IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 13TH JULY 2011 / 22ND ASHADHA 1933 OP(C).No. 2232 of 2011(O) ------------------------- AGAINST THE ORDER DATED / / IN IA 1257/2011 IN OS.165/2011 of MUNSIFF COURT, HOSDRUG .................... PETITIONERS :- ------------------------------- 1. INDIAN MEDICAL ASSOCIATION, KANHANGAD BRANCH,REP.BY ITS PRESIDENT, HAVING OFFICE AT KANNUMMAL, KANHANGAD, BALLA VILLAGE, HOSDURG TALUK, KASARAGOD DISTRICT POST KANHANGAD 2. DR.T.V.PADMANABHAN, AGED ABOUT 60 YEARS FATHER'S NAME NOT KNOWN, RETIRED CIVIL SURGEON,(PEDIATRICIAN) R/A.'THEKKE VEETTIL',LAKSHMI NAGAR, HOSDURG VILLAGE, HOSDURG TALUK, KASARAGOD DISTRICT,POST KANHANGAD. BY ADV. SRI.T.SETHUMADHAVAN SRI.PUSHPARAJAN KODOTH SRI.K.JAYESH MOHANKUMAR RESPONDENT(S) :- --------------------------- SATHISH K.THOMAS, AGED 39 S/O.K.A.THOMAS, CHRISTIAN, PHYSIOTHERAPIST, R/A.KOLLAMPARAMBIL HOUSE,KAVVACHIRA, THOYAMMAL, POST BALLA, HOSDURG TALUK, HOSDURG TALUK,KASARAGOD DISTRICT-673101 THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 13/07/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: jvt O.P.(C).No.2232 OF 2011 APPENDIX Petitioner's Exhibits :- Ext.P1 :- Copy of the plaint in O.S.No.165/2011 on the file of the Munsiff Court, Hosdurg dated 7.5.2011 Ext.P2 :- Copy of the written statement filed by petitioners in O.S.No.165/2011 dated 22.6.2011. Ext.P3 :- Copy of relevant order passed by the Director of Health Services, Trivandrum dated 3.2.1999. Ext.P4 :- Copy of the relevant order passed by the District Medical Officer of Health, Kasaragod dated 17.6.2011. Ext.P5 :- Copy of the affidavit accompanying I.A.No.1257/2011 in O.S.No.165/2011 Munsiff Court, Hosdurg Dated 22.6.2011. Ext.P6 :- Copy of I.A.No.956/2011 filed along with O.S.No.165/2011 dt.7.5.2011 Ext.P7 :- Copy of the counter filed by the petitioners in I.A.No.956/2011 in O.S.No.165/2011 dated 22.6.2011. Ext.P8 :- Copy of the order of the Munsiff Court, Hosdurg in I.A.No.956/2011 in O.S.No.165/2011 dt.27.6.2011 Ext.P9 :- Copy of the one of the Certificate issued by the respondent to one Jose U.S., who was being treated by him. Respondent's Exhibits :- NIL. //True Copy// P.A. to Judge THOMAS P. JOSEPH, J. ~~~~~~~~~~~~~~~~ O.P.(C). No.2232 of 2011 ~~~~~~~~~~~~~~~~~ Dated this the 13th day of July 2011 J U D G M E N T Respondent who, according to the petitioners originally claimed to be a medical practitioner engaged in Physiotherapy filed O.S.No.165 of 2011 in the court of learned Munsiff, Hosdurg seeking a declaration that he has got a right to practice as a Physiotherapist and for consequential, prohibitory injunction. Petitioners resisted the suit contending that since respondent is not registered under the Indian Medical Council Act and Travancore- Cochin Medical Council Act, he is not entitled to practice either as a medical practitioner or as a Physiotherapist. While so, allegedly to take care of interest of persons placed similarly to the respondent, the latter filed I.A.No.956 of 2011 under Order 1 Rule 8 and Sec.151 of the Code of Civil Procedure (for short, “the Code”) for leave to O.P.(C). No.2232 of 2011 -: 2 :- sue as provided under Rule 8 of Order 1 and to make necessary publication in that regard. Though, that application was resisted by petitioners on the ground that reliefs prayed for in the suit are purely personal to the respondent and hence he could not seek a declaration concerning persons engaged in physiotherapy in the present suit even by taking recourse to the procedure under Order 1 Rule 8 of the Code, learned Munsiff allowed that application by Ext.P8, order dated June 27, 2011. The challenge in this proceeding is to Ext.P8 order. It is also contended that since the suit is not maintainable on account of respondent not registering under the above said Acts, petitioners filed I.A.No.1257 of 2011 (Ext.P5) to decide maintainability of the suit as a preliminary issue but, no order has been passed on the said application. Learned counsel has submitted that learned Munsiff was not right in allowing I.A.No.956 of 2011 and hence Ext.P8 order is bad in law. It is also requested that learned Munsiff may be O.P.(C). No.2232 of 2011 -: 3 :- directed to decide maintainability of the suit as a preliminary issue. 2. So far as Ext.P8 order is concerned, it is only a procedural step taken by the respondent. Whether respondent is entitled to get a declaration as the learned counsel submits, concerning other physiotherapists also as a matter which the trial court has to decide ultimately. Notwithstanding Ext.P8, order, it is open to the petitioners to urge that question before learned Munsiff if it arises from their pleadings. Therefore, there is no reason why this Court should interfere with the procedural step taken by the respondent and allowed by the learned Munsiff vide Ext.P8. 2. So far as maintainability of the suit is concerned, it is for learned Munsiff to consider whether the said issue can be decided as a preliminary issue under Order XIV Rule 2 of the Code. Learned Munsiff has to look into that matter and pass appropriate orders on Ext.P5, I.A.No.1257 of 2011. O.P.(C). No.2232 of 2011 -: 4 :- Resultantly this original petition is disposed of in the following observations :- (1)So far as Ext.P8, order is concerned, it is made clear that it is open to the petitioners to urge before learned Munsiff at the stage of trial that no declaration concerning any person other than respondent, even invoking provisions of Order 1 Rule 8 of the Code could be granted. (2)Learned Munsiff is directed to consider I.A.No.1257 of 2011 and pass appropriate orders thereon, as provided under law before proceeding with the trial of the suit. THOMAS P. JOSEPH, JUDGE. Jvt