PARTITION SUIT

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED :   .06.2010

CORAM:

THE HON'BLE MR.JUSTICE V.PERIYAKARUPPIAH

A.S.No.314 of 2000
&
C.M.P.No.14399 of 2000


1. Government of Tamil Nadu,
    rep.by the District Collector,
    Erode.

2. Authorised Officer, Land Reforms
    Periyar District,
    Erode at Coimbatore.   .. Appellants

      vs.

1.  Gandhimathi
2.  Sarojini
3.  Angaryarkkanni
4.Amaravathy
5.N.K.Natarajan .. Respondents
Appeal filed under Order 41, Rule 1 and Section 96 of C.P.C against the Judgment and Decree of the learned Subordinate Judge of Dharapuram dated 21.12.1989 in O.S.No.98 of 1982, dated 21.12.1989.

For Appellants         : Mr. V.Ravi,
Special Government Pleader (AS)

For Respondents(1 to 4) :  Mr. Sanjay for Mr.V.Nicholas
For Fifth Respondent     :  No Appearance



J U D G M E N T

This appeal is directed against the Judgment and decree passed by the learned Subordinate Judge, Dharapuram in O.S.No.98  of 1982 dated 21.12.1989.

2. The appellants herein were the defendants before the lower Court.  The suit was filed by the respondent/plaintiff against the appellants/defendants (a)  for declaration that the order of the third respondent is null and void (b) for partition of 2/5 share in the suit property (c) to pay the costs of the suit and (d) for other reliefs.  The suit was decreed without costs and the defendants have preferred the present appeal.

3. The  brief facts of the case relied upon by the plaintiff before the lower Court would be as follows:-
(a) Originally the suit property belonged to one Kanni Chettiar.  The said Kanni Chettiar died on 27.10.1948 leaving behind him the plaintiffs and the first defendant and his wife deceased Muthammal.  Even though the plaintiffs are residing in several places, they lived together in the village Soman Uthu.  After the death of the said Kanni Chettiar, his wife Muthammal and the first defendant were entitled to half share each of the suit properties.  Since the first defendant was only a minor, his mother Muthammal was looking after the entire suit properties. After attaining majority, the first defendant got his share and enjoyed separately.   Even though there was no partition deed, both the first defendant and the mother Muthammal enjoyed the properties by mutual division to suit their convenience.  They also separately cultivated their lands and mortgaged their properties.
(b) Whileso, the mother Muthammal died during the year 1976 leaving behind her the plaintiffs and the first defendant as her heirs. Thus, the plaintiffs and the first defendant are each entitled to 1/5th share in property of the deceased Muthammal.  Thus, the plaintiffs 1 to 4 are each entitled to 1/10th share, in the entire suit property and 2/5 share in total, and the first defendant is entitled to 3/5th share in the suit properties.  Thus, the entire suit properties are enjoyed in common by the plaintiffs and the first defendant.
(c) The second defendant is administering Land Reforms in the State of Tamil Nadu through the third defendant and during the said period, the third defendant under his authority purported to act under Land Reforms Act passed an order dated 16.6.1979 declaring an extent of 6 acres and 25 cents (items 7 and 8 of the suit properties) as surplus under Section 18 (10 of the Land Reforms Act) as if the entire properties belonged to the defendant as on 03.1.1979. The said order is null and void and the same is not  binding on the plaintiffs. No notice was sent to the plaintiffs nor any enquiry held was to the knowledge of the plaintiffs. The said order is passed in order to defeat the rights of the plaintiffs. If the third defendant had given notice to the plaintiffs regarding his intention to take the suit properties as excess, the plaintiffs would have an opportunity to put forward their lawful claim.   If the third defendant had taken proper notice and enquiry he would have verified all the registered documents of Muthammal's separate dealings.    He would not declare any excess land, if the Muthammal's separate property were considered and rightly left out of the holding of first defendant and the first defendant is not in the family.
(d) The plaintiffs are also cultivating the share of the first defendant, as his leasees. On several occasions the plaintiffs have executed lease deeds and the same are with the first defendant.   The first defendant had also taken the signatures of the plaintiffs on blank papers during the lease season.  The plaintiffs apprehend that the first defendant and 3rd defendant might have misused those papers.  Under the said void orders, the third defendant has taken steps to allot the lands to various persons.   Hence, it is necessary to declare the said order as void.   The plaintiffs also issued a legal notice to the defendants,  but they did not care for the same.  Hence, the suit.
4. The first defendant was Set exparte, by the lower Court.
The contentions of the third defendant adopted by second defendant before the lower Court are summed up thus:-
(a)  The defendants state that the suit is not maintainable in law and on facts.   The first defendant held agricultural lands to an extent of 20.50 std acres. The third defendant had, after conducting due enquiry, passed an order under Section 9 (2) (b) of the Land Ceiling Act on 22.8.1973 and the draft statement was also published in the gazette.   Aggrieved by the said publication, the land owners filed their objections.  After considering the said objections, the final statement under Section 12 of the Act was published in the Gazette.  A notification under Section 18(1) of the Act was published in the gazette declaring an extent of 6.25 acres as surplus.
(b)  Thereafter, Form 'C' pertains to the assignment of surplus lands was also issued.  After receiving the applications within the time prescribed, the 'D' notice inviting objections from the public for assignment to the persons applied for assignment was issued and the same was published in the village.   Since no objections were received from any body, the Special Tahsildar (L.Ref) enquired the applicants and submitted his report.   After examining the report submitted by the Special Tahsildar, the Authorised Officer (L.Ref) Erode has passed an order assigning the surplus lands to three persons. Thus, the deed of assignment in form 'F' was also issued to the assignees.  After issuance of form 'F', the land owners had threatened the assignees by not allowing them to enter upon the land and creating troubles to the assignees.
(c) The villagers of Chinnakkampalayam including the land owner S.K.Natarajan, sent a petition to the assignment officer stating that proper publication for the assignment of surplus lands was not made in the village and requested to publish another notice.  Moreover, the plaintiffs have also applied for assignment of the lands.  Since the said applications were not  received in time, they were rejected.   When all attempts to get back the land have failed, the land owner instigated the plaintiffs, who are his sisters, to file the present suit, that too, even  after the assignment of the  said lands to landless poor.
(d) Even though the appeal and Revision provisions are available against the order of assignment, the plaintiffs and the first defendant have not utilised the same.   The defendants state that as per Section 107 of the Land Ceiling Act, no civil Court shall have jurisdiction to decide or deal with any question which is by or under the Land Ceiling Act required to be decided or dealt with by the Authorised Officer, Land Tribunal or Land Commissioner or other authority. The suit is barred by limitation.  Therefore, they prayed for dismissal of the suit.
5. During a full fledged trial, the lower Court had examined the fourth plaintiff as P.W.1 and marked Exs.A1 to A12 on the side of the plaintiffs and D.W.1 and D.W.2 were examined and Ex.B1 was marked on the side of the defendants and had come to a conclusion of  decreeing the suit. Aggrieved by the said judgment and decree, the defendants 2 & 3 have preferred the present appeal.

6. Heard Mr.V.Ravi, the learned Special Government Pleader appearing for the appellants/ defendants and Mr. Sanjay, the learned counsel for the respondents 1 to 4 / Plaintiffs.

7. On a careful perusal of the pleadings, the evidence of both sides before the lower Court, the judgment and decree passed by the lower Court, the grounds in the appeal memo and the arguments advanced on either side, this Court could see that the following points are necessarily to be decided in this appeal:-
1.Whether the suit filed by the plaintiff for partition and separate possession of the properties is not maintainable in view of Section 107 of the Land Reforms (Ceiling) Act ?
2. Whether the order passed by the third defendant on 16.06.1979 in 245/MR/1/17.70 is null and void and without any jurisdiction ?
3. Whether the plaintiffs are entitled for partition and separate possession of their 4/10 share from the suit properties ?
4.Whether the judgment and decree passed by the lower Court are liable to be set aside and the appeal is allowable ?
5. To what relief the appellant is entitled for ?

8. The learned counsel for the appellant, the Addl.Govt.Pleader (Spl.) would submit in his argument that the Court below has failed to note that the Authorised Officer (Land Reforms) has properly initiated  proceedings relevant to the suit properties as per the provisions of land reforms (Fixation of Ceiling) Act and also failed to draw its attention to the Section 107 of the said Act. He would further submit in his argument that the draft statement made under Section 10(1) of the act had been served on the pattadar / plaintiffs on 31.10.1970 itself, and the objections raised by them were promptly rejected by the officer and if the plaintiff had any grievance over the said order, they have to prefer the remedies under the said act, since the Civil Court have no jurisdiction to interfere with the domain of the Authorised Officer. He would also bring it to the notice of this Court that under Section 107 of Land Reforms (Fixation of Ceiling) Act the Civil Court has no jurisdiction and therefore, the suit filed by the plaintiffs for declaration that the order passed by the Authorised Officer was null and void, cannot be adjudicated by the Civil Court. He would further submit in his argument the correct remedy is to prefer the appeal before the Appellate Authority as prescribed in the Act and therefore, the plaintiff who had chosen the wrong forum, should not have been awarded with the reliefs by the lower Court and the final order containing statement that 3.12 acres in F.S.No.264 / 1E and 3.12 acres in F.S.No.264/3 A 2 were declared as surplus lands and the said order was also served on the pattadar concerned. He would further submit in his argument that the judgment and decree passed by the lower Court was without jurisdiction and therefore, the suit has to be dismissed.

