JUDGMENT : M.L. Joseph Francis, J. 1. This appeal is preferred by the plaintiffs against the judgment and decree in O.S. No. 320 of 1993 on the file of the Additional Sub Court, Kollam which was initially filed as O.P. (Indigent) No. 88 of 1991 before the Sub Court, Kollam. Through the original suit, the plaintiffs prayed for damages from the defendants on the ground of medical negligence committed by the 3rd defendant. In the plaint, the plaintiffs alleged that the 3rd defendant conducted a P.P.S. Operation (Tubectomy) on the first plaintiff under National Family Planning Scheme at the Primary Health Centre, Kundara. The first plaintiff is a poor cashew worker, who was the mother of three normal children at the time of the said P.P.S. operation conducted on 25.6.1985. The 1st plaintiff was assured by the 3rd defendant that the said operation was successful and that she would not become pregnant again. Moreover, she was given a certificate by the defendants that P.P.S. operation was conducted on her. But she became pregnant again and gave birth to the second plaintiff, who was a congenitally abnormal child. 2. The plaintiffs further averred in the plaint that the first plaintiff at the time of admission as an inpatient, enquired whether the third defendant who was a Medical Officer had the required degree of skill, knowledge and experience to successfully conduct a P.P.S. operation, but due to the failure to take reasonable care and also due to the failure to carry out the operation with the required degree of skill and knowledge, the operation was a failure. This was realised only when the first plaintiff became pregnant. The plaintiffs further stated that apart from congenital deformity of a child, the 2nd plaintiff is also suffering from chronic asthma, tuberculosis and broncho pneumonia with marasmus. The unwanted pregnancy of the first plaintiff resulted in her losing her job and the failure of the operation resulted not only in the unwanted pregnancy but also in the birth of a congenitally deformed child and the 1st plaintiff had expended huge amounts for medical treatment of both herself and her child. An amount of Rs. 50,000/- was claimed by the plaintiffs towards medical treatment and a further amount of Rs. 50,000/- was claimed as special damages being the damages for physical and mental suffering. 3. An amount of Rs. 50,000/- was claimed by the plaintiffs towards medical treatment and a further amount of Rs. 50,000/- was claimed as special damages being the damages for physical and mental suffering. 3. It was stated in the plaint that the 3rd defendant, who conducted the operation, and the 2nd defendant are both servants of the first defendant and that there is an employee-employer relationship between the first defendant and the other two defendants. 4. The defendants 1 and 2 filed a joint written statement wherein they contended that on 25.6.1985, the 1st plaintiff had undergone a P.P.S. operation at Primary Health Centre, Kundara and that on verification of records it was seen that the P.P.S. operation conducted on the first plaintiff on 25.6.1985 was a failure as the right fallopian tube could not be pulled out due to adhesion and hence the surgery was not possible on the right fallopian tube. It was also contended that the husband of the first plaintiff was advised to undergo Vasectomy and that he never heeded to that advice. Moreover the first plaintiff who had conceived subsequent to the said P.P.S. operation, did not even care to undergo Medical Termination of Pregnancy. The defendants also alleged that the suit has been filed beyond the period of limitation. 5. The third defendant filed a written statement contending as follows: The suit is barred by limitation. Plaintiff was promoted for P.P.S. operation by Smt. N. Vijayamma and 1st plaintiff was admitted in the primary Health Centre, Kundara on 24.6.1985. After complying with the necessary formalities with due care and caution, the left fallopian tube of the first plaintiff was pulled out. The right fallopian tube could not be pulled out due to adhesion. Since the surgery was not successful, first plaintiff's husband was advised to undergo Vasectomy by the third defendant. Infectious diseases like tuberculosis, pneumonia etc. suffered by the 2nd plaintiff have no nexus with the Tubectomy done three years ago. Marasmus is the result of malnutrition. 