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2000 DIGILAW 188 (HP)

REETA BARWAL v. STATE OF H. P.

2000-07-21

R.L.KHURANA

body2000
JUDGMENT R.L. Khurana, J.—The revision petition has been directed against the order dated 29.2.2000 passed in Civil Suit No. 126/1 of 1997 by the learned Sub Judge 1st Class, Nahan, dismissing the application of the petitioner, hereinafter referred to as defendant No. 2, made under Section 151, Code of Civil Procedure, for permitting her to lead her evidence after the evidence of defendant No. 3 (respondent No. 2 before this court). 2. Briefly stated, facts of the case leading to the present petition are these. One Smt. Sunita Devi, on 25.1.1994, was admitted in the Civil Hospital, Nahan, in the Gynecology ward of which defendant No. 2 was the incharge and defendant No. 3 was a junior doctor. The said Smt. Sunita Devi developed labour pains at about 9 p.m. on 5.2.1994 and she delivered a child at about 10 p.m. However, at that time no medical expert was present in the ward. The delivery was attended upon by the staff nurses. Some complications developed during the delivery and due to non-presence of and non- attending by defendants No. 2 and 3, Smt. Sunita Devi died. The respondents No. 4 to 8, who are the husband, daughter and sons of the deceased, hereinafter referred to as the plaintiffs, filed a suit for recovery of damages to the tune of Rs. 2,00,000/- for the death of Smt. Sunita Devi on the allegations that such death had resulted due to the acts of omission of defendant No. 2 inasmuch as she failed to attend the deceased inspite of repeated calls having been sent to her. 3. The suit was initially filed by the plaintiffs only against the State of H.P. (defendant No. 1), the petitioner (defendant No. 2) and the Chief Medical Officer, Civil Hospital, Nahan (defendant No. 4). 4. The suit was being resisted by the said three defendants, who denied any negligence and/or acts of omission leading to the death of Smt. Sunita Devi. An objection was also taken that the suit was bad for non-joinder of necessary party. 5. On the pleadings of the parties, issues were framed by the learned trial court on 26.4.1999. 6. On 13.8.1999, when the case was fixed for evidence of the plaintiffs, an application came to be made by them under Order 1, Rule 10, Code of Civil Procedure, for impleading the present defendant No. 3 Dr. 5. On the pleadings of the parties, issues were framed by the learned trial court on 26.4.1999. 6. On 13.8.1999, when the case was fixed for evidence of the plaintiffs, an application came to be made by them under Order 1, Rule 10, Code of Civil Procedure, for impleading the present defendant No. 3 Dr. Archana Gupta (respondent No. 2 before this court) as a defendant to the suit. Such application was allowed by the learned trial Court on the same day, that is, 13.8.1999 since the same was not opposed by the defendants. Amended plaint was filed wherein respondent No. 2 before this court was impleaded as defendant No. 3. Written statement by such defendant No. 3 was filed on 15.9.1999. In her written statement, defendant No. 3 took the stand favourable to the plaintiff. In para 5 of her written statement she specifically averred : "That in reply to para No. 7 of the plaint, it is respectfully submitted that late Smt. Sunita Devi gave birth to a child and she was attended by the replying defendnat as a first called doctor on duty. It is further respectfully submitted that the late Smt. Sunita Devi was under the treatment of respondent/defendant No. 2. The replying respondent/defendant sent many calls through the attendants to the respondent/ defendant No. 2 to come to the labour room and examine the patient and give her treatment as an Expert of the gynecology. But she directed the replying defendant to give certain medicines to the patient, but never visited even once the labour room to see the condition of late Smt. Sunita and give her specialised treatment” 7. Again in para 6 of her written statement she has averred: ".....It is correct that the defendant/respondent No. 2 was apprised through telephone about the condition of the patient and also hospital ambulance was sent to bring her but she never came to the Labour room to examine the condition of the patient. She passed the instructions to the replying defendant to arrange blood start I.V. fluid etc. The replying respondent, in accordance with the instructions made all arrangements but despite the instructions by respondent/ defendant No. 2 she never visited the labour room. She was fully apprised by the replying defendant/respondent that all arrangements had/have been made according to the instructions of defendant No. 2....." 8. The replying respondent, in accordance with the instructions made all arrangements but despite the instructions by respondent/ defendant No. 2 she never visited the labour room. She was fully apprised by the replying defendant/respondent that all arrangements had/have been made according to the instructions of defendant No. 2....." 