IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 24883 of 2007(K)
1. DR.INDIRA BAI AMMA, TC 5/1970,
... Petitioner
Vs
1. NIMMY (MINOR), D/O.NALINI DEVI,
... Respondent
2. MOHANAN, S/O.CHELLAPPAN PILLAI,
3. STATE OF KERALA REPRESENTED BY
4. DR.RAJUSEKHARAN NAIR, TC 11/411,
For Petitioner :SRI.RAM MOHAN.G.
For Respondent :SRI.M.SREEKUMAR
The Hon'ble MR. Justice P.R.RAMAN
The Hon'ble MR. Justice S.S.SATHEESACHANDRAN
Dated :11/02/2010
O R D E R
S.S.SATHEESACHANDRAN, J.
------------------------------------------------
W.P.(C).No.24883 of 2007
-----------------------------------------------
Dated this the 11th day of February, 2010
JUDGMENT
The writ petition is filed seeking the following
reliefs:
i) quash Exhibit P1 and P3 applications
and Exhibit P9order.
ii) to grant such other reliefs which this
Honourable Court may deem fit and
proper in the nature and circumstances
of the case.
2. Petitioner is a doctor who retired from
Government Service. She is the second defendant in
O.S.No.51/97 on the file of the 2nd Additional Sub Court,
Thiruvananthapuram. The above suit was originally filed
as O.P.(Indigent) No.46/91 with the plaintiffs seeking
permission to sue as indigent persons. After enquiry,
permission to sue as indigent persons was granted by
order dated 6.6.1996. Admittedly, petitioner received
notice in O.P.(Indigent) No46/91, and permission to
W.P.(C).No.24883 of 2007
:: 2 ::
institute the suit in forma pauperis was granted after
negativing the objections raised by the petitioner and
others, the respondents in that original petition. After
numbering of the suit as O.S.No.51 of 1997 on the failure
of the plaintiffs to take summons to the petitioner/2nd
defendant, the suit against her was dismissed on
14.1.2000. Plaintiffs thereafter moved an application
under Order IX Rule 9 of the Code Civil Procedure {for
short ‘the Code’}, along with a petition under Section 5
of the Limitation Act, to condone the delay, for restoring
the suit dismissed against the 2nd defendant. There was a
delay of 1107 days in moving that application. The
learned Sub Judge allowed that application without notice
to the petitioner/2nd defendant, by order dated 21.7.2003.
Petitioner/2nd defendant thereafter moved an application
as I.A.No.5669/03 to review the order passed on the
application of the plaintiffs for restoring the suit
dismissed against her contending that the application of
W.P.(C).No.24883 of 2007
:: 3 ::
the plaintiffs was not maintainable. The learned Sub
Judge, after hearing both sides, partly allowed the
application of the 2nd defendant by Ext.P5 order. The
order passed in both the petitions of the plaintiffs was set
aside with a direction to hear them afresh providing
opportunity to the 2nd defendant. But, under Ext.P5 order
the challenge against the maintainability of the petitions
of the plaintiffs canvassed by the 2nd defendant was
negatived. The 2nd defendant thereupon challenged
Ext.P5 order filing a revision [C.R.P.No.716/04] before
this court. That revision was disposed of by Ext.P8
judgment holding that there was no reason to interfere
with Ext.P5 orders of the learned Sub Judge. It was
observed that 2nd defendant is at liberty to file objections
to the applications of the plaintiffs to take up whatever
contentions available to her under law, including the
jurisdiction of the learned Sub Judge to set aside the
order previously passed dismissing the suit against her.
W.P.(C).No.24883 of 2007
:: 4 ::
Pursuant thereto, after hearing both sides, the learned
Sub Judge again allowed the applications of the plaintiffs
and set aside the order dismissing the suit against 2nd
defendant vide Ext.P9 order. Propriety and correctness of
Ext.P9 order is challenged in the writ petition invoking
the supervisory jurisdiction vested with this court under
Article 227 of the Constitution of India.
