IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN THURSDAY, THE 11TH FEBRUARY 2010 / 22ND MAGHA 1931 WP(C).No. 24883 of 2007(K) -------------------------- {IN IA 1236/03 IN OS.51/1997 of II ADDL.SUB COURT, TRIVANDRUM} .................... PETITIONER(S): --------------- DR.INDIRA BAI AMMA, TC 5/1970, SREEKRISHNA LANE, KOWDIAR, THIRUVANANTHAPURAM. ADDRESS SHOWN IN THE PLAINT AS R.M.O., W & C HOSPITAL, THYCAUD, THIRUVANANTHAPURAM. BY ADV. SRI.RAM MOHAN.G. SRI.G.P.SHINOD SRI.MANU V. RESPONDENT(S): --------------- 1. NIMMY (MINOR), D/O.NALINI DEVI, VILAYIL PUTHEN VEEDU, T.C.11/1836, YMR JUNCTION, KOWDIAR, VILLAGE, THIRUVANANTHAPURAM 2. MOHANAN, S/O.CHELLAPPAN PILLAI, OF DO, DO. 3. STATE OF KERALA REPRESENTED BY CHIEF SECRETARY, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 4. DR.RAJUSEKHARAN NAIR, TC 11/411, 'ASIS', NANTHANCODE, THIRUVANANTHAPURAM. R4 IS DELETED FROM PARTY ARRAY AS PER ORDER DT. 29.10.08 I.A.NO.13571/08. ADV. SRI.M.SREEKUMAR FOR R.1,2 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 10/12/2009, THE COURT ON 11/02/2010, DELIVERED THE FOLLOWING: WP(C).No. 24883 of 2007 :: 2 :: APPENDIX PETITIONERS' EXHIBITS: EXT.P1: TRUE COPY OF I.A.1234 OF 2003 IN O.S.51 OF 1997. EXT.P2: TRUE COPY OF THE OBJECTION FILED BY 2ND COUNTER PETITIONER (PETITIONERHEREIN TO I.A.1234/03 IN O.S.51 OF 1997. EXT.P3: TRUE COPY OF I.A.1236 OF 2003 IN O.S.51 OF 1997. EXT.P4: TRUE COPY OF THE OBJECTION FILED BY 2ND COUNTER PETITIONER HEREIN TO I.A.1236 OF 2003 IN O.S.51 OF 1997. EXT.P5: TRUE COPY OF THE ORDER DATED 25.3.2004 IN I.A.5669/2003 IN O.S.51OF 1997. EXT.P6: TRUE COPY OF I.A.1457/04 IN O.S.51 OF 1997. EXT.P7: TRUE COPY OF THE OBJECTION TO I.A.1457/04 IN O.S.51 OF 1997 FILED BY THE PETITIONER. EXT.P8: TRUE PHOTO COPY OF THE ORDER DATED 2.1.2007 IN C.R.P.716 OF 2004. EXT.P9: TRUE COPY OF THE COMMON ORDER DATED 28.2.2007 IN I.A.1236 OF 2003 AND 1234 OF 2003 IN O.S.51 OF 1997. RESPONDENTS' EXHIBITS: NIL //true copy// P.S. To Judge SK/- 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