6. Before the Sub Court, PW 1 to PW 3 and DW 1 to DW 4 were examined and Exts. A1 to A17 and Ext. B1 were marked. Infectious diseases like tuberculosis, pneumonia etc. suffered by the 2nd plaintiff have no nexus with the Tubectomy done three years ago. Marasmus is the result of malnutrition. 6. Before the Sub Court, PW 1 to PW 3 and DW 1 to DW 4 were examined and Exts. A1 to A17 and Ext. B1 were marked. The learned Sub Judge, on considering the evidence on record, found that the first plaintiff's suit is barred by limitation and the suit was dismissed on the ground that the court was unable to come to a conclusion that the third defendant was negligent while conducting Tubectomy. Against that judgment and decree dismissing the suit, the plaintiffs filed this Appeal. 7. Heard the learned counsel for the appellants and the learned counsel appearing for the respondents. 8. The learned counsel for the appellants raised the following arguments: The Court below ought to have found that the third defendant had failed to exercise reasonable care and caution expected from a surgeon and performed Tubectomy on the first plaintiff, negligently. Failure to remove a fallopian tube, in a P.P.S. surgery is a very serious mistake and no natural cause can be attributed to such a failure. If at all any such natural cause was available, the same should have been conclusively proved by the defendants. The Court below gravely erred in placing reliance on Ext. B1. It is a false, fabricated and concocted document which, in the interest of justice, should have been disbelieved. The Court below erred in relying upon a purported admission, which was later explained by PW 2. The Court below failed to note that as far as the first plaintiff is concerned, the cause of action for the purpose of limitation actually arose on 1.10.1988 i.e., the date of delivery. Had the child not been born, the cause of action as such may not have been available. The finding that the suit is barred by limitation as far as the first plaintiff is concerned, is thus incorrect and unsustainable. The learned counsel for the respondents supported the judgment of the court below. 9. PW 1 is the first plaintiff. PW 1 deposed that on 25.6.1985, she was subjected to P.P.S. operation at Primary Health Centre, Kundara and that the operation was conducted by the third defendant. Ext. The learned counsel for the respondents supported the judgment of the court below. 9. PW 1 is the first plaintiff. PW 1 deposed that on 25.6.1985, she was subjected to P.P.S. operation at Primary Health Centre, Kundara and that the operation was conducted by the third defendant. Ext. A1 is the duplicate certificate issued by the Medical Officer-in-Charge of Primary Health Centre, Kundara dated 18.3.1989 stating that PW 1 had undergone P.P.S. operation in that institution on 25.6.1985. PW 1 deposed that the original of Ext. A1 was produced for getting medical benefits from the E.S.I. Hospital. PW 1 deposed that she was admitted in Primary Health Centre, Kundara for the purpose of P.P.S. operation as proposed by Vijayamma, who was her neighbour working in Primary Health Centre, Kundara as Auxiliary Nurse and Midwife (ANM). PW 1 deposed that it was told by Vijayamma that if P.P.S. operation was conducted, no child will be born to her thereafter. She also deposed that the third defendant, who was working as a doctor in that Primary Health Centre also told her that if P.P.S. operation was done, she would not conceive any more and at that time, her husband was also there. PW 1 deposed that on the basis of that belief, her husband signed the consent form for conducting the P.P.S. Operation on her. At the time of conducting P.P.S. operation, they had three children and there was no sufficient means to maintain those children and therefore, they agreed for the P.P.S. operation. PW 1 deposed that after conducting P.P.S. operation, a certificate was given stating that the P.P.S. operation was successful. She deposed that after the P.P.S. operation, she began to go for her work as a cashew factory employee. PW 1 deposed that in 1988, when she felt uneasiness and tiredness, she went to the E.S.I. Hospital for medical check up and the doctor told her that she was five months pregnant. As per the advice given by the doctor, she went to the District Hospital, Kollam and after examining her, the doctor told her that she was pregnant and if abortion was done, her life would be in danger. On 25.9.1988, she was admitted in District Hospital, Kollam for delivery and she gave birth to the second plaintiff. After