Dr. Smt. Sandhiya Khosala vs Laxmikant Vadoniya
2024 Latest Caselaw 4358 MP

Madhya Pradesh High Court

Dr. Smt. Sandhiya Khosala vs Laxmikant Vadoniya on 15 February, 2024

                                                            1
                            IN    THE       HIGH COURT OF MADHYA PRADESH
                                                 AT JABALPUR
                                                       BEFORE
                                        HON'BLE SHRI JUSTICE GAJENDRA SINGH
                                             ON THE 15 th OF FEBRUARY, 2024
                                               MISC. APPEAL No. 2166 of 2023

                           BETWEEN:-
                           DR. SMT. SANDHIYA KHOSALA W/O ROMESH
                           CHANDER KHOSALA, AGED ABOUT 70 YEARS,
                           OCCUPATION: DOCTOR DISTRCT RAISEN R/O H/X/76-E-
                           7 EXTENSION ARERA COLONY BHOPAL M.P. (MADHYA
                           PRADESH)

                                                                                         .....APPELLANT
                           (BY SHRI A.L. PATEL - ADVOCATE FOR APPELLANT)

                           AND
                           1.    LAXMIKANT      VADONIYA    D/O     SHRI
                                 PURUSHOTTAM VADONIYA, AGED ABOUT 40
                                 YEARS, R/O GRAM KHARGONE P.O. KHARGONE
                                 THANA AND TEHSIL BARELI DISTRICT RAISEN
                                 M.P. (MADHYA PRADESH)

                           2.    PADMA VADONIYA W/O SHRI LAXMIKANT
                                 VADONIYA, AGED ABOUT 35 YEARS, R/O GRAM
                                 KHARGONE P.O. KHARGONE THANA AND TEHSIL
                                 BARELI DISTRICT RAISEN (MADHYA PRADESH)

                           3.    STATE OF MADHYA PRADESH THROUGH THE
                                 C O L L E C T O R RAISEN DISTRICT RAISEN
                                 (MADHYA PRADESH)

                                                                                     .....RESPONDENTS
                           (BY SHRI AZAD K. BAIS - ADVOCATE FOR RESPONDENT NO.1 AND
                           VINOD TIWARI - PANEL LAWYER FOR STATE)

                                 This appeal coming on for admission this day, th e court passed the
                           following:
                                                             ORDER

This Miscellaneous Appeal is preferred feeling aggrieved by the judgment

dated 18.01.2023 in RCA No.46/2017 by Additional District Judge, Bareli,

District- Raisen arising out of Civil Suit No.1-B/2017 vide judgment and decree dated 18.07.2017.

2. Facts in brief are that respondent No.2 filed a Civil Suit for recovery of Rs.6,32,000/- compensation from appellant/defendant No.2 and respondent No.1/defendant No.1 jointly and severely on the ground that respondent Nos.1 and 2/plaintiffs belong to economically weaker section and had a male child and one female child and when unable to make proper upbringing of their child, they decided to family planning and plaintiff No.2 Padma Vadoniya/respondent No.2 offered herself for Tubectomy surgery. Tubectomy surgery was conducted on 14.12.2011 at Community Health Center, Bareli, District- Raisen by

appellant/defendant No.2 and a certificate was issued. Respondent No.2 and plaintiff No.2 was intimated that surgery is successful. No pregnancy will be caused in future but plaintiff No.2/respondent No.2 conceived pregnancy and she gave birth to a female child on 21.03.2016 at Community Health Center, Khargon. She was admitted for three days on Sub-Health Center, Khargon. She is not getting the benefit of M.P. Government Scheme known as Ladli Laxmi Yojna because of second child is also a female child.

3. It is stated that conception of pregnancy is due to negligence of surgery conducted by appellant/defendant No.2 who was under the service of respondent No.3/defendant No.1. At the relevant time a notice under Section 80 of the CPC was served on defendant/respondent No.3 on 17.05.2016. Notice was not replied, then suit was filed. Appellant/defendant No.2 filed an application under Order 7 Rule 11 of the CPC on the ground that no cause of action arises in the light of State of Punjab vs. Shiv Ram 2005 Legal Eagle (SC)

4. Trial Court vide order dated 18.07.2017 (Annexure P-3) rejected the plaint. First Appellate Court vide judgment dated 18.01.2023 in RCA No.46/2017 set aside the order of trial Court and remanded back the matter to the trial Court to reinstate the case and decide the matter on merit after taking on record written statement of the defendants and framing all issues and recording of evidence.

5. Feeling aggrieved by the judgment of Fist Appellate Court, this Appeal under Order 43 Rule 1 (u) of CPC is preferred on the ground that First Appellate Court failed to see that there is no pleading in the plaint that Doctor was persuaded to the plaintiff No.2 to undergo surgery. There is no pleading in the plaint that the surgeon assured 100% exclusion of pregnancy after the surgery. There is no any pleadings in the plaint that surgeon was negligent in performing the surgery and due to that reason plaintiff No.2 became pregnant and delivered a child.

6. Heard finally at the stage of admission with the consent of parties.

7. This Court is referring the principle applicable in dealing with the application under Order 7 Rule 11 of the CPC. In para - 28 of Ramisetty Venkatana and another vs. Nasyam Jamal Saheb reported in 2023 SCC Online SC 521 it is held that :-

"we are of the opinion that the plaint ought to have

been rejected in exercise of powers under Order VII Rule XI(a) and (d) of CPC being vexatious, illusory cause of action and barred by limitation. By clever drafting and not asking any relief with respect to partition deed dated 11.03.1953, the plaintiffs have tried to circumvent the

provision of limitation act and have tried to maintain the suit which is nothing but abuse of process of court and the law."

