Dr. Rajasekharan Nair v. Nimmy and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH** **TUESDAY, THE 27TH JULY 2010 / 5TH SRAVANA 1932** ## **WP(C).NO. 20646 OF 2010(O)** **----------------------------------------AGAINST THE ORDER DATED 22/06/2010 IN IA 3213/2010 IN OS.51/1997 OF II ADDL.SUB COURT,TRIVANDRUM** **PETITIONER(S):** - **------------------------** **DR.RAJASEKHARAN NAIR, NOW RESIDING AT TC 5/2548(1), NIRANAJANA, KRISHNA GARDENS, GOLF LINKS, KOWDIAR, THIRUVANANTHAPURAM-695 003.** **BY ADV. SRI.ANIL K.NARENDRAN** ## **RESPONDENT(S):** - **-----------------------** **1. NIMMY, AGED 21 YEARS,** - **D/O.LATE NALINI DEVI, VILAYIL PUTHEN VEEDU, TC 11/836, YMR JUNCTION, NANTHANCODE, KOWDIAR VILLAGE, THIRUVANANTHAPURAM-695 003.** **2. MOHANAN, AGED 52 YEARS,** - **S/O.CHELLAPPAN PILLAI, VILAYIL PUTHEN VEEDU, TC 11/836, YMR JUNCTION, NANTHANCODE, KOWDIAR VILLAGE, THIRUVANANTHAPURAM-695 003.** **3. RAJAMMA, AGED 78 YEARS, W/O.LATE PARAMESHWARAN PILLAI, VILAYIL PUTHEN VEEDU, TC 11/836, YMR JUNCTION, NANTHANCODE, KOWDIAR VILLAGE, THIRUVANANTHAPURAM-695 003.** **4. STATE OF KERALA, REP. BY THE CHIEF SECRETARY TO GOVERNMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM695 001.** **5. DR.INDIRA BAI AMMA,** - **(FORMERLY RMO, W&C HOSPITAL, THIRUVANANTHAPURAM), NOW RESIDING AT TC 5/1970, SREEKRISHNA LANE, KOWDIAR, THIRUVANANTHAPURAM-695 003.** **ADV. SRI.M.SREEKUMAR FOR R2** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 27/07/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **APPENDIX** ## **---------------** ## **PETITIONER'S EXHIBITS:** ## **---------------------------------** **EXHIBIT P1 TRUE COPY OF O.P.(IND.) NO.46 OF 1991 DATED 15.2.1991 FILED BEFORE THE II ADDITIONAL SUB COURT, THIRUVANANTHAPURAM.** **EXHIBIT P2 TRUE COPY OF PLAINT DATED 3.10.1996 IN O.S. NO.51 OF 1997 ON THE FILE OF THE II ADDITIONAL SUB COURT, THIRUVANANTHAPURAM.** **EXHIBIT P3 TRUE COPY OF THE WRITTEN STATEMENT DATED 13.1.2000 FILED BY PETITIONER/3[RD] DEFENDANT IN O.S. NO.51 OF 1997.** **EXHIBIT P4 TRUE COPY OF ORDER DTD 25.3.2004 IN I.A. NO.5669 OF 2003 IN O.S. NO.51 OF 1997.** **EXHIBIT P5 TRUE COPY OF ORDER DATED 2.1.2007 OF THIS HONOURABLE COURT IN C.R.P. NO.716 OF 2004.** **EXHIBIT P6 TRUE COY OF I.A. NO.3213 OF 2010 DATED 8.6.2010 FILED BY THE PLAINTIFFS IN O.S. NO.51 OF 1997.** **EXHIBIT P7 TRUE COPY OF STATEMENT OF OBJECTION DATED 10.6.2010 FILED BY THE PETITIONER HEREIN IN I.A. NO.3213 OF 2010.** **EXHIBIT P8 TRUE COPY OF ORDER DATED 22.6.2010 IN I.A. NO.3213 OF 2010 OF THE II ADDITIONAL SUB COURT, THIRUVANANTHAPURAM.** **RESPONDENT'S EXHIBITS:** **----------------------------------NIL** **TRUE COPY** ## **THOMAS P.JOSEPH, J.** **==================================== W.P(C) NO.20646 of 2010 ==================================== Dated this the 27[th] day of July, 2010** ## **J U D G M E N T** Defendant No.3 in O.S. No.51 of 1997 of the court learned Additional Sub Judge, Thiruvananthapuram has come up with this Writ Petition challenging Ext.P6, order allowing amendment of plaint to enhance the claim for compensation from Rs.3 lakhs to Rs.10 lakhs based on certain subsequent developments. Parties are referred to as plaintiffs and defendants as in the trial court for convenience. 2. Plaintiffs filed Ext.P1, O.P(Ind.) No.46 of 1991 against defendants in the court below claiming damages to the tune of Rs.3 lakhs alleging that on account of indigency they are not able to pay court fee payable on that claim. It is the case of plaintiffs that on account of negligence of defendant Nos.2 and 3 in performing cesarean operation on original plaintiff No.1 (Nalini Devi) on 29.11.1988 she suffered injury. It is also stated that on account of negligence or defective operation plaintiff No.2, the child also suffered permanent disability. Accordingly, plaintiffs claimed compensation. Plaintiffs were permitted to sue as indigent ## **W.P(C) No.20646 of 2010** ## -: 2 :- persons and the case was registered as O.S. No.51 of 1997. It would appear that as directed by learned Sub Judge plaintiffs produced a fresh