondent.6. the respondent admits receipt of the decretal amount.7. i have heard mr. anand agarwal, learned panel lawyer for the appellants and mr. b.l. pavecha, learned senior counsel with mr. abdul salim for the respondent.8. mr. agarwal submitted that the particulars of damages are not furnished and that the evidence is not properly appreciated. mr. pavecha, on the other hand, dubbed the aforesaid contention as non-meritorious and submitted that the quantification of damages rested on the basis of maintenance of the daughter at the rate of rs. 100/- per month till her attaining majority. according to mr. pavecha, the damages claimed were on the low side because the respondent was not in a position to pay the court fees for higher amount.9. i proceed to examine the worth of rival contentions.10. the family planning operation is not disputed. failure of operation and frustration of object are also not disputed. what is contended is that (a) there was no actionable negligence; (b) the particulars of damage were not pleaded and proved; and (c) the appellants are erroneously held liable to pay the quantified amount by way of damages.11. the learned trial judge concluded as under:xxx xxx xxx12. negligence is the omission to do something which a prudent and reasonable man would do or doing something which such a man would not do. negligence can be inferred from facts and circumstances. [(1938) 2 all er 621, (1918) 2 kb 523, ilr 1969 mp 631 and madhya pradesh state road trans. corpn. v. sudhakar 1977 acj 290 (sc), are pertinent]. lord brightman in furniss v. dawson (1984) 1 all er 530, observed:the fact that the court accepted that each step in a transaction was a genuine step producing its intended legal result did not confine the court to considering each step in isolation for the purpose of assessing the fiscal results.it is thus legal and logical to consider facts and features properly and assess the fiscal result.13. testing evidential material in the light of principles of law, i find that the conclusion is on firm foundation. dr. k.l. yadav, pw 1, deposed that dr. v.k. saxena, dw 2 performed the operation in a camp and indicated the possibility of negligence in operation. sardar singh, pw 2, proved the birth of baby child to asharam, pw 3, respondent-plaintiff and his wife rambhabai, pw 6, on 16.4.1985, i.e., after about 15 months from the date of operation. asharam, pw 3, pledged his oath to say that operation, done to him, failed due to negligence of the doctor, an employee of appellant no. 1 (state of madhya pradesh) and consigned him to suffer mental agony and expenditure of maintenance and marriage, difficult to bear. he stated that this would be more than the sum of rs. 20.000/-. dr. bina mathur, pw 5, also proved the birth of a baby child later named as shraddha. narendra kumar, pw 4, and rambhabai, pw 6, supported the case as put forward. dr. narendra kumar, dw 1, did not state anything of much relevance and consequence. dr. v.k. saxena, dw 2, mainly deposed about procedure and possibility. this is no real rebuttal. the case of actionable negligence is cogently established. estimate of damage, not excessive ex facie, is on the fulcrum of burden of maintenance and marriage. it is not contended that amount of rs. 100/- per month as maintenance is on the higher side. even ignoring the mental agony and collapse of trust as a result of manifest negligence, the quantification is not arbitrary. it is not stated as to what more particulars were necessary and what prejudice is suffered. hence, even second contention as noted above is meritless.14. law is not in tenebrosity. appellants, as held in mangilal v. parasram 1970 acj 86 (mp), cannot escape the liability by preferring hypothetical explanation. in state of rajasthan v. vidhyawati 1958-65 acj 296 (sc), it is laid down that the state is liable for the tortious acts of its employees.15. the material issue stands probabilised. it seems that in camp, the state of madhya pradesh and operating surgeons threw the care and caution to the winds and focussed attention to perform as many operations as possible to build record and earn publicity. it is in such setting that a poor teacher, obsessed to plan his family, was negligently operated upon and treated and left in the lurch to suffer agony and burden, which he was made to believe was avoidable.16. respondent issued the statutory notice but heard nothing. the defence or hypothetical explanation seems to be an afterthought and meretricious.17. true it is that law imposes no obligation to reply the notice but silence, where one should normally speak, is not gold and tells the tale adverse to such person or party. it gives the situation of adverse inference as well. kameshwar lal v. the king air 1948 patna 406, may be referred usefully.18. i have briefly stated about the evidence. as i am in general agreement with the view taken by the trial court, i find it unnecessary to state the effect of the evidence or document the narration in detail. in girijanandini devi v. bijendra narain choudhary air 1967 sc 1124, it is held as under:it is not the duty of appellate court when it agrees with the view of the trial court on the evidence or to reiterate the reasons given by the trial court. expression of general agreement with reasons given by the court decision of which is under appeal would ordinarily suffice.19. in 1948, dinning, j. in robertson v. minister of pensions (1949) 1 kb 227, laid the foundation of promisory estoppel in public law. prof. de smith in his judicial review of administrative action, 4th edn. at page 103, observed that:the citizen is entitled to rely on their having the authority that they have asserted.here the citizen (respondent) believed that the appellants had the authority to hold camps, perform operations and benefit individuals and the nation. now if results are adverse, the appellants should take themselves as estopped from opposing the just claim. law has a promise to keep to justice. where is the scope for acrobats.20. nothing substantial is urged to justify interference in the judgment and decree under impugnment. the decretal amount has already been paid to the respondent. it is thus held that the appellants are rightly held liable to pay the small amount by way of damages. the prime anxiety, as gathered from the submission, is that if decree is sustained then it may bind like cases and expose the state to onerous liability. in my view, such an anxiety is misplaced because decree is being sustained not on point of law but on proof of relevant facts. at bottom, fate of case normally turns on its own peculiar facts.21. in my view, what should really be on the agenda of the appellant no. 1 and the other appellants is to show concern to proper care and caution, to ensure evidence of omissions and commissions, as stated above, in such matters and to keep the citizens assured, not allured, of proper success. it is felt that such thinking will do immense good to the state as well as the nation. the case on hand should serve as a caution in this direction. social service and national cause must call the tune and direct and dictate the course.22. in the circumstances, i do not feel persuaded to vacate the decree. the decree is without fault or flaw. there is no invalidity or illegality. justice is done to the respondent and it is proper for the appellants to bear in mind that law and justice are not distant neighbours. negligence is proved, damages are established and liability is properly adjudicated. this is beyond pale of controversy. the state, wedded to the concept of welfare to its citizens, should spurn litigative urges and feel the surge of an urge to undo the wrong done to a citizen. in the instant case, claim is small and liability is not excessive.23. so viewed i hold that this appeal is devoid of substance and should, therefore, say monosyllabic 'no' to the prayer which appeared to be faint and feeble and which is inappropriate to foul and frown the verdict. the impugnment is found fit to be laid to rest. the finding of fact thus becomes concurrent.24. accordingly, i uphold the decree and dismiss this appeal. however, looking to the nature of contest and controversy, i leave the parties to bear their own costs of this appeal. counsel's fee for each side is, however, fixed at rs. 500/-, if certified.25. a decree be drawn up and record of the court below be returned.