9. He would again submit in his argument that according to the said Act, an individual can hold 15 standard acres but the pattadar was in possession of 19.046 standard acres on the notified date and therefore, the action taken by the third defendant was in order. He would submit in his argument that whenever a declaration is made regarding such surplus lands those lands would vest with Government and therefore, the relief sought for by the plaintiffs cannot be afforded in respect of those items of properties. He would further submit in his argument that the said order was also published in gazette and action was already taken to distribute to the said surplus lands to the landless poor and patta was also issued to three poor persons namely N.Subramnian belonging to Backward Class, N.Chinnappan belonging to Scheduled Caste and C.Palanisamy belonging to Scheduled Caste and they also took possession of the land on 23.08.1979. He would further submit in his argument that the plaintiffs have been instigated by the first defendant to launch a claim if possible as an afterthought.

10. He would also submit in his argument that the plaintiffs themselves have participated in the assignment proceedings and they sought for assessment of the surplus lands and on their failure and to get surplus lands through assignment, they have also taken this method to achieve their objects. He would further submit that Section 107 of the Act, even though replaced by Section 77(G), was in force at the time of the filing of the suit and therefore, the judgment and decree passed by the lower Court which is a Civil Court has to be set aside and the appeal has to be thus allowed.

11. The learned counsel for the respondents 1 to 4 would submit in his argument that the third defendant Authorised Officer did not initiate the proceedings in accordance with law and he had not given notice to all the persons who are having title to the suit property but had given notice only to the first defendant who was enimical towards the plaintiff. He would further submit in his argument that the said non-ceiling of notice to the lawful owners of the property will be without any jurisdiction, affecting the fundamental principles of judicial procedures. He would further submit in his argument that the properties were originally belonged to one Kannichettiyar, who died on 27.10.1948, and on his death his widow Muthammal, the mother of the plaintiff and first defendant along with first defendant inherited the suit properties as per the rights available under the then under Act and thereafter, upon the introduction of Hindu Succession Act on 17.06.1956, the right held by the said Muthammal ripen into an absolute right and thereby, she had equal right with her son the first defendant and continued to be in joint possession with her son till her death happened on 23.02.1976. He would further submit in his argument that the said Muthammal had also mortgaged certain properties along with the first defendant, her son and established her right over the properties left by Kanni Chettiyar. The said Muthammal was also one of the rightful owners of the suit properties and the proceedings initiated by the third defendant under the Land Reforms (Fixation and Ceiling) Act was not given notice to the said woman but it had taken place with a connivance of the first defendant. The long  delay in giving notice to the said Muthammal would render the entire proceedings before the third defendant void. After the death of said Muthammal on 23.02.1976, the plaintiffs being her daughters and the first defendant inherited the properties belonging to the said Muthammal and thus, the plaintiff stepped into the shoes of late Muthammal and they are deemed by aggrieved parties by the act of third defendant. He would further submit in his argument that the Civil Courts are having jurisdiction, whenever, the right to property has been disturbed by an act of any person, including the Government, without following the procedures mentioned in the said Act. He would further submit in his argument that the third defendant, if really interested in finding the truth as to whether the holding of the first defendant was exceeding the limits contemplated under the Act, he would have enquired about the rightful person and if accordingly, any notice is given to the deceased Muthammal who was alive then, the third defendant would not have found surplus lands to be taken by the Government under the provisions of the said Act. Even, if we construe that Section 107 of the Act is applicable to the present case, the jurisdiction of the Civil Court is attracted by virtue of basic violation affecting the rights of Muthammal and  after her death, the rights of the plaintiffs. The said Muthammal was not made as a party to the said proceedings and therefore, the plaintiffs who are claiming the right on the foot of Muthammal need not go for any appeal as prescribed under the said Act.

12. He would draw the attention of the Court to catena of the judgments of the Hon'ble Apex Court in support of his case. Accordingly, he cited a judgment reported in AIR 1974 SC 1069 in between K.C.Dora v. Guatareddi Annamanaidu and others.

13. Yet another judgment reported in 1991 supp (1) SCC 167 in between GURBAX SINGH Vs. FINANCIAL COMMISSIONER and another. He can also draw the attention of the Court to a judgment reported in 2000 (9) SCC 272 in between BALAWWA AND ANOTHER Vs. HASANABI AND OTHERS.  The judgment of Punjab and Haryana High Court reported in 2004 AIHC4829 has also been cited for the aforesaid purpose.

14. He would further submit in his argument that the first defendant had obtained signatures in so many papers from the plaintiff and such papers should have been utilised for claiming the assignment of the surplus land from the Government by way of assigning and the said submission would not bind the plaintiffs, since they are claiming the right over the said property under her mother deceased Muthammal as her legal representatives. He would further submit in his argument that even otherwise, the plaintiffs' statutory right cannot be infringed by the proceedings of the third defendant and there cannot be any estoppel against the rights flowing out of the statute. Therefore, the lower Court has got ample jurisdiction to consider about the sustainability and maintainability of the proceedings held by the third defendant and the judgment and decree passed by the lower Court are within the jurisdiction and therefore, not liable to be interfered with. Therefore, he would request the Court to dismiss the appeal and to confirm the judgment and decree passed by the lower Court.

15. I have given anxious thoughts to the arguments advanced on either side.
Point 1 and 2:
For convenience the ranks of parties before the lower Court are maintained in the discussion. The suit was filed by the plaintiffs for declaration that the order passed by the third defendant in the suit filed by the plaintiff for partition and separate possession of the properties is not maintainable in view of Section 107 of the Land Reforms (Ceiling) Act was null and void and without any jurisdiction since there was no notice issued to Muthammal, the mother of the plaintiff who was also interested in the suit properties for taking surplus land if any and the findings reached by the third defendant and the subsequent proceedings taken by the authorities on the basis of its order are all null and void and it would not bind the plaintiffs right over the properties. The case of the plaintiffs that the property was originally belonged to Kanni Chettiyar was not disputed. The relationship of the plaintiffs and the first defendant with the said Kanni Chettiyar is also not disputed. The case put forth by the plaintiffs that Muthammal was the wife of Kanni Chettiyar was also not denied.

16. According to the evidence of PWs we could see that the Kanni Chettiyar was dead on 27.10.1948, and his death certificate was produced as Ex.A1. Similarly, we could see that Muthammal, the wife of Kanni Chettiyar and the mother of the plaintiffs and the first defendant died on 23.02.1976, her death certificate is produced as Ex.A2. There is no dispute that the properties were originally belonged to the said Kanni Chettiyar. PW1's evidence would also go to prove the same.

17. On the date of death of  Kanni Chettiar in the year 1948, the right of a widow was a restricted one. But, however it was enlarged  by the provisions of section 14(1) of Hindu Succession Act provided the said Muthammal was in constructive possession of the said properties of her husband. As far as this case is concerned, the said Muthammal had executed a sale deed along with the first defendant to one Vedamuthu and Kamalam and it is produced as Ex.A5. Therefore, we could see that the said Muthammal was dealing with the properties of her own with regard to the properties derived from Kanni Chettiar in the year 1959. Therefore, we could safely come to a conclusion that the said Muthammal had also jointly possessed and enjoyed the properties devolved upon her on the death of Kanni Chettiar in the year 1948. Therefore, the suit properties which were belonging to Kanni Chettiar should have been held by the  first defendant and the Muthammal jointly. Ex.A7 was produced by the plaintiffs, as the proceedings of the third defendant in finding the surplus lands. In the said proceedings it can be easily found that no notice was issued to the said Muthammal at the time of initiating the proceedings, in Ex.A7. Subsequently, the said Muthammal died and no doubt the plaintiffs and the first defendant were the legal heirs of the deceased Muthammal. Even after her death, it has not been brought to the notice of the plaintiffs about the land reform proceedings.  It has been categorically admitted by DW1 that whenever, the proceedings have been initiated under Section 9(2) of the Land Reforms Act, notice should have been issued to all the persons interested in the said properties. He had categorically admitted that no notice was issued to the plaintiffs, as per the said mandatory requirement. It has also been admitted by DW1 that during the initiation of the said proceedings, the wife of Kannichettiar i.e. Muthammal was also alive and she died only on 23.02.1976 and no notice was issued to the said Muthammal. He had also categorically admitted that since D1 name was present in revenue record, notice was issued only to the first defendant. Therefore, it is clear from the evidence of DW1 that no notice was issued either to Muthammal or to the plaintiff in respect of the proceedings initiated under Section 92 of the Act. The defendants have produced Ex.B1 an application dated 13.06.1979, sent by his fourth plaintiff to assign the excess land. The said application was admitted in evidence subject to objection. According to Ex.B1, the fourth plaintiff had applied for the assignment of the surplus land. It was argued by the learned Additional Government Pleader that she herself had applied for assignment and therefore she could no about the land reforms proceedings and on that score itself the order passed by the third defendant should be upheld.  Ex.B1 was in relation to the assignment of lands. Whether the said application, even if true, would estop the plaintiffs from claiming any relief before the Court, is the question. The right of the plaintiffs over the suit properties were derived under the provisions of Hindu Succession Act. It is a statutory right and it cannot be affected by way of any estoppel.  It is an admitted fact that no notice was sent either to Muthammal or to the plaintiffs at the initiation of the land reforms proceedings. Therefore, the plaintiffs right derived under the statute cannot defeated by the way of any submission for the assignment of the lands.

18. Now, we have to see as to whether the claim of plaintiffs could accorded or is liable to be dismissed as barred under Section 107 of the Act. Section 107 of the Act would run thus:-
"107. Bar of Jurisdiction of Civil Courts:- Except as otherwise provided in this Act, no civil court shall have jurisdiction to decide or deal with any question which is by or under this Act required to be decided or dealt with by the authorised officer, Land  Board, the Land Commissioner, the Land Tribunal or other authority."                                  