delivery, she was subjected to P.P.S. operation in that hospital and she was discharged on 5.10.1988. Ext. On 25.9.1988, she was admitted in District Hospital, Kollam for delivery and she gave birth to the second plaintiff. After delivery, she was subjected to P.P.S. operation in that hospital and she was discharged on 5.10.1988. Ext. A2 is the certificate dated 5.10.1988 issued by the Medical Officer of Government Victoria Hospital, Kollam stating that PW 1 had undergone P.P.S. operation on 1.10.1988. PW 1 deposed that the second plaintiff is not a healthy child and he had undergone treatment for Asthma and Tuberculosis. In cross-examination, PW 1 admitted that after the P.P.S. operation conducted by the third defendant, the third defendant talked to her and to her husband. 10. PW 2 is the husband of PW 1, PW 2 deposed that PW 1 was admitted in Primary Health Centre, Kundara on 24.6.1985 and that he had signed consent form for conducting P.P.S. operation and on the basis of that consent, P.P.S. operation was conducted on 25.6.1985. In cross examination, PW 2 deposed that after the P.P.S. operation, the third defendant might have given instructions to PW 1, PW 2 admitted in cross examination that after his marriage with PW 1, she became pregnant after two months and this fact was told by her and after the birth of the first child, PW 1 again became pregnant and when the monthly menstruation was disrupted, that fact was told by her and when she again became pregnant, PW 1 told about it. PW 2 deposed that when PW 1 became pregnant after the first P.P.S. operation, she told about her pregnancy only after four or five months. PW 2 admitted in cross examination that when PW 1 became pregnant after P.P.S. operation, she did not meet Vijayamma or the third defendant or the doctor of Primary Health Centre, Kundara. In cross examination, PW 2 admitted that after the P.P.S. operation, the third defendant told him that one Fallopian tube of PW 1 could not be removed and therefore, advised him to undergo Vasectomy. But, that admission of PW 2 was withdrawn by PW 2 when he was recalled and further re-examined after one month. 11. PW 3 is the doctor who was working in Nani Memorial Nursing Home. PW 3 deposed that the second plaintiff was treated in that hospital for Tuberculosis. But, that admission of PW 2 was withdrawn by PW 2 when he was recalled and further re-examined after one month. 11. PW 3 is the doctor who was working in Nani Memorial Nursing Home. PW 3 deposed that the second plaintiff was treated in that hospital for Tuberculosis. In cross examination, PW 3 admitted that P.P.S. operation will not be successful in every case and that if one fallopian tube could not be pulled out, P.P.S. operation would not be successful. 12. PW 3 opined that there are chances for a fallopian tube to be adhesive due to natural causes and in such cases, the husband will be advised to undergo Vasectomy. He further opined that when one fallopian tube becomes adhesive, in the next delivery, the fallopian tube could be pulled out due to natural causes. 13. The third defendant was examined as DW 1. She admitted that in 1985, she was working as a doctor in Primary Health Centre, Kundara and she had conducted P.P.S. operation on PW 1 after obtaining the consent of PW 1 and her husband. DW 1 deposed that since one fallopian tube of PW 1 was adhesive, that tube could not be removed. She deposed that she informed this fact to PW 1 and advised the husband of PW 1 to undergo Vasectomy. DW 1 deposed that at the time of discharge of the patient after conducting P.P.S. operation, a card and certificate will be given to the patient and in that card, the result of the operation will be recorded. 14. DW 2 was the Deputy Director of Health Services. DW 2 deposed that while she was in service, DW 1 was working as Charge Medical Officer in Primary Health Centre, Kundara. DW 2 deposed that DW 1 approached her for getting a copy of the case sheet of PW 1 and that as per the application filed by DW 1, she gave Ext. B1 photocopy of the case sheet to DW 1 and the original was in the custody of DW 2. In Ext. B1, it is stated that the right tube cannot be pulled out due to adhesiveness. Advised the husband to undergo Vasectomy. Ext. B1 cannot be given any evidentiary value as the defendants did not produce the original of Ext. B1 in spite of the steps taken by the plaintiffs to produce the original case sheet. In Ext. B1, it is stated that the right tube cannot be pulled out due to adhesiveness. Advised the husband to undergo Vasectomy. Ext. B1 cannot be given any evidentiary value as the defendants did not produce the original of Ext. B1 in spite of the steps taken by the plaintiffs to produce the original case sheet. DW 2 deposed that even if P.P.S. operation is not successful, the certificate will be given for getting medical benefits. 