GANGABEN MULJIBHAI PARMAR Vs. STATE OF GUJARAT

JUDGEMENT

(1.) Admit.Mr. K.M. Mehta, learned Assistant Government Pleader appears and waives service of admission for the first responent. Mr. H.S. Munshaw appears and waives service of admission on behalf of the second respondent. Third respondent is served.

(2.) The appellant herein Gangaben Muljibhai Parmar has preferred this First appeal being aggrieved by the judgment and decree passed by the Civil Judge (S.D.) Mahesana dated 9th January, 1988 whereby her suit is rejected under Order 7 Rule 11 of the Civil Procedure Code in the ground that the same was barred by limitation. The suit was filed to recover the amount of Rs. 75,000/- towards damages because, according to her, despite her undergoing family planning operation on 24th September, 1985, she delivered a child on 31st August, 1987. Thereafter, she instituted Special Civil Suit No. 241 of 1988. As usual, the District Panchayat, 2nd respondent herein, took up the defence that the suit was filed without notice to the Panchayat under the provision of the Gujarat Panchayats Act and it is such a technical contention which has prevailed over the trial Court. Undoubtedly, the plaint could not have been rejected under Order 7 Rule 11 of Civil Procedure Code, but even if the action is taken as one for damages or for tort, larger period is held to be applicable, no useful purpose will be served by admitting the present First Appeal as the large issue which is raised in the suit to recover the damages for tortuous liability because of failure of family planning operation, is no longer res integra and is covered by the judgment of the Division Bench of this Court reported in the case of Bharuch District Panchayat vs. Kanubhai Ramjibhai Patel, reported in 1996(1} Gujarat Law Herald, 584 and another judgment recently delivered by this Court {Coram: S.D. Shah, J} in First Appeal No. 579 of 1996 dated 12th August, 1997. Even if it is held that the plaint could not have been rejected as barred by limitation under the provisions of the Gujarat Panchayats Act, 1961, the judgment of the Division Bench in the case of Bharuch District Panchayat {Supra} clearly lays down the law on the subject wherein the view is taken that the family planning operations are performed in millions every year and there will be hundreds of cases where these operations fail inspite of taking all care and having performed the operation properly. But that percentage is very small eventhough figures might be running in hundreds. Percentage might be less than 1 per cent to 0.4 per cent, but it is certain that in number of cases, operations might fail and it is not possible to attribute any negligence to the Doctor. In the judgment delivered by this Court in the case of Madhuben wife of Raisingbhai in First Appeal No 579 of 1996 dated 12th August, 1997, this Court has denied the liability of the Doctor on a stronger medical expert opinion and this Court would better follow the said medical opinion. This Court has placed reliance upon the medical authority, namely the Author-Munoro Karr on "Operative Obstretrics" {VIIIth Edition) page 586. The learned author in the book has clearly stated that no method of sterilization is entirely safe and there were possiblities of failure of operation due to many natural reasons. In Chapter on "sterilization" the learned author has found that no method of sterilization is entirely safe and complete, and there are chances of its failure due to many natural reasons also. Therefore, pregnancy or fertilisation after operation is always not sufficient to jump to conclusion of negligence on the part of the doctor.

(3.) In view of the aforesaid medical opinion and in view of the fact that in the present case also, the female, namely the plaintiff knew about the pregnancy after sterilization operation and in view of the fact that child was permitted to be born thereafter, no useful purpose will be served by admitting the appeal on the short ground that the plaint could not have been rejected under Order 7 Rule 11 of the Civil Procedure Code. On merit, if the second view was possible, this Court would have definitely examined possibility of the plaintiff suceeding in the case for establishing damages of Rs. 75,000/-. But when there was already in existence, the law laid down by the Division Bench and when there is a subsequent decision of this Court based on the medical opinion, the defence on the part of the State of Gujarat as well as District Panchayat, would only be based on the binding precedences so that inviting order on some technical plea of limitation would not arise. In absence of the aforesaid two binding precedences of this Court, this Court would have been slow to uphold the order in question. But no useful purpose will be served by setting aside the order and remanding the matter to the Trial Court especially when medical opinion in the case family sterilization at Primary Health Centre by a Doctor based on medical evidence clearly establishes that there is posibillity of recanalisation of fallopion tube and that possibility cannot be ruled out in the present case also. In that view of the matter, no useful purpose will be served by admiting this First Appeal as ultimate claim based in the suit is answered in the negative by the Division Bench and by this Court on medical opinion based on the authoritative observation made by the medical expert in the subject. Therefore, this First Appeal is finally dismissed. No order as to costs.