19. According to the said section that the question which have to be dealt with by the authorised officer, Land power and Land Commissioner, the land tribunal or other authorities cannot be decided by the Civil Court. No doubt, the domain of the authorised officer would be as to whether the properties held by the person is more than the standard acres as stipulated in the said act. Any such  order passed by the authorities cannot be questioned by the person to whom the notice was given, since Section 107 would be a bar.

20. As laid down by the Honourable Apex Court reported in AIR 1974 SC 1069 in between K.C.Dora and others v. Guatareddi Annamanaidu and others. The following passage is applicable to the present case.    
"33.   ... It was pertinently added that this exclusion of the jurisdiction of the Civil Court would be subject to two limitations. First, the Civil Courts have jurisdiction to examine into cases where the provisions of the Act have not been complied with or the statutory tribunal has not acted in confirmity with the fundamental principles of judicial procedure. The second is as regards the exact extent to which the powers of statutory tribunal are exclusive. The question as to whether any particular case falls under the first or the second of the above categories would depend on the purpose of the statute and its general scheme, taken in conjunction with the scope of the enquiry entrusted to the tribunal set up and other relevant factors."

21. The yet another judgment of the Honourable Apex Court reported in 1991 supp (1) SCC 167 in between GURBAX SINGH Vs. FINANCIAL COMMISSIONER and another would run as  follows :-
"19.    ... It is true that where the special tribunal or authority acts ultra vires or illegally, the civil court has by virtue of Section 9 of the Civil Procedure Code power to interfere and set matters right. As was laid down by the Judicial Committee of the Privy Council in Secretary of State v.Mask and Co., if the provisions of the statute have not been complied with or the statutory tribunal has not acted in confirmity with the fundamental principles of judicial procedure, the civil courts have jurisdiction to examine  those cases. This rule was reiterated by the Supreme Court in State of Kerala v. N.Ramaswami Iyer and Sons."

22. Similar view was expressed in yet another judgment of Honourable Apex Court reported in 2000 (9) SCC 272 in between BALAWWA AND ANOTHER Vs. HASANABI AND OTHERS. The relevant passage would run as follows : -
" 8.   ... it is difficult to hold that the Tribunal had the jurisdiction to grant the said relief so as to oust the jurisdiction of the civl court, Under Section 48 A, the Tribunal can only grant the relief of declaring the occupancy right in favour of an applicant provided the preconditions for the same are satisfied, namely, that the land was in the possession of the tenant concerned on the relevant date. That being the position and the Tribunal under the Land Reforms Act not having the jurisdiction to grant relief of partition, the civil court itself has the jurisdiction to entertain the suit for partition. The first contention of the learned counsel for the appellants is, therefore, devoid of any force."

23. The aforesaid judgment of Hon'ble Apex Court would go to show that when the proceedings of Authorised Officer is 'ultra vires' and against the procedures be followed in accordance with statute, such an act can be questioned before the Civil Court, despite the  jurisdiction is barred.  Section 9 of CPC is applicable and operative then and the Civil Court will have the jurisdiction.  In the instant case, the evidence of DW1 would go a long way to show that there was no notice issued to the mother Muthammal or after her death to the plaintiffs in respect of the proceedings for ascertaining the surplus lands. Therefore, the basic requirements for conducting a judicial procedure was not followed by the third defendant. Therefore, the entire proceedings are shattered and 'ultra vires'. The rights of the plaintiffs being derived from statutory provisions cannot be defeated by a defective procedure followed by the third defendant.    

24. According to the provisions of Hindu Succession Act the mother Muthammal was entitled to the properties held by Kanni Chettiar along with first defendant and after her death, the plaintiffs are entitled to the said properties by virtue of the same provisions of the said Act and the said rights of plaintiffs were not considered by the third defendant and such statutory rights shall not be defeated by virtue of any proceedings held by the third defendant under Land Reforms Act. If really notice were issued in the proceedings under Section 9 (2) of the act, the right of Muthammal or the rights of plaintiffs were considered at the time of passing the order declaring the surplus land. There may not be any surplus lands since the said Muthammal or the plaintiffs would also have the shares in the properties left by Kanni Chettiar. Therefore, the initiation of the proceedings and the procedures held by the third defendant is ultra vires and basically erroneous and it is affecting the rights of the plaintiffs. Moreover, this Court is dealing with the validity of the procedure held by the third defendant and it is not deciding with any issue to be decided by the Authorised Officers. No doubt, the relief of partition sought for by the parties cannot be granted by the  authorised officer. The appellate authorities constituted under the said act cannot also grant any declaratory relief or the relief of partition sought for by the plaintiffs. The plaintiffs were not parties to the proceedings held under Section 9 (2) of the said Act and therefore, they cannot also agitate the right before the Authorised Officer or any other appellate authorities under the said Act. Therefore, the principles laid down by the Honourable Apex Court in the aforesaid judgments are squarely applicable to the present case and the Civil Court has got jurisdiction to entertain the dispute and to pass orders. Therefore, Section 107 is not applicable to the present case and the suit is maintainable as admitted by DW1 that there was no notice issued either to Muthammal or to the plaintiffs in respect of the proceedings initiated under Section 9 (2) of the act and therefore, the entire proceedings without impleading the said Muthammal or the plaintiffs who are also the owners of the properties having derived lawful rights in the properties, are certainly not valid from its initiation. Accordingly, both points are decided against the appellants.

25. Point. 3 :
In the discussion held above it has been categorically found that the original owner Kanni Chettiar died in the year 1948 leaving behind his wife Muthammal, son and the first defendant and the plaintiffs 1 to 4. According to the evidence available, the widow of Kanni Chettiar namely Muthammal derived right over his properties for residence and also for maintenance in the year 1948.  The said right of Muthammal was alive and she had the said right ripen into an absolute estate by virtue of provisions of Section 14 (1) of Hindu Succession Act. We have already dealt with the dealing of the property by the said Muthammal along with the first defendant during her life time as Ex.A6. Therefore, we could see that the said Muthammal, the mother of the plaintiffs held the properties derived from her husband Kanni Chettiar along with her first defendant and enjoyed them jointly. It is also an admitted fact that the said Muthammal died in the year 1976 leaving the plaintiffs and the first defendant as her legal heirs. Therefore, the said Muthammal was found entitled to 1/2 share in the property left by Kannichettiar and the first defendant was having 1/2 share and the said half share belonging to Muthammal devolved upon the plaintiffs 1 to 4 and the first defendant equally, when her death took place in the year 1976. Therefore, the plaintiffs 1 to 4 and the first defendant would take 1/5 share equally in the said 1/2 share of the property derived by Muthammal from out of the estate of her husband Kanni Chettiar.  indisputably the whole of suit properties belonged to Kanni Chettiar and thereafter, they were held by Muthammal and the first defendant and after the death of Muthammal, they devolved upon the plaintiffs and the first defendant as per law. Accordingly, we could see that the first defendant would have a share of 1/2 + 1/10  and the plaintiffs are each having 1/10 share in the properties. Therefore, the plaintiffs are collectively found to have been entitled to 4/10 share of the suit properties.  In the aforesaid circumstances, the plaintiffs are found  entitled to the partition and separate possession of suit property. Accordingly, this point is decided against the appellant.

26. Point. 4:
In view of my findings reached in points 1 to 3 that the plaintiffs are entitled to the reliefs sought for, as asked for by them before the lower Court and the lower Court had also come to the similar conclusion and decreed the suit filed by the plaintiff. This Court sees nothing to interfere with the judgment and decree passed by the lower Court and accordingly, the judgment and decree passed by the lower Court are confirmed and therefore, the appeal is not allowable. Accordingly, this point is also decided against the appellant.

27. Point. 5 :
In view of my findings reached in the aforesaid points, the judgment and decree passed by the lower Court are confirmed and accordingly, the appeal is dismissed with costs.

In fine this appeal is dismissed with costs. Consequently, connected Civil Miscellaneous Petition is also dismissed.









ssn

To

The Subordinate Judge
Mayiladuthurai

The suit was filed by the first respondent/plaintiff against the second respondent/first defendant and the appellants /defendants 2 & 3 claiming of a sum of Rs.2,00,000/

IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED :    10.06.2010
CORAM:
THE HON'BLE MR.JUSTICE V.PERIYAKARUPPIAH
A.S.No.97 of 1999

1. The Medical Superintendent
   General Hospital, Karaikal
2. The Union of India rep.by its
    Chief Secretary, Pondicherry .. Appellants
      vs.

1.Rasathi
2.Kalavani .. Respondents
Appeal filed under Section 96 of C.P.C against the Judgment and Decree of the learned Additional District Judge, Pondicherry at Karaikal in O.S.No.5 of 1997, dated 09.4.1998.

For Appellant     : Mr. R.Natarajan

For R1   :   Mr.S.Sounthar
For R2   :   No Appearance


J U D G M E N T

This appeal is directed against the Judgment and decree passed by the learned District  Judge, Pondicherry  in O.S.No.5 of 1997 dated 09.4.1998.

2. The suit was filed by the first respondent/plaintiff against the second respondent/first defendant and the appellants /defendants 2 & 3  claiming of a sum of Rs.2,00,000/- as compensation along with interest at 12% p.a from the date of plaint till the date of realisation and costs.  The suit was partly decreed with proportionate costs and the defendants 2 and 3 have preferred the present appeal.