3. The suit O.S.No.51/97 instituted after obtaining
leave of the court to sue as indigent persons, with a
petition filed to seek such permission 6 years prior to the
numbering the suit, is one for compensation for medical
negligence. The 1st plaintiff who was admitted in a
Government Hospital, after administration of anesthesia
and subjected to cesarean operation, on account of the
negligence of the Medical practitioners (2nd and 3rd
defendants), lost her eye sight and physically immobilised
ever since and was bed ridden, and the child delivered by
by her (third plaintiff) turned out to be an imbecile, is the
W.P.(C).No.24883 of 2007
:: 5 ::
gist of the case of the plaintiffs to seek compensation
against the defendants, the State and two doctors (2nd
defendant and another, the anesthetist), The victim, the
1st plaintiff, according to the respondents/plaintiffs, had
breathed her last a few days ago, after being continuously
bed ridden with both eye sight totally lost over a period of
15 years ever since her operation. Suit claiming
compensation, is now being prosecuted by her husband
along with the child who is represented by him as its next
friend. At this stage, the merit of the allegations
canvassed by the plaintiffs for compensation nor the
defences, whatever that be available to the defendants,
has no significance or relevance, but still, it cannot go
unnoticed that a suit raising a claim for compensation for
medical negligence on the allegations imputed as above,
has not crossed the threshold to proceed with the trial,
and that the claimants even to sue as in forma pauperis
had to wait for a long period of 6 years.
W.P.(C).No.24883 of 2007
:: 6 ::
4. The question posed for consideration in the
present writ petition is whether an order dismissing a suit
against one of the defendants in the suit under Order IX
Rule 5 of the Code, for the default of the plaintiffs to take
steps for issue a fresh summons against such a defendant
when the previous summons issued to the defendant
returned unserved, can be set aside invoking Order IX
Rule 9 of the Code.
5. Petitioner/2nd defendant admittedly was given
notice in O.P.No.46/91. After hearing the defendants,
including the 2nd defendant, permission was accorded by
the court to the plaintiffs allowing them to sue as indigent
persons. In the suit, summons issued to the 2nd defendant
was returned unserved and for the failure of the plaintiffs
to take fresh summons against her, suit was dismissed
against that defendant on 14.1.2000. Once a suit has
been dismissed against a defendant for the failure of the
plaintiffs to take steps to issue fresh summons, the
W.P.(C).No.24883 of 2007
:: 7 ::
dismissal thereof cannot be set aside under Order IX Rule
9 of the Code, is one among the contentions canvassed by
the 2nd defendant to impeach the correctness of Ext.P9
order. Another contention is also raised that permission
to sue as indigent persons was moved by 6 persons, but
after obtaining such permission, plaint was presented
showing only 4 persons as plaintiffs and the suit
numbered and received on file on such a plaint is not
maintainable. So far as the challenge canvassed with
respect to the maintainability of the suit, on the plea that
the plaint presented after obtaining permission show
some reduction in the number of plaintiffs, I find, is a
matter that can be canvassed by the 2nd defendant in the
suit itself, and whatever be the worth of that contention, it
deserves to be looked into only in the trial and not in
examining the merit of Ext.P9 order. So much so, in the
present writ petition, the challenge raised that a dismissal
of a suit against one of the defendants in a suit under
W.P.(C).No.24883 of 2007
:: 8 ::
Order IX Rule 5 cannot be interfered with in an
application under Order IX Rule 9 of the Code alone
emerge for consideration.
6. The learned counsel for the petitioner relied on
the decisions in State of UP v. Ram Prasad {1996
AIHC 1485}, Purushothaman Nair v. Venugopalan
{1980 K.L.T. 451} and John v. Mammukutty {1985
K.L.T. 55}, to contend that notice issued in the
application filed in forma pauperis to the parties
proceeded against has no significance, even if they have
appeared in the enquiry on such application, in
considering as to whether proper summons with a copy of
the plaint, after institution of the suit according
permission to sue as indigent persons to the plaintiffs, has
been issued to the defendants. When a summons issued
to the defendant was returned unserved and on default of
the plaintiff to take fresh steps for issuing summons to
such defendant within the time ordered by the court, the
W.P.(C).No.24883 of 2007
:: 9 ::
order passed by the court dismissing the suit against such
defendant, according to the learned counsel for the
petitioner/2nd defendant, is final and conclusive. The only
remedy available to the plaintiffs in such a situation,
according to the counsel, is to institute a fresh suit
against the defendant against whom the previous suit had
been dismissed, as contemplated under Order IX Rule 4 of
the Code, provided, the cause of action still survives,
enabling him to do so. I do not find any merit in the
submissions made by the learned counsel. First of all, the
decisions relied on by the counsel, all of which deal with
the question relating to the issue of summons
accompanied by a copy of the plaint after permission is
accorded to a plaintiff to sue as indigent person, have no
application or bearing on the question to be considered in
the present case. In State of UP v. Ram Prasad {1996
AIHC 1485}, and John v. Mammukutty {1985 K.L.T.