7.1 In para - 24.4 of Dahi Ben vs. Arvind Bhai reported in (2020) 7 SCC 366 it is held that :-

"24.4. If, however, by clever drafting of the plaint, it has created the illusion of a cause of action, this Court in Madanuri Sri Rama Chandra Murthy v. Syed Jalal [Madanuri Sri Rama Chandra Murthy v. Syed Jalal, (2017) 13 SCC 174: (2017) 5 SCC (Civ) 602] held that it should be nipped in the bud, so that bogus litigation will end at the earliest stage. The Court must be vigilant against any camouflage or suppression, and determine whether the litigation is utterly vexatious, and an abuse of the process of the court."

7.2 In para - 5 of T. Arivandandam vs. T.V. Satyapal reported in (1977) 4 SCC 467, it is held that :-

"And, if clever drafting has created the illusion of a cause of action, nip it in the bud at the first hearing by examining the party searchingly under Order 10, CPC. An activist Judge is the answer to irresponsible law suits. The trial courts would insist imperatively on examining the party at the first hearing so that bogus litigation can be shot down at the earliest stage. The Penal Code is also

resourceful enough to meet such men, (Cr. XI) and must be triggered against them."

7.3 In para - 16 of ITC vs. Debt Recovery Appellate Tribunal, AIR 1998 SC 634 that has referred para-7 of K. Akbar Ali vs. K. Umar Khan and others reported in (2021) 14 SCC 51 it is held that :-

"7. In any case, an application under Order 7 Rule 11CPC for rejection of the plaint requires a meaningful reading of the plaint as a whole. As held by this Court in ITC Ltd. v. Debts Recovery Appellate Tribunal [ITC Ltd. v. Debts Recovery Appellate Tribunal, (1998) 2 SCC 70 : AIR 1998 SC 634] , clever drafting creating illusions of cause of action are not permitted in law and a clear right to sue should be shown in the plaint. Similarly the Court must see that the bar in law of the suit is not camouflaged by devious and clever drafting of the plaint. Moreover, the provisions of Order 7 Rule 11 are not exhaustive and the Court has the inherent power to see that frivolous or vexatious litigations are not allowed to consume the time of the Court."

8 . In the light of above principles, this Court is reading the plaint as a whole in meaningful manner. The plaint (Annexure A-1) contains 15 paragraphs. Paragraph No.1 mentions the description of income of plaintiffs. Paragraph No.2 mentions only that a tubectomy surgery was conducted by appellant Sandhya Khosla on 14.12.2012 at Community Health Center, Bareli, Raisen.

Paragraph No.3 mentions that at the time of surgery appellant assured the plaintiff No.2 that surgery is successful and she would not conceive. Paragraph No.4 mentions that after the surgery, she conceived and gave birth to a female child on 21.03.2016. This fact shows that plaintiff No.2 conceived after 3 and half years of tubectomy surgery and it is mentioned that due to this, the tubectomy surgery is stated to be failed. In paragraph No.5 it is mentioned that School management providing free education to the first girl child of the plaintiff and in paragraph No.6 it is mentioned that her second girl child would not get the same relief. In paragraph No.7 it is mentioned that due to failure of tubectomy surgery defendants are liable for the expenses incurred in upbringing the second girl child. In para-8 also, the details of expenses and amount of compensation claimed is mentioned. In para-9 the word "negligent surgery" is mentioned. Paragraph Nos.10 to 14 also relates to details of cause of action and compensation and their inability to pay the requisite Court fees.

9. Considering the plaint's averments, trial Court has rejected the plaint

concluding that no cause of action is disclosed from the plaint averments relying on T. Arivandandam vs. T.V. Styapal and others (supra).

10. First Appellate Court has reversed the finding on the ground that the plaint's averments clearly mentions that defendant No.2/appellant performed the tubectomy surgery of plaintiff No.2 gross negligently and the reasons for this conclusion is also recorded that in spite of assuring that plaintiff No.2 would not give birth to a child, conceiving the child certainly create a cause of action and plaintiff should be afforded an opportunity to prove those facts.

11. In State of Punjab vs. Shiv Ram 2005 AIR (SC) 3280, it is held in para -29 that :

"29. The cause of action for claiming compensation in cases of failed sterilization operation arises on account of negligence of the surgeon and not on account of child birth. Failure due to natural causes would not provide any ground for claim. It is for the women who has conceived the child to go or not to go for medical termination of pregnancy. Having gathered the knowledge of conception in spite of having undergone sterilization operation, if the couple opts for bearing the child, it ceases to be an unwanted child. Compensation for maintenance and upbringing of such a child cannot be claimed."

12. Applying the above principles in this case & reading in meaningful manner the plaint as a whole it transpires that in whole plaint the word "negligent" has been used in the line No.11 of para-7 and line No.6 of para 9 and reference of this negligence is based only on the fact that despite tubectomy surgery on 14.12.2011, she conceived and gave birth to a child on 21.03.2016. Nowhere is mentioned that when she came to know about this pregnancy, she contacted the hospital authority. On the contrary she mentions that after the tubectomy surgery, she lost her male child due to electrocution and after that plaintiff No.2 conceived.

13. In this factual scenario, the findings of trial Court were proper that no cause of action to plaintiff arises and findings of trial Court is not based on meaningful reading of the plaint as whole.

14. Appeal cannot be sustained. Accordingly, this appeal is allowed and judgment dated 18.01.2023 in RCA No.46/2017 is set aside and order of trial

Court dated 18.07.2017 is restored.

15. Parties shall bear their own cost.

(GAJENDRA SINGH) JUDGE DPS