3. The  brief facts of the case stated by the plaintiff before the lower Court would be as follows:-
a) The plaintiff is a house wife and her husband is employed as a petty merchant selling broom sticks and mats by carrying them on the bi-cycle.  They have one son and one daughter. In April 1994, the third child conceived, was required by the plaintiff to be terminated as she is unable to take care of the third child due to her ill-health and poor economic conditions.  Therefore, she was admitted in the Government Hospital, Karaikal to terminate the unwanted pregnancy. After abortion, Tubectomy Operation was done on the plaintiff on 22.4.1994 by the first defendant.  The plaintiff was discharged on 27.4.1994 and subsequently treatment was also taken by the plaintiff from the 1st defendant personally at her clinic.  But after some time, the plaintiff found the presence of some foreign material in her womb.   Since the plaintiff found that the operation of tubectomy was not properly done, she approached the first defendant for treating the above grievances.  The first defendant after examining the plaintiff has stated that there is no child in the womb of the plaintiff.  But the plaintiff has been feeling the presence of some foreign material in her womb.  The confirmation by the 1st defendant that there is no foreign material in the uterus of the plaintiff was recorded in the prescription issued by the 1st defendant. But the plaintiff was not confident in the statement of the 1st defendant which resulted her in taking further treatment with the other doctor.  On examination it was found that the statement of the first defendant was not correct.
(b) The plaintiff was unable to go for further treatment in Karaikal itself because the said future treatment would be under the supervision of the 1st defendant only and the plaintiff apprehended  very serious prejudice on her  health.  Therefore, the plaintiff was forced to take treatment from 15.7.1994 to 28.7.1994 in the General Hospital, Pondicherry.   The treatment and other reports in the General Hospital reveals that due to imperfect and irregular treatment of terminating the unwanted pregnancy on 22.4.1994 by the  1st defendant, the corpus of the child was not fully removed and unwanted portion of ill formed child was allowed to be inside the womb of the plaintiff while the tubectomy operation was done to the plaintiff.   Therefore, the  plaintiff was made to suffer by very serious setback in her normal health.    After the treatment at General Hospital, Pondicherry by removing the ill-formed child from the uterus of the plaintiff, again the operation of Tubectomy was done on the plaintiff. In view of the improper operation done by the defendants, the plaintiff lost her health and suffered mental agony.  Hence, she filed the suit claiming compensation for a sum of Rs. 2,00,000/- along with interest and costs.

4. The contentions of the first defendant before the lower Court are summed up thus:-
(a) It is true that the medical termination of pregnancy was conducted on 22.4.1994 by the 1st defendant and during the process of operation, a foetus of about 8 weeks size was found to be in the womb of the plaintiff and it was removed along with placenta. The 1st defendant took every diligent care to see that nothing unwanted is left out in the uterus. In continuation of the same process and after the M.T.P. was done, the Assistant doctor, Dr.Uma Maheswari started doing tubectomy.   The M.T.P operation was a total success and there was absolutely no complaint whatsoever from the plaintiff till she was discharged.  On 27.4.1994, at the time of discharge, she was advised to report to the out patient department after a month or even before a month in case she felt any difficulty or felt any complaint to her health.  She did not come to the OPD, even after a month as advised by the 1st defendant. But she came to the General Hospital, Karaikal only in the first week of July with complaints of irregular bleedings and a feeling of rolling movements inside her abdomen.    On examination, the uterus was found to be about 12 weeks size and as the ultra sonography was out of order on service  at that time, she was advised to come to the G.H, Kariakal  a few days later for ultra sonography for diagnosis and for further treatment.  Contra to the advise, the plaintiff voluntarily admitted for medical treatment at General Hospital, Pondicherry and it was found that she was pregnant with 10-12 weeks size in the gravid uterus.   Therefore, she underwent medical treatment and later re-tubectomy was also performed.
(b) From the foregoing statements of the facts which are verifiable with the relevant entries in the relevant case sheet, the operation of M.T.P. was done  by this defendant and it was neither defective nor otherwise faulty.   The later pregnancy which warranted abdominal hysterotomy dated 18.7.1994 at Pondicherry was probably due to the refusion of the Fallopian tubes.   In tubectomy operations, it is the considered view of the  experts from all over the world that such a possibility of refusion of fallopian tubes, in spite of diligent and perfect techniques for which neither the doctor concerned nor the medical institutions could be held responsible or liable.   Therefore, the first defendant is not guilty of negligence and carelessness in handling the medical problems.  Hence, she prayed for dismissal of the suit.

5. The contentions of the second defendant before the lower Court are summed up thus:-
(a) It is true that the plaintiff was admitted on 21.4.1994 in the Government Hospital, Karaikal for medical termination of pregnancy and for tubectomy. The plaintiff was under care and treatment of the 1st defendant with the over all supervision of the second defendant.  The plaintiff was discharged on 27.4.1994 and during that period there was absolutely no  complaint of any type from the plaintiff.  In the suit at reply, it is complained that something unwanted was left out in the uterus of the plaintiff as she was alleged to have suffered from irregular bleedings and a feeling of rolling movements inside her womb.   This kind of disorder or inconvenience or difficulty was reported to the Government Hospital, Karaikal in the first week of July 1994 and not within the month of May or June. It is pertinent to point out at this stage that the plaintiff had not reported to the OPD Government Hospital, Karaikal after a month from the date of discharge.
(b) On examination of the uterus of the plaintiff, she was suspected to have possessed of a foetus of about 12 weeks size and as the ultra sonography was out of order at that time  she was advised to come to the Government Hospital, Karaikal a few days later for ultra sonography for proper diagnosis and for further treatment but the plaintiff did not turn up.  But the plaintiff on her own accord had gone to Pondicherry and got herself admitted in the Government Hospital, Pondicherry.  On 15.7.1994, from the verification of the case sheet pertaining to the plaintiff and details of the treatment given to her at Government Hospital, Pondicherry,it was found that she was pregnant with 10-12 weeks size foetus in the gravid uterus.  Therefore, an operation had been performed on her abdominal region.  She had undergone abdominal hysterotomy on 18.7.1994 in the said hospital at the hands of a senior doctor. Re-tubectomy was also performed in the same sitting in view of her fresh pregnancy.
(c) From the foregoing statement of facts, which are verifiable with relevant entries in the relevant case sheet, the operation of M.T.P done by the 1st defendant was neither defective nor otherwise faulty. The later pregnancy which warranted abdominal hysterotomy on 18.7.1994 at Pondicherry was probably due to the re-fusion of the Fallopian Tubes. In tubectomy operation, it is the considered view of the experts world over that a possibility of re-fusion of fallopian tubes is there in spite of diligent handling and perfect techniques for which neither the doctor concerned nor the medical institutions could be held responsible or liable. Even if the M.T.P operation was a failure as alleged by the plaintiff, the foetus that was subjected to hystertomy on 17.7.1994 should be of the size of about 20 weeks.   But it was not  so. Hence, the suit is liable to be dismissed.

6. The lower Court had framed the following three issues and one additional issue and had proceeded with the trial of the suit.
(1)  Whether there was no negligence on the part of the defendants in performing tubectomy operation on the plaintiff?
(2) Whether the plaintiff is entitled for suit claim?
(3) To what other reliefs the parties are entitled to?
Additional Issue
1. Whether the defendants conducted the abortion, at all properly, before conducting tubectomy at Government Hospital, Karaikal on plaintiff?

7. In a full fledged trial, the lower Court had examined the plaintiff as P.W.1 and marked Exs.A1 to A7 on the side of the plaintiff and  examined D.W.1 to D.W.3 and marked Ex.B1 on the side of the defendant and had come to a conclusion of  decreeing the suit partly with proportionate cost. Aggrieved by the said judgment and decree, the defendants 2 and 3 have preferred the present appeal.

8. Heard Mr.R.Natarajan, the learned counsel for the appellants / defendants 2 and 3 and Mr.S.Sounthar, the learned counsel for first respondent/ plaintiff.  No appearance for second respondent/ 1st defendant.

9. On a careful perusal of the pleadings, evidence adduced by both sides before the lower Court, the judgment and decree passed by the lower Court, the grounds raised in the appeal memo and the arguments advanced by the learned counsel for both sides, this Court could see that the following questions are necessarily to be decided in this appeal:-
1.Whether the first defendant conducted the abortion of pregnancy promptly before the conduct of the tubectomy at Govt.Hospital, Karaikal on the plaintiff ?
2. Whether there was any negligence on the part of the defendants in performing the tubectomy operation on the plaintiff at Govt. Hospital, Karaikal ?
3. Whether the compensation awarded at Rs.1 lakh with subsequent interest at 12% per annum from the date of plaint till the date of payment is sustainable ?
4. Whether the judgment and decree passed by the lower Court are liable to be set aside and is the appeal allowable ?
5. To what relief the appellants are entitled for ?

10. The learned counsel for the appellants Mr.R.Nataraj, Additional Govt. Pleader (Puducherry) would submit in his argument that the plaintiff did not allege in the plaint that the first defendant did not perform M.T.P but it has been categorically averred by the plaintiff that the medical termination was erroneously done by the first defendant and therefore the left out her womb had developed into subsequent complications and resulted in another M.T.P at Govt.Hospital, Pondicherry and she had to undergo yet another tubectomy and therefore, the findings of the lower Court that the first defendant had not performed M.T.P at Govt.Hospital, Karaikal cannot be correct.

