Judgment : 1. Heard Mr. S. Baskaran, learned Counsel for the Appellant; Mr. A.S. Thambuswamy, learned counsel for the First Respondent; and Mr. V. Ravi, learned Special Government Pleader (AS) for the Second Respondent and also for the proposed Third Respondent. 2. This appeal arises out of the judgment and decree made in O.S. No. 230 of 1998 and dated 12.08.2005 on the file of the Additional District Judge, Fast Track Court No. II, Kancheepuram. The Appellant, who is a minor, was represented by his mother and natural guardian and he has filed the Original Suit in O.S. No. 230 of 1998 claiming damages at Rs. 5,00,000/- towards the damage caused to the minor Appellant, who had lost his right forearm in the course of medical treatment that he underwent at the Government Children Hospital at Egmore. As the Suit itself was filed as an indigent person, the Appellant was permitted to prosecute this Appeal as an indigent person. Initially, the Suit was laid against only First Respondent and subsequently, the Second Respondent was impleaded before the Trial Court in I.A. No. 816 of 1999 by order dated 18.07.2000. 3. The case of the Appellant was that the parents of the minor Appellant got married in the year 1987 and that after four years, viz., on 20.10.1991, the minor Appellant was born to them at the Government Primary Health Centre at Kancheepuram. At the time of birth, the child was perfectly healthy and he was a normal baby. After three days of birth, the baby got some physical inconvenience and began to cry at all odd hours. The parents of the Appellant took him to the First Respondent, who is a pediatrician practicing at Kancheepuram, for treatment. The First Respondent administered I.V. Fluid through the right forearm along with some medicines. The First Respondent had asked the parents to take him away, assuring that the Appellant will be cured in the normal course. However, the child started crying inconsolably. The father of the child found blood-clot in the place where I.V. Fluid was administered and once again, the child was taken back to the First Respondent around 8.00 p.m. After examining the Appellant, the First Respondent put a bandage on the right forearm in the area, where there was blood-clot. However, the child started crying inconsolably. The father of the child found blood-clot in the place where I.V. Fluid was administered and once again, the child was taken back to the First Respondent around 8.00 p.m. After examining the Appellant, the First Respondent put a bandage on the right forearm in the area, where there was blood-clot. The First Respondent also requested to take back the baby, but his crying did not stop and on 24.10.1991, he was once again taken to the First Respondent, who advised the child to be admitted in the Government Children Hospital, at Egmore. The Doctors, on admission in the Government Children Hospital, Egmore, found that the right forearm of the Appellant was completely infected and decayed and the Appellant was admitted as an inpatient and because of the decay, the right forearm was amputated to prevent spreading of further infection. Therefore, it was alleged that the First Respondent being the guilty medical practitioner, he is duty bound to compensate by way of damages to the loss caused to the child and the compensation was quantified at Rs. 5,00,000/- in the Suit. 4. On notice to the Suit, the First Respondent filed a Written Statement stating that the Suit itself was not maintainable and it was contended that he never ran any nursing home at Kancheepuram and the child was treated at Government Head Quarters Hospital, Kancheepuram, where I.V. Fluid was administered. The child was admitted on 20.10.1991 and discharged on 23.10.1991. The discharge was against the medical advise. The First Respondent was not guilty of any negligence and that the Suit itself is time barred. The Appellant also moved the Consumer Redressal Forum, which concluded the issue was barred by limitation and a C.R.P. No. 907 of 2000 was filed against the same, in which, this Court directed that question of limitation has to be gone into at the time of trial. The Suit was nothing, but, only a harassment. 5. After the impleadment, the Second Respondent filed a Written Statement stating that the Appellant was admitted in the Government Children Hospital, Egmore, on 24.10.1991, as inpatient. The Appellant was referred by one Dr. Ramesh of Poonamallee High Road with the medical history. It was found that the I.V. Fluid was administered to the child for three days continuously and then the child was referred to surgical born ward for further treatment. The Appellant was referred by one Dr. Ramesh of Poonamallee High Road with the medical history. It was found that the I.V. Fluid was administered to the child for three days continuously and then the child was referred to surgical born ward for further treatment. In spite of the treatment, the right forearm had to be amputated and the surgery was done in the presence of the parents of the Appellant and the Appellant was also discharged on 18.11.1991. The Second Respondent had acted with due care and caution and there was no negligence on his part. 6. Upon those pleadings, the Trial Court framed five issues. Before