15. DW 3 Ajithakumari was working as a Professor and the Head of the Department of Gynaecology, Medical College Hospital, Alappuzha. She is a Post Graduate in Gynaecology and was handling the Department for the last 26 years and she has conducted so many tubectomies and other sterilization operations. She deposed that P.P.S. can be conducted in a Primary Health Centre by a trained doctor. She deposed that in certain cases, one of the fallopian tubes cannot be pulled out due to adhesiveness and ever without adhesiveness, in certain cases, tube cannot be pulled out due to other reasons and in such cases, in the Primary Health Centres, the doctor will advise the husband of the patient to undergo Vasectomy. She deposed that even if the patient becomes pregnant after P.P.S. operation, she can undergo M.T.P. She opined that even if one of the fallopian tubes could not be pulled out in an earlier occasion, the same can be pulled out after delivery due to natural causes or in a better operation condition. DW 3 opined that Pneumonia and Tuberculosis are caused due to infection. The state called marasmus is the clinical manifestation of general nutritional deficiency and in case of a boy, marasmas means that body weight is less than 60% of the expected weight and that the above said illness has no nexus with the P.P.S. operation and it can never be caused by P.P.S. DW 3 deposed that the L.P. register will show that the patient has been admitted in the hospital and the nature and type of treatment given to the patient will be seen only from the case sheet and at the time of discharge, discharge certificate will be issued and the important points regarding the treatment will be noted in the discharge certificate and the details in the discharge certificate need not necessarily be entered in the L.P. register. DW 3 deposed that usually, the patient will be discharged with advice and the same will be entered in the discharge certificate. 16. DW 4 Vijayamma was working as an Auxiliary Nursing-cum-Midwife. She deposed that in 1985, she was working as an Auxiliary Nursing-cum-Midwife in the Primary Health Centre, Kundara. She was a promoter under Family Planning Scheme. DW 4 deposed that the third delivery of PW 1 was attended to by her and after the delivery, PW 1 was taken to the Primary Health Centre, Kundara, where the third defendant was working as a doctor and P.P.S. operation was done by the third defendant on PW 1. She deposed that she knew PW 1 and PW 2. PW 4 deposed that the P.P.S. operation done by the third defendant on PW 31 was not successful as one tube could not be removed. She deposed that due to the failure of P.P.S. operation, the third defendant advised the husband of PW 1 to undergo Vasectomy and she was present there while the third respondent gave such advice to the husband of PW 1. DW 4 deposed that after two years from the date of the first P.P.S. operation, she came to know that PW 1 became pregnant and therefore, she advised PW 1 to undergo M.T.P. 17. In the decision reported in State of Punjab Vs. Shiv Ram and Others, a three Judges Bench of the Apex Court observed as follows: 26. The methods of sterilization so far known to medical science which are most popular and prevalent are not 100% safe and secure. In spite of the operation having been successfully performed and without any negligence on the part of the surgeon, the sterilized woman can become pregnant due to natural causes. Once the woman misses the menstrual cycle, it is expected of the couple to visit the doctor and seek medical advice. A reference to the provisions of the Medical Termination of Pregnancy Act, 1971 is apposite. Section 3 thereof permits termination of pregnancy by a registered medical practitioner, notwithstanding anything contained in the Indian Penal Code, 1860 in certain circumstances and within a period of 20 weeks of the length of pregnancy. A reference to the provisions of the Medical Termination of Pregnancy Act, 1971 is apposite. Section 3 thereof permits termination of pregnancy by a registered medical practitioner, notwithstanding anything contained in the Indian Penal Code, 1860 in certain circumstances and within a period of 20 weeks of the length of pregnancy. Explanation II appended to sub-section (2) of Section 3 provides- Explanation II.