11. He would further submit in his argument that the case of the defendants 2 and 3 was  that re-tubectomy was done after M.T.P on fresh pregnancy and the same was also supported by the evidence. He would further submit in his argument that the evidence of DW3 coupled with the evidence of DW1 would go to show that M.T.P was already done and thereafter only tubectomy was done at Govt.Hospital, Pondicherry. He would further submit in his argument that the lower Court had relied upon Ex.A3 and had come to an  erroneous conclusion that the pregnancy was continued, but it has been categorically established by Ex.B1, which  the case sheets of the plaintiffs produced in Ex.B1, would dis-prove the same. He would also submit in his argument that no expert has been examined on the side of the plaintiff to show that the M.T.P done by the first defendant on the plaintiff was negligently carried out by the first defendant. He would further argue that there was a clear indication given by the Hon'ble Apex Court in the recent judgment reported in 2005(6) SCALE 770 SC in between State of Punjab Vs. Shiv Ram and others to the effect that if the woman having undergone the sterilization operation became pregnant and delivered a child and  the operating surgeon or employer cannot be held liable for compensation amount of unwanted pregnancy or unwanted child and the claim in tort can be sustained only if there was negligence on the part of the surgeon who  performed the surgery. He would further submit in the argument that the lower Court had erroneously shifted the burden on the defendants to dis-prove the stand of the plaintiff. He would also submit that the lower Court did not frame the issue regarding the medical negligence in the performance of tubectomy or was there any re-fusion of fallopian tubes subsequent to the said tubectomy or whether there was any negligence of the first defendant and such points should have been considered by the trial Court, but there were over looked and the lower Court had ventured into un-connected facts of the case and erred in deciding the same. He would also submit that the plaintiff did not prove any medical negligence on the part of the first defendant in doing the M.T.P on her at General Hospital, Karaikal and therefore, the judgment of Hon'ble Apex Court would be squarely applicable to the present case. He would further argue that the lower Court had draw the adverse inference for the non-production of the case records for the M.T.P and tubectomy operation done at Govt. Hospital, Karaikal, which is not correct when the subsequent case sheet produced in Ex.B1 would be sufficient to show that there was no defect in the  M.T.P and tubectomy done at Govt.Hospital, Karaikal. He would also submit that the reason stated by the plaintiff for not  taking further medical assistance at Govt.Hospital, Karaikal but took medical assistance at Govt.Hospital, Pondicherry for the second operation cannot be believed. He would again submit in his argument that the plaintiff had failed in her attempt to prove the case that the first defendant had committed medical negligence in doing the M.T.P on her and the consequent tubectomy operation at Govt.Hospital, Karaikal and therefore, she had to undergo another M.T.P and tubectomy at Govt.Hospital,Pondicherry and sustained mental agony. Therefore, he would request the Court to set aside the judgment and decree passed by the lower Court in awarding a sum of Rs.1,00,000/- towards compensation for the alleged medical negligence on the part of the first defendant and to dismiss the suit by allowing the appeal with costs.

12. The learned counsel for the first respondent/plaintiff  Mr.Sounthar would submit in his argument that the evidence of DW1 would be sufficient to show that there was clearly a medical negligence on the part of the first defendant in doing M.T.P on the plaintiff at Govt.Hospital,Karaikal. The evidence of DW3 would go to show that there was a foetus aged about 10 weeks found in the womb of plaintiff and therefore, she did hysterotomy and sterilization on the plaintiff, on the advise of the Unit Chief Doctor, Dr.Shankari Devi and the  said surgery was admittedly done on 18.07.1994.  If really M.T.P was done successfully by the first defendant at Govt.Hospital,Karaikal on 22.04.1994 and the subsequent tubectomy was also promptly done, re-fusion of the fallopian tubes happened in the gestation period and the plaintiff was also  having sexual life  and  conceived, consequently,  it could not be a 10 weeks aged  fetus in the womb of the plaintiff for doing the hysterotomy and sterilization at Government Hospital Pondicherry. He would further submit in his argument that the tubectomy said to have been performed at Govt.Hospital,Karaikal by one Dr.Uma Maheshwari, was said to have performed under the care of the first defendant and the defendants did not even examine the said Dr.Uma Maheshwari to prove that the tubectomy operation was perfectly done by her nor DW1 would speak to the effect that the tubectomy operation was promptly done by Dr.Uma Maheshwari in her presence. He would also submit that there was nothing spoken to the effect that  the surgery was performed by disconnecting the fallopian tubes and knots were made in the fallopian tubes or electric charring been done at the ends of the cut fallopian tubes, in the evidence and in the absence of such evidence it could be presumed that the subsequent conceiving or the continuing of the pregnancy at the womb of the plaintiff would draw a presumption that the first defendant and her assistant doctor Dr. Uma Maheshwari have not done the M.T.P and tubectomy surgery at Govt.Hospital, Karaikal, promptly but they have committed negligence and that they are the cause for  the second surgery of M.T.P and tubectomy for the plaintiff  within a span of three months. He would further submit in his argument that such surgeries caused due to the negligence of the first defendant and other defendants and the health of the plaintiff has been very much affected and her mental condition was also agonised considerably. He would further submit in his argument that the evidence of PW1 would go to show that she had continued pregnancy even after the performance of the first M.T.P and tubectomy done at Govt.Hospital, Karaikal and the documentary evidence in Ex.A3 would categorically show that the plaintiff was continuing the pregnancy and the M.T.P was necessitated  for the  removal the pregnancy and it would shift the burden on the defendants to show that there was negligence on their part in doing the 1st M.T.P and tubectomy surgeries at Govt.Hospital, Karaikal. He would again submit in his argument that the failure rate in the case of tubectomy even when a surgery was carried out 100% successful, would be only at 0.1 to 0.5% and that would be due to re-canalization of the fallopian tubes. He would further submit in his argument that there is no dispute that the judgment of Hon'ble Apex Court had laid down that there should be proof of medical negligence for claiming compensation against any doctor who did the sterilization operation. He would further submit in his argument that the subsequent performance of M.T.P and tubectomy would themselves speak about the medical negligence of the first defendant in doing the M.T.P and tubectomy along with her assistant doctor Dr.Uma Maheshwari. He would also submit that the said assistant Dr.Uma Maheshwari was not examined on the side of the defendants to prove that the first tubectomy was promptly done by her after the medical termination of pregnancy. He would also submit that the defendants did not produce the case records maintained in the name of the plaintiff at Govt.Hospital, Karaikal and those documents if produced would show that there was no medical termination of pregnancy promptly done on the plaintiff and no tubectomy was perfectly done on the plaintiff by the first defendant and her assistant doctor. Since those documents would disclose the medical negligence of the first defendant and her assistant, they did not choose to produce them into Court and there was no explanation offered for the non-production of those records.

13. He would therefore, submit in his argument that the medical negligence of the first defendant has been clearly proved and the defendants have not chosen to disprove the case of the plaintiff. He would also submit that the quantum of compensation was arrived by the lower Court at Rs.1,00,000/-  with subsequent interest are moderate and therefore, the case putforth by the appellants/defendants 2 and 3 cannot be sustained. He would also submit in his argument that the first defendant is figuring as second respondent in this appeal. She has neither filed a separate appeal nor have joined in this appeal along with the appellants or to file any cross appeal in support of the appellant against the plaintiff / first respondent. Therefore, the judgment and decree passed by the lower Court would be binding upon the first defendant / second respondent and when first defendant is liable to pay compensation as per the direction of the lower Court, the defendants 2 and 3 / appellants herein are also liable to pay the decree amount as ordered by the lower Court. Therefore, he would request the Court to dismiss the appeal and to confirm judgment and decree passed by the lower Court.

14. I have given anxious thoughts to the arguments advanced on either side. It is always better to apply the arguments for discussions  pointwise.
Point Nos.1 & 2:
The suit has been filed by the lower Court seeking for compensation of Rs.1,00,000/- with subsequent interest against all the three defendants by stating that the first defendant who was working as a Doctor in Govt.Hospital, Karaikal, had performed M.T.P on the plaintiff negligently and the subsequent tubectomy done in furtherance of M.T.P was also carried out without promptness but with negligence and therefore, the plaintiff had to undergo yet another M.T.P and the tubectomy at Govt.Hospital, Pondicherry within a period of 12 weeks from the earlier surgeries.

15. The plaintiff approached the Govt.Hospital, Karaikal for terminating the pregnancy since  she had conceived for the third time and she did not want any more child and accordingly, the said unwanted pregnancy was advised to be terminated and therefore, she was admitted in Govt.Hospital, Karaikal on 21.04.1994. The first defendant was in-charge of the said ward. The surgery for terminating the unwanted pregnancy was done and the tubectomy operation was also performed on the plaintiff on 22.04.1994 and she was discharged on 27.04.1994. The said plaintiff after her discharge at Govt.Hospital,Karaikal had again admitted at Govt.Hospital, Pondicherry on 15.07.1994 and she was forced to take treatment there till 28.07.1994. She had undergone M.T.P in the said hospital and re-tubectomy was also performed on her. According to the plaintiff, the said necessity for undergoing the second M.T.P and tubectomy surgery at General Hospital, Pondicherry was due to the negligent surgery carried out by the first defendant, while her pregnancy was terminated at Govt.Hospital, Karaikal and the consequent tubectomy was not promptly performed by her in the said hospital.

16. We have to see whether there was any medical negligence on the part of the first defendant in performing the first M.T.P at Govt.Hospital, Karaikal and consequently, the tubectomy in the same hospital which resulted for the second M.T.P and the re-tubectomy performed at Govt.Hospital, Pondicherry. At this Juncture, we have to bear-in-mind the dictum of judgment of the Hon'ble Apex Court reported in 2005 (6) SCALE 770 (SC) in between State of Punjab Vs. Shiv ram and Others. The relevant passage would run thus:-
"17. ... It is thus clear that there are several alternative methods of female sterilization operation which are recognised by medical science of today. Some of them are more popular because of being less complicated, requiring minimal body invasion and lessee confinement in the hospital. However, none is foolproof and no prevalent method of sterilization guarantees 100% success. The causes for failure can well attributable to the natural functioning of the human body and not necessarily attributable to any failure on the part of the surgeon. Authoritative Tex Books on Gynaecology and empirical researches which have been carried out recognize the failure rate of 0.3% to 7% depending on the technique chosen out of the several recognized and accepted ones."
"24. We are, therefore, clearly of the opinion that merely because a woman having undergone a sterilization operation became pregnant and delivered a child, the operating surgeon or his employer cannot be held liable for compensation on account of unwanted pregnancy or unwanted child.  The claim in tort can be sustained only if there was negligence on the part of the surgeon in performing the surgery."