plaint while Ext.P1, Original Petition remained in tact. While so, suit as against defendant No.2 happened to be dismissed for want of steps and that was restored to file. Defendant No.2 challenged that order in W.P(C) No.24883 of 2007 which this Court dismissed on 11.2.2010 Order restoring the suit as against defendant No.2 was confirmed. As per order on I.A. No.5669 of 2003 learned Sub Judge observed that Ext.P1, Original Petition will be treated as the plaint. While so plaintiff No.2 and 3 (plaintiff No.1 – Nalini Devi died on 16.2.2003) filed I.A. No.3213 of 2010 on 8.6.2010 seeking amendment of plaint to incorporate paragraphs 22(A) and 22(B) alleging that on account of the after effects of the defective operation plaintiff No.1-Nalini Devi died on 16.2.2003 and that plaintiff No.2 has also suffered serious disability on account of the said act. Compensation claimed was sought to be enhanced to Rs.10,00,000/-. Before that application was filed, plaintiffs had issued a notice to the defendants claiming enhanced compensation. Defendants opposed I.A. No.3213 of 2010 on various grounds. Learned Sub Judge vide Ext.P8, order has allowed the application and ## **W.P(C) No.20646 of 2010** ## -: 3 :- permitted plaintiffs to incorporate paragraphs 22(A) and 22(B) in the plaint. That order is under challenge in this Writ Petition at the instance of defendant No.3. Learned counsel for petitioner raised the following contentions: (1) Relief sought to be incorporated by way of amendment has become barred by limitation and hence learned Sub Judge was not correct in allowing those reliefs to be incorporated by way of amendment which prejudiced interest of defendants. (2) In Ext.P4, order learned Sub Judge had directed that Ext.P1 will be treated as plaint. That plaint contained only 17 paragraphs before dealing with the cause of action while Ext.P2, contained 22 paragraphs and plaintiffs were allowed to incorporate paragraph 22(A) and 22 (B) before dealing with cause of action and what is allowed by way of amendment is to incorporate paragraphs 22(A) and 22(B) in Ext.P2 which is not treated by the learned Sub Judge as the plaint to be proceeded with. Hence the method adopted by the learned Sub Judge is not correct. (3) Since new relief has been incorporated by way of amendment fresh leave of the court to sue as indigent person is required. Learned counsel for defendant No.2 has supported the contentions raised by counsel of petitioner-defendant No.3. Learned counsel for respondent **W.P(C) No.20646 of 2010** ## -: 4 :- Nos.1 and 2-plaintiff Nos.2 and 3 contended that even if cause of action has become barred by limitation there is no bar in allowing the plaint to be amended. It is also contended that amendment was allowed with respect to Ext.P2, plaint and there is nothing wrong in proceeding with Ext.P2, plaint. 3. It is not disputed that what is sought to be incorporated by amendment vide I.A.No.3213 of 2010 is based on events subsequent to the filing of the suit and which according to plaintiff Nos.2 and 3 are the after effects of the alleged defective operation and allied matters. It is true that as against Ext.P1 and P2 now enhancement is claimed to the extent of Rs.10 lakhs. This Court in **Kunheedu v. Marakkar & Others** (1989 [1] KLJ 92) has stated that though it is the general rule that amendment for incorporating new cause of action or a new relief if it would be barred by limitation on the filing of a fresh suit does not merit acceptance, court can still permit amendment if it is necessary in the interest of justice or to decide the real controversy between parties. One of the guidelines which can be gathered from the decisions is to check up whether the party had already laid factual foundation in his pleadings for such contention. Then the court should not lightly dismiss the prayer **W.P(C) No.20646 of 2010** ## -: 5 :- for amendment when the amendment is to introduce something which is only of a formal character. Same view was taken by the ## Supreme Court in **Pankaja & Another