-Where any pregnancy occurs as a result of failure of any device or method used by any married woman or her husband for the purpose of limiting the number of children, the anguish caused by such unwanted pregnancy may be presumed to constitute a grave injury to the mental health of the pregnant woman. 27. And that provides, under the law, a valid and legal ground for termination of pregnancy. If the woman has suffered an unwanted pregnancy, it can be terminated and this is legal and permissible under the Medical Termination of Pregnancy Act, 1971. 28. The cause of action for claiming compensation in cases of failed sterilization operation arises on account of negligence of the surgeon and not on account of child birth. Failure due to natural causes would not provide any ground for claim. It is for the woman who has conceived the child to go or not to go for medical termination of pregnancy. Having gathered the knowledge of conception in spite of having undergone sterilization operation, if the couple opts for bearing the child, it ceases to be an unwanted child. Compensation for maintenance and upbringing of such a child cannot be claimed. In that decision, a two Judges Bench decision reported in State of Haryana and Others Vs. Smt. Santra, was distinguished as follows: Mrs. K. Sarada Devi, the learned counsel appearing for the plaintiffs-respondents placed reliance on a 2-Judge Bench decision of this Court in State of Haryana and Others Vs. Smt. Santra, wherein this Court has upheld the decree awarding damages for medical negligence on account of the lady having given birth to an unwanted child on account of failure of sterilization operation. The case is clearly distinguishable and cannot be said to be laying down any law of universal application. The finding of fact arrived at therein was that the lady had offered herself for complete sterilization and not for partial operation and, therefore, both her fallopian tubes should have been operated upon. The case is clearly distinguishable and cannot be said to be laying down any law of universal application. The finding of fact arrived at therein was that the lady had offered herself for complete sterilization and not for partial operation and, therefore, both her fallopian tubes should have been operated upon. It was found as a matter of fact that only the right fallopian tube was operated upon and the left fallopian tube was left untouched. She was issued a certificate that her operation was successful and she was assured that she would not conceive a child in future. It was in these circumstances, that a case of medical negligence was found and a decree for compensation in tort was held justified. The case thus proceeds on its own facts. 18. In the present case, the testimony of medical experts like DW 3 is to the effect that P.P.S. can be conducted in a Primary Health Centre by a trained doctor and in certain cases, one of the fallopian tubes cannot be pulled out due to adhesiveness and even without adhesiveness, in certain cases, tube cannot be pulled out due to certain other reasons and in such cases, the doctor will advise the husband of the patient to undergo Vasectomy and that even if patient becomes pregnant after P.P.S. operation, she can undergo M.T.P. The plaintiffs have not produced the discharge certificate issued from the Primary Health Centre, Kundara after discharging PW 1 from that hospital after conducting P.P.S. operation. If that discharge certificate was produced by the plaintiffs, it would have been a sufficient evidence to ascertain whether P.P.S. conducted by the third defendant on PW 1 was on one fallopian tube and whether the operation could not be conducted successfully due to adhesion of the other fallopian tube. The evidence on record would prove that the third defendant could not conduct P.P.S. operation on PW 1 successfully due to adhesion of one of the fallopian tubes. The plaintiffs are not seriously disputing this fact. In Ext. A1 certificate, it is not stated that P.P.S. operation conducted by the third defendant on PW 1 was successful. PW 1 admits that after P.P.S. operation conducted by the third defendant on her, the third defendant talked to PW 2, her husband. When PW 2 was cross examined, he admitted the fact