the Trial Court, on behalf of the Appellant, three witnesses were examined as PWs 1 to 3, while the mother of the Appellant was examined as PW1 and the doctors were examined as PWs 2 and 3. On the side of the Appellant, eight documents were filed and marked as Exs. A1 to 8. On the side of the Defendants/Respondents, the First Respondent got examined himself as DW1 and two other witnesses were examined as DWs 2 and 3. The Trial Court in respect of Issue Nos. 1 and 2, whether the First Respondent treated the Appellant and whether the Appellant is entitled for compensation, though found that the First Respondent has treated the Appellant, but, it came to the conclusion that the damage claimed was for a wrong diagnosis on the part of the First Respondent has not been proved and the Trial Court also found that the First Respondent was falsely implicated by the Appellant. 7. With regard to Issue No. 4, viz., whether the Second Respondent was a necessary and proper party to the Suit, the Trial Court found that PW1, who is the mother of the Appellant, in her evidence had admitted that it is only the Second Respondent, who has saved the life of the baby and no relief wad claimed against the Second Respondent and therefore, the impleadment of the Second Respondent was unnecessary and hence, Issue No. 4 went against the Appellant. With regard to Issue No. 3, whether the suit is barred by limitation in terms of Article 72 of the Indian Limitation Act, 1963, it was found that the Suit was not filed within a period of one year from the date of wrong diagnosis, but, since the parties had gone to other forum and as the alleged act of the First Respondent was not a statutory duty and therefore, Article 72 of the Indian Limitation Act, 1963, was not attracted and therefore, the Suit was not barred by limitation. 8. With regard to the fifth issue, in Paragraph 15 of the award, the Trial Court has stated as follows: In the light of the findings in Issue No. 1, 2 and 4 the Suit fails. The unfortunate victim boy has lost his claim only for having proceeded against the wrong person namely the 1st Defendant leaving the actual persons who were responsible for the irreparable damage caused to him. However, Law cannot extend its helping hands to a person by doing injustice to another man who is not responsible for the damage. Therefore, the Suit fails and the same is hereby dismissed. Point No. 5 is answered accordingly.” Thus, the Trial Court found that since the Issues 1, 2 and 4 were held against the Appellant, he is not entitled for any compensation and in that view of the matter, the Suit was dismissed, with a direction to the Appellant to pay the Court free and Suit costs. 9. The Appellant as against the judgment and decree dated 12.08.2005 has come forward with this Appeal as an indigent person. In the memorandum of grounds of Appeal, it was contended that the Court below did not appreciate the evidence of DW3, who himself deposed that the putrefaction of the right forearm was not due to the I.V. Fluid, but only due to the ointment applied and the bandage put by the First Respondent. It was also held that the Court below ought not to have dismissed the Suit on the ground of non-joinder of a necessary party as party Respondent, viz., Government Hospital, Kancheepuram. It is also claimed that the Court has power to order impleadment of parties Order 1, Rule 10(2) of C.P.C. and the Court below ought to have impleaded the appropriate parties. 10. It is also claimed that the Court has power to order impleadment of parties Order 1, Rule 10(2) of C.P.C. and the Court below ought to have impleaded the appropriate parties. 10. Before this Court, a Petition in C.M.P. No.1 of 2008 has also been filed to implead the Chief Medical Officer, Government Hospital, Kancheepuram, as a party Respondent. On notice, the proposed party is represented by Mr. V. Ravi, learned Special Government Pleader and he filed a Counter Affidavit dated 24.03.2008 stating that no doubt the child was treated at the Government Hospital at Kancheepuram and since, the mother of the Appellant decided that there was no improvement in the health condition of the child, against the medical opinion the child was discharged from the hospital, however, with a good condition and the mother of the Appellant also did not mention about the swollen hand and at the time of discharge, there was no Complaint about the health of the child. 11. Because of the non-impleadment of the necessary parties, whether the Appellant should be denied the relief is also an additional issue that arises for consideration in this Appeal. 12. The question, whether the proposed third Respondent should be made as a party is not the only issue herein. In any claim made against the State Government as per Article 300 of the Constitution, a Suit can be instituted against the State Government only in the name of the State and in the name of any individual Officers. Further, section 79 of the Civil Procedure Code, also reads as follows: “79, Suits by or against Government.- In a Suit by or against the Government the authority to be named as Plaintiff or Defendant, as the case may be, shall be- (a) in the case of a suit by or against the Central Government, the Union of India, and (b) in the case of a Suit by or against State Government, the State.” 