1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 18.10.2011 CORAM THE HONOURABLE MR.JUSTICE A.SELVAM CIVIL REVISION PETITION No.1452 of 2011 and MISCELLANEOUS PETITION No.1 of 2011 1.Dr.Sivagurunathan 2.Dr.Vijayalakshmi 3.Dr.Athiyaman .. Petitioners Vs. 1.P.Vellaiyappa 2.Minor V.Sridharan 3.Minor V.Selvaraj (Minor 2 and 3 respondents are represented by their father and natural guardian viz., first respondent) 4.The District Collector, Madurai District. 5.The Dean, Government Rajaji Hospital, Madurai. 6.The Director of Medical Education, Kilpakkam, Chennai – 10. .. Respondents Civil Revision Petition has been filed under Article 227 of the Constitution of India against the fair and decretal order dated 18.02.2011 passed in Interlocutory Application No.141 of 2010 in I.D.O.P.No.4 of 2009 by the Principal District Court, Madurai. For Petitioners : Mr.Mathew Moses For Respondents : Mr.V.Maharajan 1 to 3 For Respondents : Mr.S.Chandrasekar 4 to 6 Government Advocate ORDER The order dated 18.02.2011 passed in Interlocutory Application No.141 of 2010 in I.D.O.P.No.4 of 2009 by the Principal District Court, Madurai is being challenged in the present Civil Revision Petition. 2. The respondents 1 to 3 herein as petitioners/plaintiffs have filed I.D.O.P.No.4 of 2009 on the file of the Court below in respect of the reliefs sought for therein, wherein the present revision petitioners have been shown as respondents 1 to 3/defendants 1 to 3. During pendency of the same, the present petition has been filed in Interlocutory Application No.141 of 2010 under Order XIV, Rule 2 coupled with Section 151 of the Code of Civil Procedure, 1908 praying to decide the maintainability of the suit/ petition as preliminary issue. The Court below after considering all the contentions raised on either side has dismissed the petition. Against the https://hcservices.ecourts.gov.in/hcservices/ 2 dismissal order, the present Civil Revision Petition has been preferred at the instance of the petitioners/defendants 1 to 3 as revision petitioners. 3. Before considering the rival submissions made on either side, it would be more useful to look into the nature of the averments made in I.D.O.P.No.4 of 2009 as well as the reliefs sought for therein. In I.D.O.P.No.4 of 2009, it has been specifically averred that the concerned doctors have done negligence in giving treatment to the deceased and therefore they are liable to pay damages. Under the said circumstances, two kinds of reliefs have been sought for in I.D.O.P.No.4 of 2009. The first and foremost relief is to treat the petitioners as indigent persons and the second relief is to pass a decree on the basis of damages. The present petition has been filed by the revision petitioners as petitioners under Order XIV, Rule 2 coupled with Section 151 of the Code of Civil Procedure, 1908 praying to decide the maintainability of the suit as a preliminary issue. 4. The Court below has dismissed the same stating that the suit in question is legally maintainable. 5. The only point that comes up for consideration in the present Civil Revision Petition is as to whether the suit in question is legally maintainable in respect of the reliefs sought for therein? 6. The learned counsel appearing for the revision petitioners has repeatedly contended that already the matter in question has been referred to Medical Board and a specific finding given by the Medical Board is that there is no negligence nor fault on the part of the concerned doctors and under the said circumstances the present suit is not legally maintainable. 7. In support of the contention raised on the side of the revision petitioners, the decision in Martin F.D.'Souza v. Mohd. Ishfaq reported in 2009(2) CTC 252 is relied upon, wherein the Hon'ble Apex Court has held that Courts and Forum not experts in medical science and must not substitute their own views over that of specialists. 8. As stated earlier, the only point that comes up for consideration in the present Civil Revision Petition is as to whether the present petition/suit is legally maintainable in respect of the reliefs sought for therein? 9. In the plaint, it has been specifically stated that due to negligence on the part of the defendants 1 to 3 in giving medical treatment, the deceased has passed away. Therefore the entire burden lies upon the plaintiffs to prove the alleged negligence on the part of the defendants 1 to 3. The present suit has been instituted for getting a decree on the basis of damages. Considering the fact that the present suit has been instituted for getting a decree on the basis of the damages as per Section 9 of the Code of Civil Procedure, 1908, the present petition is legally maintainable and further in the decision referred to earlier, it has not been specifically mentioned about the ouster of jurisdiction of the civil Court. Since the jurisdiction of civil Court is not specifically ousted in a case like this, it is needless to say that the present suit is legally maintainable in respect of the reliefs sought for therein. https://hcservices.ecourts.gov.in/hcservices/ 3 10. The Court below after considering all the contentions raised on either side has rightly dismissed Interlocutory Application No.141 of 2010 and in the light of the discussion made earlier, this Court has not found any error in the order passed by the Court below and altogether the present Civil Revision Petition deserves to be dismissed. 11. In fine, this Civil Revision Petition deserves dismissal and accordingly is dismissed without costs and the order passed in Interlocutory Application No.141 of 2010 in I.D.O.P.No.4 of 2009 by the Principal District Court, Madurai is confirmed. Consequently, connected Miscellaneous Petition is dismissed. Sd ASST REGISTRAR ( RTI Act ) /TRUE COPY/ SUB ASST REGISTRAR smn To The Principal District Judge, Madurai. 1CC TO MR. V.MAHARAJAN, ADVOCATE,SR: 36063: 1CC TO MR. MATHEU MOSES, ADVOCATE, SR:356436: 1CC TO THE SPL. GOVT PLEADER SR: 36118: DM:2011:OCT:31:: C.R.P(NPD)(MD)No.1452 of 2011 and M.P(MD)No.1 of 2011 18.10.2011 3P;5C:: https://hcservices.ecourts.gov.in/hcservices/