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Judgment
Nawab Singh, J.—This plaintiffs appeal is directed against the judgment and decree dated November 16, 2006 passed by Additional District Judge, Narnaul, whereby, he accepted the appeal preferred by the defendants, set-aside the judgment and decree dated August 5, 2004 of Civil Judge (Junior Division), Mahendergarh and dismissed the suit.
For the sake of convenience, the parties will be referred to as arrayed in the suit.
Plaintiff is married with Suresh Kumar. She has four children. On motivation given by the defendants, she got herself sterilized at CHC, Mohindergarh on November 10, 1997 by defendant No. 3. Due to negligence of defendants, the plaintiff got pregnant and gave birth to a female child on February 4, 2000. It was pleaded that she was a poor lady and due to incompetence and negligence of defendants, she was burdened with additional girl child. Hence, suit for damages.
The defendant resisted the suit and filed written-statement. It has been, inter-alia, averred that plaintiff was not assured that there was no failure rate of the operation. She herself consented to the same. Competent doctor carefully conducted sterilization operation and child was not born due to the negligence of the doctor. Further, plaintiff could get the pregnancy terminated when she came to know about her conception.
On the contest of parties, following issues were framed:
Whether the plaintiff is entitled to recover an amount of Rs. 1 lac on the ground as mentioned in the plaint? OPP
Whether the suit is not maintainable in the present form? OPD
Whether the suit is bad for want of proper Court Fee? OPD
Whether the plaintiff has no locus standi to file the suit? OPD
Whether the suit of the plaintiff is time barred? OPD
Whether the suit of the plaintiff is bad for want of necessary parties? OPD 3. Relief.
Issue No. 1 was decided in favour of the plaintiff. The suit was decreed. Defendants filed appeal. First Appellate Court accepted the appeal and dismissed the suit of the plaintiff by holding that negligence of the doctor in conducting the operation was not proved by any cogent and reliable evidence.
Along with the memorandum of appeal, an application has been filed for condonation of delay of 103 days in refilling the appeal.
The only ground pleaded for condonation is that the delay was not intentional.
No explanation has been put forth by the applicant-appellant as to why delay occurred in re-filing of the appeal. It is well settled principle of law of limitation that those who are sleeping over their rights, their slumber should not be disturbed. In Raghunath v. State of Haryana and Ors. 1998(2) S.L.J. 1277, a Division Bench of this Court has commented that Act cannot be given a complete go by and it cannot be held that whatever be the delay and however unsatisfactory the explanation, the Court is bound to condone it. In Ajit Singh and Others Vs. Karnail Singh and Others, , it was held by this Court that though the law regarding condonation of delay is very liberal but it cannot be stretched to mean that a party can approach the Court any time it likes, totally ignoring the rigours provided in the Act.
Hon''ble Supreme Court of India ruled in P.K. Ramachandran Vs. State of Kerala and Another, that law of limitation may harshly affect a particular party but it has to be applied with all its rigour when the statute so prescribes and the Court has no power to extend the period of limitation on equitable grounds.
Even if for the sake of arguments, it is assumed that it was a fit case where this Court should have condoned the delay in filing the appeal, still, it will be of no avail to the plaintiff-appellant as the appellant has hardly any case on merit.
What calls for pointed notice is that when a lady undergoes surgery of the kind involved in the case and she later conceives, it will, of course, prove that the operation was not successful but something more is required to be established. That ''something'' is negligence on part of the Doctor concerned. Without proof of such negligence, the lady would not be entitled to damages or compensation.
There always remains percentage of 3% to 7% of failure of such operation depending on technique adopted. That is due to reasons beyond the control of the Surgeons. Unless ''negligence'' on part of the doctor is proved by sufficient and cogent evidence, the Doctor can not be held liable.
In the case in hand, plaintiff failed to prove negligence by any satisfactory evidence. It has not been shown that the Doctor was guilty of any act of omission or commission. It has been so ruled by a 3-Judge Bench of Hon''ble Apex court in State of Punjab Vs. Shiv Ram and Others, .
In upshot for the reasons recorded, supra, no illegality or irregularity is discernible in the well considered impugned judgment of First Appellate Court. The same is, therefore, upheld.
Resultantly, the application u/s 5 of the Act and the appeal are hereby dismissed.