17. On the foot of the aforesaid principle laid down by the Hon'ble Apex Court, we have to approach the present case. According to the plaintiff, the first defendant had committed medical negligent in doing the M.T.P as well as tubectomy surgery on herself at Govt.Hospital, Karaikal. For that she had adduced evidence examined as PW1 and had produced Exs.A1 to A3 on her side. The Exs.A1 to A3 would go a long way to show that the plaintiff underwent M.T.P and tubectomy at Govt.Hospital, Karaikal on 22.04.1994. She would speak in her evidence that she was admitted in Govt.Hospital, Karaikal on 21.04.1994. The first defendant who was the Head of the Department for Gynaecology  terminated the pregnancy and performed tubectomy conducted operation on her. She was discharged after 5 days and after 2 months, she found symptoms of pregnancy like vomiting and weakness and she went to first defendant for checkup and she prescribed certain  medicines referred  in Ex.A2 and she had told the plaintiff to come to her  clinic to undergo check up about the pregnancy symptoms. The first defendant  advised PW1 that no further treatment was necessary. PW 1 would further depose that she had lost confidence in the first defendant  and therefore, she approached the Govt.Hospital, Pondicherry for the treatment of the symptoms of pregnancy and she had taken treatment there and done and  second abortion was done there and the discharge slip was produced as Ex.A3. However, the treatment given by the first defendant, was admitted in her evidence when she was examined as DW1 but she would speak  that the plaintiff did not approach her after one month, even though she was advised to approach Govt.Hospital, Karaikal, for review her case D.W.1 would also speak that the tubectomy operation was done by her assistant Dr.Uma Maheshwari and there was a possibility of re-canalisation of fallopian tubes and thereby fresh conception would be possible and therefore, there is no negligence on her part in doing the M.T.P at Govt.Hospital, Karaikal.

18. Despite her examination was spread over two days, the case sheets in respect of the plaintiff's treatment  maintained at Govt.Hospital, Karaikal for the performance of M.T.P and tubectomy on and from 21.04.1994 to 27.04.1994 were not produced. The defendants did not explain about the reason for  non-production of the said case sheets maintained in the name of the plaintiff at Govt.Hospital, Karaikal. Similarly, the Doctor who had performed the first tubectomy surgery on the plaintiff at Govt.Hospital, Karaikal, namely Dr.Uma Maheshwari was not examined in support of the evidence of DW1. If she was examined, it could be evidenced that the tubectomy operation was done by her and it was not performed by the first defendant and the said surgery was very carefully performed by her without any negligence. It is not disputed that the first defendant was the Chief Doctor of the Department of Gynaecology at Govt.Hospital, Karaikal. According to her evidence the Superintendent has to allot the work to other doctors but  however, as the Chief Doctor who is  the  supervising authority over the other doctors while  doing surgery, she is also responsible for any negligence committed by the Assistant Doctors. However in this case, it has not been shown to Court that the first defendant did not conduct the tubectomy operation. It is the clear case of the plaintiff that the first defendant had done both M.T.P and tubectomy surgeries to her. In such circumstances, the non-production of the documents is very much handicapped for coming to the conclusion, as to whether the tubectomy surgery was done by Dr.Uma Maheshwari, as spoken by DW1 or by the first defendant by herself. It is the duty of the first defendant to show that her version is true by producing the case sheets of the plaintiff kept under the custody of Govt.Hospital, Karaikal. Non-production of the said documents would certainly affect the case of the defendants.

19. Therefore, this Court could accept the evidence adduced by the plaintiff that the said surgeries of M.T.P and tubectomy were carried out only by the first defendant at Govt.Hospital,Karaikal.  Moreover, it is categorically seen from Ex.A1 that she was discharged from Govt.Hospital,Karaikal on 27.04.1994 and thereafter she was again examined on 04.07.1994 for nausia and she was again directed to come to hospital on the forth coming Thursday. Ex.A2 prescription issued to the plaintiff would go to show that the first defendant had given her certain medication in the said Ex.A2 prescription.

20. According to the evidence of PW1, the Doctor stated that her uterus was bulged in size and therefore, she was asked to come for examination on another day.  According to the evidence of PW1, she felt rolling something in her abdomen and therefore, she lost confidence with the  first defendant and therefore, she approached the Govt.Hospital, Pondicherry on 15.07.1994. The discharge slip has been produced as Ex.A3. In the said discharge slip it has been categorically mentioned and disclosed that hysterotomy was done to her on 18.07.1994, for the pregnancy continued after the patient underwent M.T.P and sterilization done at Govt.Hospital, Karaikal and the foetus was aged 16 weeks and the said document was issued only at Govt.Hospital, Pondicherry, at the time of discharge of the plaintiff. However, the defendants have produced Ex.B1, the case sheets maintained in the name of the plaintiff at Govt.Hospital, Pondicherry.

21. According to the submission made by the learned Additional Government Pleader (Puducherry) for the appellant No.2, the findings in the examination of plaintiff would show that the pregnancy was a fresh one and she was advised to do re-tubectomy and therefore, the mentioning of continuance of pregnancy in Ex.A3 would be a mistake. According to Ex.B1, there was a finding that the fresh pregnancy had to be terminated and M.T.P was done on that basis only.

22. According to the plaintiff, she underwent M.T.P for the  second time and re-tubectomy had to be done at Govt.Hospital,Pondicherry for the mistake committed by the Doctor in not removing the foetus, during the first M.T.P at Govt.Hospital, Karaikal or the mistake committed during the tubectomy surgery done by the first defendant or at her supervision.

23. The lower Court had in detail gone into the age of the foetus as per the evidence of DW1 and DW3 and had arithmetically calculated the plaintiff's pregnancy, which was terminated at Govt.Hospital, Pondicherry and had come to a conclusion that the first M.T.P was not at all performed by the first defendant. When the first M.T.P was not done, there is no question of any performance of first tubectomy at Govt.Hospital, Karaikal. In view of the different opinions given in Exs.A3 and B1 about the continuance of pregnancy in Ex.A3 and the fresh pregnancy in Ex.B1, it has become necessary to go in to the case sheets of the plaintiff maintained at Govt. Hospital, Karaikal, but the said document was not produced by the defendants. The said documents are very much important and if they are produced, it  would disclose as to whether the M.T.P and tubectomy were done by the first defendant or  Dr.Uma Maheshwari in a prompt manner without any negligence on their part. The procedure for doing the tubectomy have not spoken by DW1 and how it was performed either by her by Dr.Uma Maheshwari. The important points which are necessary to be spoken by the said Doctor is very much essential to determine the medical negligence either committed by her or not. The fallopian tubes which are necessarily to have been  cut and knots be put with clips or being electrically charred on both  the ends of the tubes are essential for the purpose of avoiding the re-canalising of the fallopian tubes.

24. Moreover, the doctor who performed the tubectomy could speak that she had identified the fallopian tubes and she did not mistakenly  identified  any other fat resembling fallopian tubes  instead of the fallopian tubes and put the pieces of the fallopian tubes preserving in formalin solution in order to prove that the tubectomy was successfully done, were not at all placed before Court. When certain evidence is lacking without non-production of case sheets and as well as the non examination of alleged Dr.Uma Maheshwari are serious omissions. Therefore, there is no other options to infer adverse inference leading to presumption that the said documents were not produced for some purpose that if produced it would disclose the negligence on the part of the first defendant or his assistant Dr.Uma Maheshwari.

25. Indisputably, the plaintiff was done with second M.T.P and tubectomy at Govt.Hospital, Pondicherry and  that would show that she would have continued the earlier pregnancy or  through fresh pregnancy on the failure of tubectomy, since the said failure of tubectomy was not explained nor the  continuing of earlier pregnancy was not completely explained by production of those case sheets maintained in the name of plaintiff at Govt.Hospital, Karaikal. Therefore, it has become necessary for this Court to draw the adverse inference   based on documentary evidence which out to have been produced on the side of the defendants.

26. The case of the appellants/defendants that the plaintiff herself has not proved the initial burden cast upon  her cannot be accepted because even after the earlier tubectomy she is said to have 10 weeks of pregnancy as per clinical examination and 16 weeks pregnancy as per ultra-sound examination. The evidence of DW3, the Doctor who performed the second hysterotomy on the plaintiff would not be helpful to show that the performance of earlier M.T.P and tubectomy  was done with all care and caution.

27. In the aforesaid circumstances, there is no error on the part of the lower Court in drawing adverse inference against the defendants.

28. The judgment of this Court cited by the learned counsel for the plaintiff reported in 2007 (1) CTC 496 in between Dr.Alice George v.Lakshmi would be very much applicable to the present case. The relevant passage would be as follows:-
"9. ... a duty was cast upon the defendants to prove that the tubectomy family planning operation by Pomeroys method, was done carefully. But, the appellants/defendants have thoroughly failed to prove the same."
"... Apart from that, the lower Courts have rightly followed the judgment of the Apex Court reported in State of Haryana v.Santra, 200 (3) MLJ 98, which speaks about the Doctor entering into a medical profession and a duty to act with reasonable degree of care and skill. This Court is unable to notice any question of law, much less substantial question of law to be formulated by this Court."
The said principle laid down by this Court and the judgment of the Hon'ble Apex Court referred therein would be applicable to the present circumstances of this case, where no documents have been produced on the side of the defendant's in respect of the first M.T.P and first tubectomy which were done at Govt.Hospital, Karaikal. Therefore, the negligence substantiated through the evidence of  PW1 stand unproved.