13. In the present case, though, the Appellant is seeking for compensation against the Officers of the Government including the Doctors of Government Hospital at Kancheepuram and at Government Children Hospital, Egmore, for reasons best known, the Appellant had not made the State Government as a party to the Suit. 14. In the present case, though, the Appellant is seeking for compensation against the Officers of the Government including the Doctors of Government Hospital at Kancheepuram and at Government Children Hospital, Egmore, for reasons best known, the Appellant had not made the State Government as a party to the Suit. 14. It is because of that reason that the Court below could not adjudicate upon Issue No.5, even though, as a matter of fact, it found that the child had lost his right forearm due to the operation carried out. In the absence of proper and necessary parties not before the Court, the Trial Court ought to have impleaded proper parties. For doing so, it has ample power under Order 1, Rule 10, C.P.C. Without the proper parties being present, the issues should not have been framed by the Trail Court and decided the way, in which it had been done. Therefore, this Court has no hesitation to set aside the judgment and decree, even though some of the issues had gone against Appellant. 15. In the interest of justice, C.M.P. No.1 of 2008 must also be ordered and the Third Respondent, viz., The Chief Medical Officer, Government Hospital, Kancheepuram should be made a party to answer the allegation made in the Suit. Accordingly, C.M.P. No.1 of 2008 is ordered. 16. Further, since the State of Tamil Nadu has also not been made a party, this Court by the exercise of the power under Order 1, Rule 10, C.P.C. directs impleadment of State of Tamil Nadu, represented by the Secretary to Government, Department of Health and Family Welfare, Fort St. George, Chennai, as Fourth Defendant. 17. In this context, it is necessary to refer to the decision of the Supreme Court in The District Collection, Srikakulam and Ors. v. Bagathi Krishna Rao and Another, 2010 (6) SCC 427 , wherein, the Supreme Court has more or less dealt with an identical issue and set out in paragraphs 89 to 13 of the said decision and emphasized the necessity to implead the Government as a party, which reads as follows: “8. v. Bagathi Krishna Rao and Another, 2010 (6) SCC 427 , wherein, the Supreme Court has more or less dealt with an identical issue and set out in paragraphs 89 to 13 of the said decision and emphasized the necessity to implead the Government as a party, which reads as follows: “8. Section 79 of the Code of Civil Procedure (hereinafter ‘C.P.C.’) specifically deals with Suits by and against the Government and provides that in Suits by and against the Government, the authority to be impleaded as a Plaintiff or Defendant, would be the Union of India or Central Government or the State or State Government. 9. Proviso to Rule 9 of Order 1 provides that non-joinder of necessary party is fatal. Rule 1 of Order 27, C.P.C. deals with suits by or against the Government or by officers in their official capacity. It provides that in any Suit by or against the Government, the Plaint or the Written Statement shall be signed by such person as the Government may like by general or special order authorize in that behalf and shall be verified by any person whom the Government may so appoint. 10. Article 300 of the Constitution deals with legal proceedings by or against the Union of India or State and provides that in a Suit by or against the Government, the authority to be named as Plaintiff or Defendant, as the case may be; in the case of the Central Government, the Union of India and in the case of State Government, the State, which is suing or is being sued. 11. A Constitution Bench of this Court in The State of Punjab v. The Okara Grain Buyers Syndicate Ltd., Okara and Anr., MANU/SC/0023/1963 : AIR 1964 SC 669 held that if relief is sought against the State, Suit lies only against the State, but, it may be filed against the Government if the Government acts under colour of the legal title and not as a Sovereign Authority e.g. in a case where the property comes to it under a decree of the Court. 12. In Ranjeet Mai v. General Manager, Northern Railway, New Delhi and Anr., MANU/SC/0545/1976 : AIR 1977 SC 1701 , this Court considered a case where the Writ Petition had been filed challenging the order of termination from service against the General Manager of the Northern Railways without impleading the Union of India. 