High Court · 2007

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED 31-10-2007CORAM:THE HONOURABLE MR.JUSTICE P.JYOTHIMANIC.R.P.No.3368 of 2007 &M.P.No.1 of 2007 The Commissioner, Corporation of Chennai, Chennai-600 003. . . PetitionerVs. Kala @ Kribavathy . . RespondentThis Petition is filed against the order dated 26.09.2007 madein I.A.No.11005 of 2007 in O.S.No.3874 of 2002 on the file of theXVI Assistant Judge, Chennai.For Petitioner : Mr.R.Subramanian Senior Counsel for Mr.P.UdhayakumarFor Respondent : M/s.Thamiarasi & Associates ORDERThe defendant in the suit has filed the present revisionpetition under Article 227 of the Constitution of India. Therespondent has filed the suit as in forma pauperis claiming anamount of Rs.3,00,000/- with 18% interest per annum at the principalamount from the date of the plaint till the date of the realisationof the amount as damages for the negligence caused by the petitionercorporation in performing sterilisation on the plaintiff on10.05.1995. After the operation, the petitioner was discharged on12.05.1995 and she was paid Rs.160/- as a reward for havingundergone sterilisation. However the petitioner felt the experiencesof pregnancy on 30.12.1996 and immediately she got herself checkedup and she came to know about the pregnancy and therefore till datethe plaintiff is undergoing constant check up.2. The family of the plaintiff are in poor economic conditionand her husband is a daily labourer getting monthly income ofRs.600/-. It was only considering the poor condition of the family,the plaintiff was driven to undergo sterilisation for Rs.160/- which https://hcservices.ecourts.gov.in/hcservices/ was itself required for the livelihood of the family. It was due tothe negligence of the corporation and its medical officers, thesterilisation operation was not done properly, which has resulted inbad health of the plaintiff in course of time. Therefore, on thebasis that the medical negligence has been committed by thepetitioner corporation, the plaintiff has filed the suit for damagesas stated above. 3. It is seen that the petitioner corporation has filed thewritten statement. One of the main contentions raised by thecorporation is that the plaintiff having signed the necessaryconsent form which contains a clause that there is possibility ofspontaneous reconciliation of the surgery and therefore she isestopped from filing the suit. The corporation has further thrownthe blame on the plaintiff stating that after sterilisationoperation, she has not chosen periodically to come to the hospitalto report about the further development. Admittedly, PW1 wasexamined and when the case was posted for cross-examination of PW1,the corporation remained exparte and exparte decree was passed on14.12.2004. Then the corporation has filed an application inI.A.No.11005 of 2007 under Section 5 of the Limitation Act forcondoning the delay of 907 days in filing petition to set aside theexparte decree dated 14.12.2004. 4. In the affidavit filed in support of the petition forcondonation of delay, the only reason assigned by the corpoation isas follows;"5. I humbly submit that the above suit isDecreed on 14.12.2004 as exparte decree. I furthersubmit that it is not properly informed to thisoffice through proper channel. I humbly submit thatthis petition is neither wilful nor wanton, forabove said reason only."This is the only reason assigned by the Corporation for condoningsuch a large number of delay of 907 days in filing a petition to setaside the exparte decree especially when the trial has commenced andPW1 was examined on the witness box. Considering the reasonsassigned by the Corporation for the purpose of condoning the delayand on the basis that the respondent has already filed the executionpetition for recovery of the amount as per the exparte decree, infact arrest warrant was issued against the Commissioner ofCorporation of Chennai, the learned trial Judge, in my consideredview, correctly dismissed the petition since no reason has beenassigned by the corporation for condoning the said long delay infiling the petition to set aside the exparte decree dated14.12.2004. https://hcservices.ecourts.gov.in/hcservices/

5. I have heard the learned Senior Counsel appearing for thepetitioner corporation as well as the respondent.6. The learned Senior Counsel appearing for the petitionerwould submit that in the execution petition filed by the respondent,the petitioner corporation has deposited the entire amount andtherefore the interim order of stay can be passed so as to enablethe Court to decide the issue on merit. The learned Senior Counselalso relied upon the judgment of this Court reported in 2006(5) CTC136 (M.N.ABDUL WAHAB vs. SALEM CITY MUNICIPALITY CORPORATION)wherein in similar circumstances, while dealing with the delay of482 days in filing a petition to set aside the exparte decree and onconsidering the factual position contained therein this Court hascome to the conclusion that the delay cannot be termed as dilatorytactics by the corporation and allowed the condone delay petition onpayment of costs Rs.1500/-. That was the suit for declaration andthe stand of the corporation in that case was that the corporationwas not at all aware of the suit in which the expart decree waspassed and it was only after the execution petition was filed, thecorporation came to know for the first time and in thosecircumstances the condone delay petition was filed. It wasconsidering the said factual position, this Court has allowed theapplication on payment of costs. The said judgment relied on by thelearned counsel appearing for the petitioner, is not applicable tothe facts and circumstances of this case. The case on hand is notthe case of sufficient reason for condoning the delay. But It is thecase, where no reason has been assigned.7. In STATE OF NAGALAND v. LIPOK AO AND OTHERS, 2005 (3) SCC752, the Honourable Apex Court considering the delay of the State infiling an appeal, in paragraph 5 has held as follows;" It is axiomatic that decision are taken byofficers/agencies proverbially at a slow pace andencumbered process of pushing the files form tableto table and keeping it on the table forconsiderable time causing delay – intentional orotherwise – is a routine. Considerable delay ofprocedural red tape in the process of their makingdecision is a common feature. Therefore, certainamount of latitude is not impermissible. If theAppeals brought by the State are lost for suchdefault no person is individually affected butwhat in the ultimate analysis suffers, is publicinterest. The expression "sufficient cause"should, therefore, be considered with pragmatismin a justice-oriented approach rather than thetechnical detection of sufficient cause forexplaining every day's delay. The factors which https://hcservices.ecourts.gov.in/hcservices/ are peculiar to and characteristic of thefunctioning of the governmental conditions wouldbe cognizant to and requires adoption of pragmaticapproach in justice-oriented process. The Courtdecides the matters on merit unless the case ishopelessly without merit."8. As I have narrated above, a reading of the plaintcategorically shows that the medical negligence alleged to have beencommitted was of the year 1995 and an exparte decree came to bepassed on 14.12.2004 and after a lapse of more than 12 years makingthe victim to undergo the agony of trial especially in the case oftortious liability will certainly cause prejudice to the plaintiff.In view of the same, I do not see any reason, to interfere with theorder of the learned trial Judge and there is no illegality orirregularity in the order passed by the Court below. The revisionfails and the same is dismissed. No costs. Consequently, connectedmiscellaneous petition is closed.Sd/-Asst. Registrar./true copy/Sub Asst. Registrar.jikrTo1. The Registrar,City Civil Court,Chennai.1 cc to Mr.P. Udayakumar, Sr. 657671 cc to M/s. Thamizarasi, Associates, SR. 65554C.R.P.(PD).No.3368 of 2007SKV (CO)kk 13/11