29. Moreover, the defendants 2 and 3 have preferred the appeal against the judgment and decree passed against them. However, the first defendant has not elected to prefer a separate appeal or any cross appeal in this appeal against the findings of the lower Court. The said findings of the lower Court against the first defendant is binding upon the first defendant.

30. For the foregoing discussion I am of the view that the plaintiff has proved the negligence on the part of the first defendant in doing M.T.P and tubectomy in the Govt.Hospital, Karaikal either by her or through Dr. Uma Maheshwari on the plaintiff. As per the dictum of the judgment of Hon'ble Apex Court reported in 2005 (6) SCALE 770 the same was not disproved by the defendant, by adducing the documentary evidence in connection with the treatment given to the plaintiff at Govt.Hospital, Karaikal. Therefore, the aforesaid points are decided in favour of the plaintiff.

31. Point No.3:
As regards the compensation payable to the plaintiff for the mental agony and sufferings she had, for  the second M.T.P and re-tubectomy done to her at Govt.Hospital, Pondicherry, the plaintiff prayed for a sum of Rs.2,00,000/- with subsequent interest thereon. The lower Court had considered the damages caused to the plaintiff due to the negligence of the first defendant and had arrived at Rs.1,00,000/- towards compensation. The plaintiff did not filed any separate appeal nor cross appeal for enhancing the  compensation. Similarly, the defendants have not raised any points for reducing the compensation from Rs.1,00,000/- to a lesser amount. The main objection raised by the defendants 2 and 3 would be that there was no negligence on the part of the first defendant and therefore, they are not allowable. The said point has been decided against the defendant and therefore, the compensation amount fixed by the lower Court at Rs.1,00,000/- with interest at 12% per annum from the date of plaint till the date of payment is quite justifiable. Accordingly, the findings reached by the lower Court on the quantum of compensation is upheld and the point is decided accordingly.

32. Point No.4:
In view of my findings reached in the previous points 1 to 3 that the findings reached by the lower Court are un-assailable, the judgment and decree passed by the lower Court are not liable to be set aside but are confirmed. Consequently, the appeal filed by the defendants 2 and 3 are not allowable.

33. Point No.5:
From my earlier discussions, the judgment and decree passed by the lower Court are confirmed and the appeal preferred by the defendants 2 and 3 is dismissed with costs.



In the result, the appeal is dismissed with costs.
 
10.06.2010 Index   : Yes/No
Internet: Yes/No

ssn





















V.PERIYA KARUPPIAH, J.,
ssn








To
Additional District Judge,
Pondicherry at Karaikal.





Pre-Delivery Judgment in
A.S.No.97 of 1999


















10.06.2010
     

Contempt Petition under Sections 10 and 12 of the Contempt of Courts Ac

In the High Court of Judicature at Madras

Date :  20..03..2008


Coram :

The Hon'ble Mr. Justice D. MURUGESAN
and
The Hon'ble Mr. Justice V. PERIYAKARUPPIAH


Contempt Petition No: 194 of 2008


Sri Maruthamalaiyan Teacher
  Training Institute,
No: 3/2, Venkatesh Nagar,
Hosur,
Krishnagiri District. ...  Petitioner

-vs-

Mr. Perumalsamy
Director D.T.E.R.T.
O/o. Director of Public Instruction,
College Road,
Chennai  600 006. ...  Respondent

..  ..  ..

Contempt Petition under Sections 10 and 12 of the Contempt of Courts Act to punish the respondents for having committed contempt of Court for disobeying the order dated 19.02.2008 made in W.P. No: 3895 of 2008.
For petitioner              :  M/s. E. Vijay Anand
..  ..  ..


O R D E R
(Order of the Court was
                 made by D. Murugesan, J.)

  This petitioner Sri Maruthamalaiyan Teacher Training Institute, Hosur,  has approached this Court with this contempt petition complaining that the order of this Court dated 19.02.2008 made in W.P. No: 3895 of 2008 has been violated.  The said order reads as under :

" This case has been listed at the instance of the petitioner.  It is stated that though there are no adverse order against the petitioner, but, inspite of the observation made on 16th February 2008, the respondents have not allowed the students of the petitioner's institute to appear for the Teachers Training Examination, started from 18th February 2008.
2.  As we find that the writ petition has already been admitted for hearing and in other similar cases general observation has been made that in case that the petitioner succeeds the students may be allowed to appear in a special examination no separate order is required to be passed in this case."

2.  Mr. E. Vijay Anand, learned counsel for the petitioner had contended that contrary to the undertaking and even when the writ

petition is pending, the respondent is going to the press and issues statement that the stidents of the petitioner institute will not be permitted to take up the special examination.  Thus, the respondent has violated the orders passed by this Court.

3.  In our opinion, all that this Court had observed is that in case the petitioner succeeds, the students may be allowed to appear in a special examination and other than that observation, the Division Bench did not pass any order.  By any stretch of imagination, the observation made by the Division Bench cannot be construed to be one restraining the respondent from issuing any press statement.  Even otherwise, the issue of statement that the students will not be permitted to write a special examination will not amount to disobedience  of the orders of this Court as admittedly, the writ petition is pending.  Hence, this contempt petition is dismissed.



( D.M.J. ) ( V.P.K.J. )
gp       20..03..2008



D. Murugesan, J.
and
     V. Periyakaruppiah, J.


     gp










      Cont. Petition No: 194
          of 2008














20..03..2008

guilty under sections 302 r/w 34 IPC and 324 IPC (4 counts)

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED : 27.11.2009

CORAM

THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM
AND
THE HONOURABLE MR.JUSTICE V. PERIYA KARUPPIAH

CRIMINAL APPEAL No.512 of 2009


1. Manthoon
2. Paramananth
3. Kal @ Kadi @ Aravindh
4. Amarjith
5. Solindar  ..Appellants


Vs.

State by:
The Inspector of Police,
H.5, New
Washermenpet Police Station,
Chennai          ..Respondent

This criminal appeal is preferred under Section 374(2) Cr.P.C against the judgment of the learned Additional District and Sessions Judge, Vth Fast Track Court, Chennai, made in S.C.No.427/2008 dated 6.8.2009.
For Appellants    :  Mr.S.Jayakumar, Senior counsel for
Mr.T.S.Sasikumar for A1 & A2

Mr.N.Doraisami for A3 to A5

For Respondent :  Mr.Babu Muthu Meeran, Addl.P.P

J U D G M E N T

(The judgment of the Court was made by M.CHOCKALINGAM, J.)

Challenge is made to the judgement of the Additional District and Sessions Division, Fast Track Court-V, Chennai, made in S.C.No.427 of 2008 whereby the appellants five in number, stood charged, tried and found guilty under sections 302 r/w 34 IPC and 324 IPC (4 counts) and awarded life imprisonment each  and one year rigorous imprisonment each respectively along with fine and default sentences. The sentences are ordered to run concurrently.

2. The short facts necessary for the disposal of this appeal can be stated as follows:
(a) P.W.1 is the complainant. P.Ws. 2 and 3 came from Andhra Pradesh to eke their livelihood. They along with others were staying in Venkateshwara Kalyanamandapam, New Washermenpet, Chennai.. They were brought for the work of loading and unloading of goods in Chennai Port.  About 28 persons were staying there. Out of 28 persons, 8 persons were in one group, wherein P.W.1 was in that group and 20 others were in another group. On the date of occurrence,  that was on 20.7.2008 at about 9.00 to 10.00 p.m., when A1 was lying  in the first floor and P.W.1 was sitting by his side, the deceased Srinivasan came there and slapped A1. All the accused questioned about the same. The deceased felt sorry for the same but the accused persons  were not satisfied. They took the wooden clubs and attacked him. When P.Ws.1 to 3  intervened, they were also assaulted by the accused. All the accused dragged the deceased to the nearby water tank and attacked him indiscriminately. The same was informed to the Supervisor of the Kalyanamandapam. The Supervisor along with others took the deceased to the Apollo Hospital. Since they could not meet the expenses, they took him to the Government Hospital, where P.W.8 doctor was on duty. The deceased was admitted at about 11.55 p.m.
(b) P.W.1 after leaving him in the hospital, proceeded to the  respondent Police station and he gave Ex.P1 complaint. Since he gave an oral complaint in telugu, he took the assistance of P.W.6  who knew telugu. P.W.6  translated the same. The oral complaint was actually reduced into writing which was marked as Ex.P1. On the strength of Ex.P1 complaint, a case came to be registered by P.W.16 Sub Inspector of Police of the  Respondent  Police Station in Crime No.299/2008 under sections 324, 307 and 506(2) IPC The express F.I.R. Ex.P25 was despatched to Court. The same reached the Magistrate at 11.00 a.m. on 21.7.2008.
(c) Following the same P.W.17, Inspector of Police on receipt of the copy of the F.I.R., took up investigation, went to the spot, made an inspection in the presence of witnesses and panchayatdars and prepared the observation mahazar, Ex.P26 and drew a rough sketch, Ex.P.27. He recovered the material objects M.Os.4 and 5 bricks and granite stones respectively under a cover of mahazar.
     (d) Pending investigation, a message was received from the Hospital that Srinivasan died at about 6.40 a.m. Then, the case was altered to section 302 IPC and the amended F.I.R. Ex.P29 was despatched to Court.  The inquest was conducted by the Investigating Officer in the presence of witnesses and panchayatdars  and prepared Ex.P.30 inquest report. The dead body was subjected to post mortem. P.W.13 doctor conducted autopsy on the dead body of the deceased and gave his opinion in Ex.P23 post mortem certificate wherein he has opinion that the deceased would appeared to have died out of multiple injuries sustained by him. Pending investigation, the accused were arrested and they gave confessional statement  pursuant to which the material objects,  weapon of crime-wooden clubs were recovered. They were sent for judicial remand.
         (e) P.Ws. 2 and 3 were examined by P.W.10 doctor and he issued accident register copy Exs.P 7 and 8 respectively which were marked. On completion of the investigation, the investigating officer filed a final report.
(f) The case was committed to the Court of Sessions. Necessary charges were framed. In order to substantiate the charges, the prosecution examined 18 witnesses and relied on 41 exhibits and  7 material objects. On completion of the evidence on the side of the prosecution, the accused were questioned under section 313 Cr.P.C. and they denied them as false. No defence witnesses were examined on the side of the defence. The trial Court heard the arguments advanced on either side and took the view that the prosecution has proved the case beyond reasonable and rendered the judgement of conviction and sentence as referred to above. Hence, this appeal at the instance of the appellants.