55}, the effect of non -service of proper summons as
W.P.(C).No.24883 of 2007
:: 10 ::
contemplated under Order V Rule 2 of the Code, once the
plaintiffs have been accorded permission to sue as
indigent persons after enquiry in their application moved
for such permission, in relation to proceedings under
Order IX Rule 13 of the Code arose for consideration, and
in that context, it has been held that compliance with
Order V Rule 2 of the Code as to issuing of fresh summons
accompanied by a copy of the plaint to the defendant,
even if he had appeared and contested the enquiry on the
application for in forma pauperis is mandated by the
Code. The only distinction in the other decision
canvassed viz., Purushothaman Nair v. Venugopalan
{1980 K.L.T. 451} is that the challenge was at the
instance of the plaintiff against the orders passed by the
inferior courts setting aside the decree passed ex parte
against the defendant, which was canvassed by them
imputing non-compliance of the rule under Order V Rule 2
of the Code, after according permission to sue as indigent
W.P.(C).No.24883 of 2007
:: 11 ::
person. In all the above decisions, the only question that
arose for consideration was the mandatory requirement of
issuing summons accompanied by a copy of the plaint to
the defendants after the suit was numbered on according
permission to sue as indigent persons in spite of the
appearance of such defendants in the enquiry on the
forma pauperis application. In the present writ petition,
we are concerned with respect to a question pertaining to
the dismissal of the suit against one of the defendants for
the default of the plaintiffs to take steps for issue of fresh
summons, as covered by Order IX Rule 5 of the Code.
That question did not arise for consideration before the
court in the cases covered by the decisions cited by the
counsel, and as such the above decision have no parallel
or connection with the present case.
7. There is absolutely no merit in the argument
advanced by the learned counsel for the petitioner/2nd
defendant that dismissal of a suit against a defendant
W.P.(C).No.24883 of 2007
:: 12 ::
under Order IX Rule 5 of the Code has to be equated with
and treated as equivalent to an order of dismissal passed
under Rule 2 or 3 of Order IX of the Code and the
enabling provisions covered by Rule 4 of that Order for
restoring such a suit. Rule 2 of Order IX deals with a
situation emerging from dismissal of a suit consequent to
the failure of the plaintiff to pay the court fee or postal
charges or to produce copies of the plaint for service of
summons to the defendant. If such default is noticed by
the court in effecting service on the defendant, on the day
so fixed for return of such summons, the court may make
an order that the suit be dismissed, is the spirit of that
Rule. Rule 3 of Order IX of the Code contemplates a
dismissal of a suit where neither party appears when the
suit is called on for hearing. When a suit is dismissed
under Rule 2 or 3, Rule 4 enables the plaintiff to bring a
fresh suit, or to apply for an order to set aside the
dismissal order. Rule 4 of Order IX has no application
W.P.(C).No.24883 of 2007
:: 13 ::
when a suit has been dismissed against one of the
defendants for the default of the plaintiff in taking fresh
steps, after a summons already issued to that defendant
had been returned unserved, within the time fixed by the
court. Rule 4 of Order IX contemplates of setting aside a
dismissal order and restoration of a suit only when such
orders of dismissal have been made under Rule 2 or Rule
3 of Order IX of the Code.
8. Much emphasis was also made by the counsel
for the petitioner to sub rule (2) of Rule 5 of Order IX to
contend that once a suit has been dismissed against one
of the defendants under the circumstances covered by sub
rule (1) of that Rule, the only remedy available to the
plaintiff is to bring a fresh suit, subject to the law of
limitation. Rule 5 of Order IX reads thus:-
“(1) Where after summons has been issued to
the defendant, or to one of several
defendants and returned unserved, the
plaintiff fails to file necessary requisites
for a fresh summons, within the period
W.P.(C).No.24883 of 2007
:: 14 ::
fixed by the Court, it shall make an order
that the suit be dismissed as against such
defendant and
(2) In such case the plaintiff may (subject to
the law of limitation) bring a fresh suit.”