8. Be it stated that though defendant No. 3 came to be impleaded as party to the suit on the application of the plaintiffs, no allegations as to negligence or acts of omissions were made against her. As a result, no fresh issue was framed nor the issues already framed were amended and/or reframed. 9. The plaintiffs concluded their evidence in the affirmative on 29.12.1999. Even during the course of cross-examination of witnesses of the plaintiffs, the stand of defendant No. 3 has been supportive to the case of the plaintiffs by throwing the entire blame on the defendant No. 2. 10. On 29.2.2000, when the case was fixed for evidence of defendants 1, 2 and 4, an application was made by defendant No. 2 under Section 151, Code of Civil Procedure, praying that she may be permitted to lead her evidence after the evidence of defendant No. 3 vide impugned order the application was dismissed and request of the defendant No. 2 was declined by the learned trial court. 11. Order 18, Code of Civil Procedure, deals with "Hearing of the Suit and Examination of Witnesses". Rule 1 of the said order provides:— "The plaintiff has the right to begin unless the defendant admits the facts alleged by the plaintiff and contends that either in point of law or on some additional facts alleged by the defendant the plaintiff is not entitled to any part of the relief which he seeks, in which case the defendant has the right to begin." Sub-rule (2) of Rule 2 of Order 18, then provides:— "The other party shall then state his case and produce his evidence (if any) and may then address the court generally on the whole case." 12. So far as the defendants inter se are concerned, the question as to which of the defendant(s) should begin, has not been dealt with under Order 18, Code of Civil Procedure. 13. Such a question came up for consideration before a learned single Judge of the Gujarat High Court in Shah Hiralal Himatlal and others v. M.G. Pathak and others (AIR 1964 Gujarat 26). 13. Such a question came up for consideration before a learned single Judge of the Gujarat High Court in Shah Hiralal Himatlal and others v. M.G. Pathak and others (AIR 1964 Gujarat 26). It was held: "So far as the defendants go, the question which of the defendants should begin has not been dealt with in Order 18, C.P. Code. But on general principle, if any, of the defendants supports the plaintiff in whole or in part, then he should address the Court and lead his evidence first before the other defendants who do not support wholly or in part the plaintiffs case. The order in which defendants lead evidence becomes important only when some of them support the case of the plaintiffs in whole or in part while the others do not. If all the defendants completely oppose the plaintiffs case, then the question of order of leading evidence amongst the defendants is immaterial. It is only when the defendants are divided into two groups, one group consisting of the defendants supporting the plaintiffs case in part and the other group consisting of defendants, who do not support the plaintiffs case in any part that the question of order of leading evidence becomes important. In such cases among defendants the order of leading evidence should be as follows: (1) Those defendants who fully support the case of the plaintiff. (2) Those defendants who partly support the case of the plaintiff. (3) Those defendants who do not support the case of the plaintiff in any part." 14. The above ratio was followed by the Orissa High Court in Jhumpa Bewa and others v. Sahadev Rout and others (AIR 1987 Orissa 209). 15. I am in respectful agreement with the above view and hold that the defendant(s) who wholly or in part support the case of the plaintiffs should be called upon to lead evidence before those defendants(s) who do not support the case of the plaintiffs are called upon to lead evidence. 16. For the foregoing reasons, the impugned order of the learned trial court cannot be sustained and the same is liable to be set aside. 17. Resultantly, the present petition is allowed. The impugned order of the learned trial court is set aside. 16. For the foregoing reasons, the impugned order of the learned trial court cannot be sustained and the same is liable to be set aside. 17. Resultantly, the present petition is allowed. The impugned order of the learned trial court is set aside. The learned trial court shall call upon the defendant No. 3 to lead her evidence first before proceeding to call upon defendants 1, 2 and 4 to lead their evidence. 18. Parties, through their counsel, are directed to appear before the learned trial court on 7.8.2000. The records be returned forthwith so as to reach well before the date fixed. CM.P. 56/2000 : 19. Interim order dated 7.3.2000 is vacated and the application shall stand dismissed in view of the order passed in the revision petition. Petition allowed.