IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 20646 of 2010(O)
1. DR.RAJASEKHARAN NAIR, NOW RESIDING
... Petitioner
Vs
1. NIMMY, AGED 21 YEARS,
... Respondent
2. MOHANAN, AGED 52 YEARS,
3. RAJAMMA, AGED 78 YEARS,
4. STATE OF KERALA, REP. BY THE
5. DR.INDIRA BAI AMMA,
For Petitioner :SRI.ANIL K.NARENDRAN
For Respondent :SRI.M.SREEKUMAR
The Hon'ble MR. Justice THOMAS P.JOSEPH
Dated :27/07/2010
O R D E R
THOMAS P.JOSEPH, J.
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W.P(C) NO.20646 of 2010
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Dated this the 27th 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
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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
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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
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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
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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
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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
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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.
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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