Whether the sub rule (2) forbids and interdicts a court in
entertaining an application moved by the plaintiff for
setting aside an order of dismissal against one of the
defendants under sub rule (1) of Rule 5 of Order IX of the
Code in the circumstances covered by that sub rule
deserves to be examined. Sub rule (2) is an enabling
provision permitting the plaintiff to file a fresh suit
against a defendant, subject to the law of limitation, when
a suit against a defendant had been dismissed for his
failure to take fresh steps after returning of the summons
issued against the defendant, as covered by sub rule(1) of
that Rule. No provision for setting aside an order
dismissing a suit against one of the defendants under Sub
rule (1) of Rule 5 is provided, but sub rule (2) of that Rule
enables the plaintiff to bring a fresh suit subject to the
W.P.(C).No.24883 of 2007
:: 15 ::
law of limitation against such defendants is the basis on
which it is contended that the court has no jurisdiction to
set aside a dismissal of a suit against a defendant passed
under sub rule (1) of Rule 5 of Order IX. The argument
canvassed by the counsel viewed with reference to sub
rule (2) of Rule 5 of Order IX of the Code at first blush
may appear to have formidable force leaving no exception
whatsoever other than the conclude that once a suit has
been dismissed under the circumstances covered by sub
rule (1) of Rule 5 of Order IX, the plaintiff is left with no
remedy other than to institute a fresh suit provided it is
entertainable as not barred by limitation. But on a closer
scrutiny of the rule with reference to the inherent power
of the court to make such orders as may be necessary for
the ends of justice, as empowered under Section 151 of
the Code, and also Order I Rule 10(2) of the Code to
implead any party to the suit, at any stage, either upon or
without the application of the party, where the court finds
W.P.(C).No.24883 of 2007
:: 16 ::
that the presence of such a party as a plaintiff or
defendant may be necessary to enable it effectually and
completely to adjudicate upon and settle all questions
involved in the suit, it is seen the order of dismissal
passed against a defendant under sub rule (2) of Rule 5 of
Order IX of the Code does not in any way curtail the
powers of the court to order impleadment of such a
defendant again as a party to the suit.
9. In the given facts of the case taking note that
Ext.P9 order is impugned inviting the visitorial
jurisdiction of this court to challenge that order, I find
much significance need not be given to sub rule (2) of
Rule 5 of Order IX of the Code. True, the plaintiff has
moved the application under Order IX Rule 9 of the Code
for restoration of the suit dismissed as against the
petitioner/2nd defendant under sub rule(1) of Rule 5 of
Order IX of the Code. An application under Order IX Rule
9 of the Code for restoration of a suit dismissed under sub
W.P.(C).No.24883 of 2007
:: 17 ::
rule (1) of Rule 5 of Order IX of the Code may not lie. But
it is not the rule of the procedure that has to be given
significance, but avoidance of miscarriage of justice. It is
seen from Ext.P9 order, the court below has taken note of
the institution of the proceedings by filing of the original
petition to sue in forma pauperis by the plaintiffs and
what all transpired thereafter with the suit instituted after
granting permission to the plaintiffs to sue as indigent
persons remaining stuck on the challenges canvassed by
the petitioner/2nd defendant. Even after one and half
decade after the commencement of the proceedings, it is
noticed by the court below that by the time the summons
was ordered after numbering of the suit, on the disposal
of the application permitting the plaintiffs to sue as
indigent persons, the petitioner/2nd defendant had already
retired from Government service. Service could not be
effected on the 2nd defendant by the plaintiffs despite
taking repeated steps. She had notice of the earlier
W.P.(C).No.24883 of 2007
:: 18 ::
proceedings and in fact she had resisted the application of
the plaintiffs to sue as indigent persons seeking
permission. Of course, she is entitled to fresh notice on
numbering of the suit once permission is accorded to the
plaintiffs to sue as indigent persons by issue of summons
with a copy of the plaint. But in the facts and
circumstances involved in the case where it is seen, the
claim was one for compensation that too for medical
negligence with a case presented that the victim lost her
eye sight and remained immobilised and bed ridden for a
period of fifteen years after undergoing a cesarean
operation and the child born, on account of the medical
negligence imputed, is living as a vegetable, I find the
discretion exercised by the court in condoning the delay
and allowing the application moved by the plaintiffs
setting aside the dismissal of the suit previously passed
against the petitioner/2nd defendant does not warrant any
interference at all. There cannot be any dispute that
W.P.(C).No.24883 of 2007
:: 19 ::
when an allegation of medical negligence is imputed
against the State and two doctors including the 2nd
defendant, it goes without saying that no effective decree
can be passed in the suit in the absence of the 2nd
defendant, if it is ultimately found that the plaintiffs are
entitled to a decree on substantiating their case. In such
a situation, the dismissal of the suit against the 2nd
defendant under sub rule (1) of Rule 5 of Order IX of the
Code does not interdict the court in invoking its powers
under Order I Rule 10(2) of the Code in impleading that
defendant as a party afresh in the suit. The facts and
circumstances presented in the case disclose that in case
the order passed by the court dismissing the suit against
the petitioner/2nd defendant is allowed to remain
undisturbed, it will, no doubt, lead to miscarriage of
justice.