3. Advancing the arguments on behalf of the appellants, the learned counsel would submit that according to the prosecution, the occurrence has taken place at 10.00 p.m. on 20.7.2008 in which  P.Ws. 1 to 3 were injured apart from the deceased. The deceased was originally taken to Apollo Hospital by the Supervisor of the Kalyana Mandapam and thereafter, to the Government Hospital where he succumbed to injury at about 6.45 a.m. on 21.7.2008. Though the prosecution examined P.Ws. 1 to 3 as injured witnesses, no medical evidence was produced in so far as P.W.1 was concerned. The claims of the prosecution was that P.W.1 was by name Ramakrishnan and it was he who went to the Police Station and gave Ex.P1 report. P.W.16, Sub-Inspector of Police would also claim that it was P.W.1 who came there and gave the report in telugu and with the assistance of P.W.6, it was translated to Tamil. But at the time of cross examination P.W.1 has categorically admitted that he was not Ramakrishnan at all. Hence, it would be quite clear that Ex.P.1 could not have come into existence at the instance of P.W.1.  and the same  is  doubtful.  This would also indicate that P.W.1 could not have been in the place of occurrence at all.

4. Added further learned counsel, the earliest document which has come into existence is the accident register copy of the deceased which was marked as Ex.P4. P.W.8 is the doctor who categorically examined the deceased.  A perusal of Ex.P4 would clearly indicate that the deceased died due to falling from the height of 15 feet. One injury was noticed and it was contusion  over occipital region. The prosecution had no explanation to offer to the contents found in the document, Ex.P4. Thus, it would clearly indicate that he did not sustain any injury at the instance of anybody else but due to falling from the higher place. Further, it is further seen that though the prosecution claimed  that the case was registered by P.W.16 Sub Inspector of Police  at about 2.00 a.m., it has reached the Metropolitan Magistrate  at 11.00 a.m. Thus, there was a delay of 9 hours. The prosecution had no explanation to offer for this delay. The inordinate delay remains unexplained.

5. Added further learned counsel, P.Ws.2 and 3 were examined by the doctor at about 12.55 p.m. on 21.7.2008 Their statements were recorded by P.w.10 doctor in Ex.P7 and P8 accident register respectively in which they have categorically stated that they  were attacked by 5 unknown person. But the F.I.R.    at   the  earlier at 2.00 a.m. in which the names of the assailants, 5 in number, were clearly mentioned. Thus, it would go to show that the police was unable to fix  the accused till P.Ws.2 and 3 were actually examined by  P.W.10 doctor whose statement was recorded in Exs.P7 and P.8.

6. The learned counsel would further submit that it is pertinent to point out that the investigator has claimed that the eye witnesses were examined  between 2.00 to 6.00 a.m. under section 161 Cr.P.C. but this statement has reached the Court on the next day that was on 22.7.2008. Further, though the investigator has claimed that the material objects were recovered following the confessional statement recorded from the accused, P.Ws.1  to 3  have  stated that the wooden clubs were found available in the place of occurrence and they were recovered by the police immediately. All would go to show that the recovery and the confessional statement cannot but be false. The prosecution in all the records have mentioned the assailants as  unknown persons but in the earliest document, F.I.R.,  the names of the accused were mentioned which would go to show that the prosecution has miserably failed to prove its case beyond reasonable doubt. The trial court has taken an erroneous view and convicted the accused. The prosecution has not brought home the guilt of the accused/appellants. Hence, the accused/appellants are entitled for acquittal.

7. The Court heard the learned Additional Public Prosecutor on the above contentions and paid its anxious consideration on the submissions made.

8. It is not in controversy that one Srinivsasn was taken to  Apollo Hospital and thereafter to the Government Hospital where he was admitted by P.W.8 doctor and despite treatment given to him during  the night hours on 20.7.2008, he died on  next day morning that was on 21.7.2008. On the death of Srinivasan, the case which was registered under section 307 IPC was altered to section 302 IPC. P.W.17 investigator, after conducting inquest  on the dead body of the deceased prepared the inquest report Ex.P.30. and made a requisition for conduct of post mortem. P.W.13 doctor conducted post mortem and gave his opinion as witness before the Court and also through the contents of the post mortem certificate that the deceased died of multiple injuries sustained by him. Thus, it would be quite clear that Srinivasan met unnatural death due to the incident that had taken place on 20.7.2008 at 10.00 p.m and the prosecution was successful enough to prove the same.

9. Insofar as the charges levelled against the appellants are concerned, on scrutiny of the material available, the Court is afraid whether it could sustain the judgment of conviction rendered by the trial Court. The prosecution marched three witnesses P.Ws. 1 to 3 as eye witnesses and they are not only eye witnesses but as injured witnesses. Insofar as P.W.1 was concerned, no medical opinion was canvassed or  documentary evidence was placed before the Court. The consistent claim of the prosecution was that P.W.1 by name Ramakrishnan  gave Ex.P1 complaint to P.W.16 Sub Inspector of Police, on the strength of which, a case came to be registered by the respondent Police but at the time of cross examination, P.W.1 has categorically stated that he was not Ramakrishnan. This part of the evidence of P.W.1 coupled with non-production of the medical evidence as to the alleged injuries sustained by him would cast  a doubt whether he could have been at the place of occurrence  or he could have been injured at the time of incident as claimed by the prosecution.  It is highly doubtful whether Ex.P1 itself  would have come into existence  on the basis of the report  given by P.W.1 as putforth by the prosecution.

10. Further, the case came to be registered at about 2.00 a.m. in which the names of 5 assailants are mentioned therein. But  the investigator would  claim that he examined all the witnesses between 2 and 6 a.m. and  their statements were recorded under section 161 Cr.P.C  The statements recorded  was also to the effect that the names of all the five assailants were noted therein. It is a matter of surprise to note that P.Ws. 2 and 3 who were medically examined by P.W.8 doctor at 12.55 p.m. on 21.7.2008 have mentioned to the doctor that they were attacked by 5 unknown person.  Therefore, a reasonable doubt  would automatically arise whether P.Ws.2 and 3 were examined by the investigator as claimed by him between 2 a.m. and 6.00 a.m on 21.7.2008. There is no reason for them to inform to the doctor that they were attacked by unknown person. It is quite clear that till the time they were examined by the medical person, the assailants were not known.
11. Insofar as P.W.1 is concerned, it is doubtful whether he could have been in the place of occurrence. P.Ws. 2 and 3 had stated to P.W.8 doctor that all the five persons who attacked them were unknown, hence, it is doubtful how the names of five persons came in Ex.P1 complaint. As could be seen from the available materials the deceased died at  6.40 a.m. on 21.7.2008 and the case which was originally registered under section 307 IPC at 2.00 a.m. has reached the Metropolitan Magistrate at 11.00 a.m. There was a delay of 9 hours which is  inordinate  and one would naturally expect the prosecution to  explain the same but the prosecution had no explanation to offer. The non-explanation of the inordinate delay of 9 hours coupled with the circumstances cited supra,  would clearly indicate that the prosecution story is doubtful.

12. In the instant case,  it was claimed  by the prosecution that the accused persons were staying in the same place and they knew each other already. It is further to be pointed out that the investigator would claim that the wooden clubs were recovered pursuant to the confessional statement recorded from the accused but the prosecution witnesses would depose that the wooden clubs were available at the place of occurrence. Therefore, the claim of the investigator that they were recovered pursuant to the confession cannot but be false. All would go to show that the prosecution has not successfully proved the case. The prosecution has not brought home the guilt of the accused but the trial court has taken an erroneous view  and found the accused guilty. This Court is of the considered opinion that the accused are entitled for acquittal and the judgment of the trial Court has got to be made undone by upsetting the same.

13. Accordingly, the judgment of conviction and sentence passed by the trial Court is set aside. The appellants are acquitted of the charges levelled against them. They are directed to set at liberty forthwith unless their presence are required in connection with any other case. Fine amount, if any paid by the appellants, shall be refunded to them.

(M.C.J.)      (V.P.K.J.)     27.11.2009
Index : Yes/No
Internet : Yes/No
vsi









To


1. The Additional District and Sessions Judge,
    Vth Fast Track Court, Chennai

2. The Inspector of Police,
    H.5, New  Washermenpet Police Station,
    Chennai

3. The Public Prosecutor,
    High Court, Chennai.

































M.CHOCKALINGAM.,J.
AND
V. PERIYA KARUPPIAH.,J.

Vsi











CRL. APPEAL No.512 of 2009







27.11.2009