RFA No. 57 of 2004 with Cross Objection No.111 of 2004 21.10.2008 Present: Mr. G. D. Verma Sr. Advocate with Mr. B. C. Verma, Advocate, for the appellant. Mr. Vivek Thakur, Addl. A. G. with Mr. Anil Jaswal, Dy. A. G. for respondents No. 1 & 2. Mr. Praneet Gupta, Advocate, for respondent No.3. Smt. Bhago Devi aggrieved by the failure of the tubectomy operation carried on her by the Family Planning Department of the State of Himachal Pradesh on 6.8.1999, filed a suit for recovery for a sum of Rs.5 lacs claiming compensation against the defendants Doctor and the State. The trial Court in terms of the judgment and decree dated 27.12.2003 dismissed the plaintiff’s suit being barred by limitation. Both the plaintiff Smt. Bhago Devi and defendant No.3 Dr. Rita Mittal, who carried out the operation are aggrieved by the impugned judgment and decree and have filed the appeal and the cross objections. The trial Court framed five following issues:- 1) Whether the family planning operation failed due to the negligence of the defendants as alleged? …OPP 2) If issue No.1 is proved in affirmative, whether the plaintiff is entitled to compensation? If so, to what amount? …..OPP 3) Whether the plaintiff has no cause of action? …..OPD-1 to 3 4) Whether the plaintiff has no locus standi to file the suit? …….OPD-1 to 3 5) Whether the suit is not properly valued for the purpose of Court fee and jurisdiction? ……… OPD-1 to 3 Importantly, no issue with regard to the suit being barred by limitation was framed by the trial Court. Even the parties were not put to notice at the time of trial or hearing of the arguments. Both the parties being aggrieved by the impugned judgment and decree, I am of the view that interest of justice would be met if the findings returned by the trial Court are set-aside on all the issues and a fresh additional issue is framed and the parties are allowed to lead fresh evidence to prove their case on all the issues including the additional framed issue. Accordingly, the following additional issue is framed:- Whether the suit filed by the plaintiff is barred by limitation? The impugned judgment and decree dated 27.12.2003 is set-aside. The suit is restored to its original position. The parties through their learned counsel agree to appear before the trial Court on 25th November, 2008. The record along with a copy of this order be sent immediately. The trial Court shall afford an opportunity of leading evidence, first to the plaintiff and then to the defendants on all the issues. Learned counsel for the parties assure the Court that no unnecessary adjournment shall be taken by them on any account and an endeavour shall be made to have the matter decided as expeditiously as possible. After affording an opportunity of hearing, the trial Court shall decide the matter as expeditiously as possible considering that the suit pertains to the year 2001. Court fee be refunded in accordance with Rules. ( Sanjay Karol ), Judge. October 21, 2008 (rana)