v. Yellappa (D)** **by Lrs. & Others** (2004 [2] KLJ 660) where it is held that even though relief is barred by limitation amendment of pleadings can be allowed in appropriate cases if that sub-serves cause of justice and avoids further litigation. In the present there are allegations in Exts.P1 and P2 as to the manner in which defendant Nos.2 and 3 are alleged to have conducted the operation. It is also stated that on account of that, Nalini Devi and her daughter (plaintiff No.2) suffered serious disabilities and Nalini Devi died on 16.2.2003. According to plaintiff Nos.2 and 3 that was due to the after effects of the defective operation. Therefore it is not as if there is no factual foundation in Ext.P1 and P2 for the claim now sought to be incorporated. But considering he contentions raised by petitioner/defendant No.3, he can be permitted to file additional written statement to the amended plaint taking up a plea of limitation also to the extent it concerned the claim for enhanced compensation. Learned counsel for petitioner states that as permitted by this Court written statement is already filed. I make it clear that court below shall decide at the time of final ## **W.P(C) No.20646 of 2010** -: 6 :- disposal of the suit whether plea of limitation raised by petitioner/defendant No.3 can be accepted on the facts of the case and in the light of the relevant decisions on the point. 4. Next objection is that amendment is sought to Ext.P2, plaint while in Ext.P4, order learned Sub Judge has observed that Ext.P1 will be treated as the plaint. Learned counsel invited my attention to Order XXXIII Rule 8 of the Code which states that when application to sue as indigent person is granted, the application on which special leave is granted shall be numbered and registered and shall be deemed to be the plaint in the suit. Reference is made by learned counsel to paragraph 5 of Ext.P4, order where it is stated that “hereafter the OP originally filed will be considered as plaint”. But I must also bear in mind that Ext.P2, plaint was filed not at the option of plaintiff Nos.2 and 3 but as ordered by the learned Sub Judge as seen from Ext.P4. It is as per direction of the learned Sub Judge that plaintiffs produced fresh pliant (Ext.P2). Now as it stands Ext.P2, plaint contains 22 paragraphs before the portion dealing with cause of action and I.A. No.3213 of 2010 was filed to incorporate paragraph 22(A) and 22(B) (obviously to Ext.P2, plaint). I leave it to the trial to decide the matter taking into account that it was **W.P(C) No.20646 of 2010** -: 7 :- as per the direction of the learned Sub Judge that Ext.P2, plaint was filed and what is referred to in Order XXXIII Rule 8 of the Code is only the procedure. 5. It is pointed out by learned counsel that in Ext.P1, plaint there are six plaintiffs while in Ext.P2, there are only 3 plaintiffs of whom plaintiff No.1 expired. When that defect was pointed out by defendant No.2 this Court observed that defendant No.2 can canvass that contention in the suit whatever be the worth of that contention. 6. Yet another contention is that further enquiry as to the means of plaintiff Nos.2 and 3 is required since new relief is incorporated by way of amendment. I am afraid, that contention cannot be accepted. For, holding that plaintiffs have no sufficient means to pay court fee for Rs.3 lakhs they were permitted to sue as indigent persons. Now claim for compensation is enhanced to Rs.10 lakhs. That does not mean that plaintiff Nos.2 and 3 have acquired means in the meantime to pay court fee payable on the enhanced claim. There is no case that after plaintiff Nos.2 and 3 were granted leave to file the suit as indigent persons they have acquired sufficient means to pay the court fee. ## **W.P(C) No.20646 of 2010** **==> picture [41 x 10] intentionally omitted <==** Resultantly, Writ Petition fails. It is dismissed. But Petitioner-defendant No.3 can challenge the new relief incorporated by way of amendment on the question of limitation. ## **THOMAS P. JOSEPH, JUDGE.** vsv