that the third defendant instructed him to undergo Vasectomy. PW 1 admits that after P.P.S. operation conducted by the third defendant on her, the third defendant talked to PW 2, her husband. When PW 2 was cross examined, he admitted the fact that the third defendant instructed him to undergo Vasectomy. Admittedly, DW 4 was a neighbour of PW 1 and an A.N.M. in Primary Health Centre, Kundara. She was a promoter of Family Planning Scheme, who recommended PW 1 to undergo P.P.S. operation. The fact that DW 4 is a Government servant worked under the third defendant is not a sufficient ground to disbelieve the testimony of DW 4. The testimony of DW 4 would clearly show that P.P.S. operation on PW 1 conducted by the third defendant was not successful as one fallopian tube could not be pulled out and the third defendant had informed PW 1 about this and the husband of PW 1 was advised to undergo Vasectomy. The testimony of DW 4 that when PW 1 became pregnant after P.P.S. operation, she advised PW 1 to undergo M.T.P. also cannot be disbelieved. The testimony of PW 1 and PW 2 that they came to know about the pregnancy of PW 1 after the 1st P.P.S. operation only after four or five months of pregnancy cannot be believed on the background that in the previous three pregnancies, PW 1 knew about the pregnancy when she missed the menstrual cycle. Since PW 1 and her husband had the knowledge of conception of PW 1 in time after the P.P.S. operation and as they opted for bearing the child, it ceases to be an unwanted child. Since the plaintiffs have failed to prove any medical negligence on the part of the third defendant in conducting P.P.S. operation on the first plaintiff, the learned Sub Judge is fully justified in dismissing the suit. 19. When tortious liability arises due to negligence, mistake or planning or failure to discharge public duty, the period of limitation is governed by Article 113 of the Limitation Act wherein the limitation prescribed is three years from the date when the right to sue accrues. The right to sue may accrue to a suitor in a given case at different points of time and the period of limitation would be differently computed depending upon the last day when the cause of action there for arose. The right to sue may accrue to a suitor in a given case at different points of time and the period of limitation would be differently computed depending upon the last day when the cause of action there for arose. As argued by the learned counsel for the appellants, the cause of action for the purpose of limitation under Article 113 of the Limitation Act actually arose on 1.10.1988, i.e., the date of delivery of second plaintiff after P.P.S. operation and if that child would not have been born alive, the cause of action as such may not have been available. Since the suit was filed as pauper O.P. on 8.8.1991, within three years from 1.10.1988, I find that the suit is not barred by limitation. 20. The present suit and appeal were filed by the appellants/plaintiffs as indigent persons without paying court fee. Order 33 Rule 11 of the CPC provides that when the plaintiff fails in the suit or the permission granted to him to sue as an indigent person has been withdrawn, or where the suit is withdrawn or dismissed, the court 'may' order the plaintiff or any person added as a co-plaintiff to the suit, to pay the court fees which would have been paid by the plaintiff if he had not been permitted to sue as an indigent person. The word 'shall' was substituted in that Rule by the word 'may' as per Notification No. D1 (A)-43450/86 dated 13.1.1999 published in Kerala Gazette No. 17 dated 22.4.1999. Therefore, it is not mandatory in all cases to recover court fee from the plaintiff or appellant when the indigent suit or indigent appeal fails. 21. In the present case, plaintiffs were constrained to file this suit when they were compelled to spend a lot of money for the treatment of the 2nd plaintiff, who was suffering from various ailments. Considering the facts and circumstances of the case, I am of the view that it is not proper to recover court fee payable on the plaint and on the appeal memorandum from the appellants/plaintiffs. Accordingly, this appeal is dismissed without costs, confirming the judgment and decree dismissing O.S. 320 of 1993 on the file of the Additional Sub Court, Kollam. The court fee payable by the plaintiffs on the plaint and on the appeal memorandum need not be recovered from the appellants/plaintiffs.