12. In Ranjeet Mai v. General Manager, Northern Railway, New Delhi and Anr., MANU/SC/0545/1976 : AIR 1977 SC 1701 , this Court considered a case where the Writ Petition had been filed challenging the order of termination from service against the General Manager of the Northern Railways without impleading the Union of India. The Court held as under: “7. The Union of India represents the Railway Administration. The Union carries administration through different servants. These servants all represent the Union in regard to activities whether in the matter of appointment or in the matter or removal. It cannot be denied that any order which will be passed on an Application under Article 226 which will have the effect of setting aside the removal will fasten liability on the Union of India, and not on any servant of the Union. Therefore, from all points of view, the Union of India was rightly held by the High Court to be a necessary party. The petition was rightly rejected by the High Court.” [see also The State of Kerala v. The General Manager, Southern Railway, Madras, MANU/SC/0032/1976 : AIR 1976 SC 2538 ] 13. In Kali Prasad Agarwala (Dead by L.Rs.) and Ors. v. Bharat Coking Coal Limited and Ors., AIR 1989 SC 1530 , while considering an issue whether the Suit lands had vested, free from encumbrance in the State consequent upon the issuance of Notification under Section 3 of the Bihar Land Reforms Act, this Court did not entertain the case observing as under: “9. In our opinion, it is unnecessary to consider the first question and indeed it is not proper also to consider the question in the absence of the State which is a necessary party for adjudication of that dispute. The State of Bihar is not impleaded as a party to the Suit and we, therefore, refrain from expressing any opinion on the first question.” 18. As regards the question of Court’s power to implead the necessary party suo motu for deciding the lis, the following passages found in Paragraphs 14 to 16 are relevant and it reads as follows: “14. In Sangamesh Printing Press v. Chief Executive Officer, Taluk Development Board, MANUS/SC/0997/1999 : 1999 (6) SCC 44 , the State was not impleaded as a party before the Trial Court in a money recovery Suit. The same was dismissed on the ground of non-impleadment of necessary party. In Sangamesh Printing Press v. Chief Executive Officer, Taluk Development Board, MANUS/SC/0997/1999 : 1999 (6) SCC 44 , the State was not impleaded as a party before the Trial Court in a money recovery Suit. The same was dismissed on the ground of non-impleadment of necessary party. During Appeal, an Application was made under Order 1, Rule 10 praying for impleadment of the State, however the High Court decided the matter on merits without considering the same. This Court observed as under: “9. Keeping in view the facts and circumstances of the case, we are of the opinion that the High Court should have decided the Appellant’s application under Order 1, Rules 10, C.P.C. and, thereafter, proceeded to hear the Appeal in question. Not having disposed of the Application under Order 1, Rule 10 has caused serious prejudice to the Appellant. We, therefore, set aside the judgment of the High Court and restore Regular First Appeal No. 29 of 1987 to its file. The High Court should first deal with the Application under Order 1, Rule 10, C.P.C. which is pending before it and then proceed to dispose of the Appeal in accordance with law.” 15. While considering the similar case in Chief Conservator of Forests, Government of A.P. v. Collector and Ors., MANU/SC/0153/2003 : AIR 2003 SC 1805 , this Court accepted the submission that Writ cannot be entertained without impleading the State if relief is sought against the State. This Court had drawn the analogy from Section 79, C.P.C., which directs that the State shall be the authority to be named ‘as plaintiff or defendant in a Suit by or against the Government and Section 80 thereof directs notice to the Secretary of that State or the Collector of the district before the institution of the Suit and Rul1 of Order 27 lays down as to who should sign the pleadings. No individual officer of the Government under the scheme of the Constitution nor under the C.P.C., can file a Suit nor initiate any proceeding in the name and the post he is holding, who is not a juristic person. 16. No individual officer of the Government under the scheme of the Constitution nor under the C.P.C., can file a Suit nor initiate any proceeding in the name and the post he is holding, who is not a juristic person. 16. In Bal Niketan Nursery School v. Kesari Prasad, MANU/SC/0741/1987 : AIR 1987 SC 1970 , this Court held that Application for impleadment of a necessary party can be filed at any stage of proceeding provided the Court is satisfied that exceptional circumstances prevailing in the case, warrant the impleadment.” 19. In the light of the decision cited supra and in the interest of justice, this Appeal is allowed. The judgment and decree made in O.S. No. 230 of 1998 dated 12.08.2005, stands set aside and the matter is remitted back to the Trial Court for fresh disposal, with the additional parties impleaded as defendants 3 and 4, viz., The Chief Medical Officer, Government Hospital, Kancheepuram and State of Tamil Nadu, represented by Secretary to Government, Department of Health and Family Welfare, Fort St. George, Chennai – 600 009. The Trial Court shall issue appropriate notices to all the parties including to the newly added parties and conduct the trial afresh in accordance with law. The findings rendered in respect of the other issues also stand deleted and all the issues are left open for determination by the Trial Court. The Court below shall decide the matter uninfluenced by the earlier findings rendered by this Court. However, there shall not no order as to costs. The connected M.P. No. 1 of 2008 is ordered.