10. In the context, the power of the court to
implead a party where his/her presence is found essential
W.P.(C).No.24883 of 2007
:: 20 ::
by the court as covered by Order I Rule 10(2) of the Code
has to be examined. Sub rule (2) of Rule 10 of Order I of
the Code reads thus:
“Court may strike out or add parties:-
The court may at any stage of the
proceedings, either upon or without the
application of either party, and on such terms
as may appear to the Court to be just, order
that the name of any party improperly joined,
whether as plaintiff or defendant, be struck
out, and that the name of any person who
ought to have been joined, whether as
plaintiff or defendant, or whose presence
before the court may be necessary in order to
enable the Court effectually and completely to
adjudicate upon the settle all the questions
involved in the suit, be added.”
The above sub rule gives a very wide discretion to the
court in passing an order directing impleadment of any
party whose presence is found necessary for effective
adjudication of the disputes canvassed in the suit or
proceedings. In the nature of the reliefs canvassed in the
W.P.(C).No.24883 of 2007
:: 21 ::
suit with reference to the allegations raised to sustain
their case it goes without saying that the presence of the
petitioner/2nd defendant as a party is very vital and
absolutely essential to render a proper decision. Merely
because the suit had been dismissed earlier against the
2nd defendant on default of the plaintiffs to take steps
afresh when a summons issued against her was returned
unserved and even assuming that the plaintiffs are
concerned, they may be entitled only to file a fresh suit
against that defendant, it does not in any way whittle
down the power of the court in directing the impleadment
of such a defendant again in the suit when his/her
presence is found necessary for a proper adjudication of
the suit on merits. I find in Ext.P9 order, though not
quoting the principles covered by Order I Rule 10(2) of
the Code, the learned Sub Judge has also observed that
this was a “fit case where invocation of Section 151 of the
Code for adding the petitioner as 2nd defendant in the
W.P.(C).No.24883 of 2007
:: 22 ::
existing suit can be done to meet the ends of justice”. The
learned Sub Judge has also stated that without the 2nd
defendant on the party, the reliefs sought for by the
plaintiffs cannot be granted by passing an executable
decree. The interest of justice, as borne out by the facts
presented, it is seen persuaded the learned Sub Judge to
conclude that setting aside of the order dismissing the
suit against the 2nd defendant, after condoning the delay
in moving the application by the plaintiff has to be
allowed and in that view of the matter, Ext.P9 order has
been passed setting aside the dismissal of the suit against
the petitioner/2nd defendant. In the context, it may be
appropriate to take note of the proverbial words of Justice
Vivian Bose, a legal luminary whose judicial
pronouncements on very many intricate facets of law are
considered to be classics, over the scope, impact and
applicability of the procedural shackles of the Code of
Civil Procedure. The learned Judge has commented in
W.P.(C).No.24883 of 2007
:: 23 ::
Sangram Singh v. Election Tribunal, Kotah {AIR
1955 SC 425} thus:-
“A Code of Procedure must be regarded as
such. It is procedure, something designed to
facilitate justice and further its ends: not a
penal enactment for punishment and
penalties; not a thing designed to trip people
up.”
11. The petitioner/2nd defendant in this case has
not acquired any vested right insulating her from further
prosecution of the claim raised in the suit by virtue of the
previous order of dismissal of the suit under sub rule (1)
of Rule 5 of Order IX of the Code. At any rate, that
dismissal order is no bar for the court to set aside that
dismissal invoking its inherent jurisdiction under Section
151 of the Code as that very Section is intended to do
justice where it is found so imperative and necessary in
the facts of the case. I find no interference with Ext.P9
order is called for invoking the visitorial jurisdiction of
this court.
W.P.(C).No.24883 of 2007
:: 24 ::
12. As already indicated above, the suit has had a
long chequered career of more than one and half decades,
but, even preliminary steps to proceed with the trial are
not completed. The court below shall make every
endeavour to dispose of the suit, as expeditiously as
possible, adhering to time limits for filing of the written
statement by the contesting defendants, completion of
pre-trial steps etc. and at any rate, dispose of the suit
within a period of six months from the date of
receipt/production of a copy of this judgment.
Writ petition is disposed of as above.
Sd/-
(S.S.SATHEESACHANDRAN)
JUDGE
SK/-
//true copy//