A. Sarangadharan and Another vs Dr. Vijayan and Others

S. Sankarasubban, J.—The plaintiffs in O. S. 540/95 on the file of the Sub Court, Trivandrum are the revision petitioners. The plaintiffs have approached this Court challenging the order in I. A. No. 3180/95. That application was filed by the first respondent Dr. Vijayan to remove him from the party array. As already stated the petitioners are the plaintiffs in O.S. No. 540/95. That suit was filed for compensation. The events of filing of that suit are as follows :-- The petitioners'' son one Dr. Jayakumar was working in the isolation ward of the Medical College, Trivandrum till 29-7-1988. He got ill and was admitted in the Medical College Hospital on 29-7-1988. He was treated by the first respondent and a team of doctors. Dr. Jayakumar died due to the negligence of the doctors who attended on him. Hence suit was instituted for recovery of Rs. 5,50,000/-, as compensation from defendants 1 to 4 who are respondents 1 to 4. Before filing the suit, a notice u/s 80 was issued to the State of Kerala. But no notice had been issued to the first respondent, Dr. Vijayan. Thereafter Dr. Vijayan filed I. A. for striking his name from the party array. According to him, a decree has been sought against him and he has been sued as a Public Officer. The allegation against him is that he was negligent and also he had destroyed or concealed some important case sheets and diaries. This was done with a view to escape from criminal liability. Hence it was submitted that there was no need to issue a separate notice to the 4th petitioner. The Court below relying on the decision reported in State of Maharashtra and Another Vs. Shri Chander Kant, held that "the Act" extends to illegal omission and no distinction can be made between acts done illegally and in bad faith and acts done bona fide in official capacity.

Before me, learned counsel for the petitioner Sri. Ananthasubrahmanian read the relevant averments in the plaint and contended that since the action of the first respondent was not becoming as a Public Officer it was not necessary to issue notice to him. He referred to me the decisions in Ghulam Rasool and Another Vs. State of Jammu and Kashmir and Another, , State of Kerala v. R.V.S. Mani (1995) 2 KLT 568 and also to the decision in Ajithkumar v. Sureshkumar (1997) 2 KLT 690.

After hearing both parties, I am of the view that the order of the Court below is correct. The first point is that the plaintiffs have prayed for a decree against the first respondent also. The first respondent was a doctor in the Government hospital and he was discharging the duty as a Public Officer. The decision in Ghulam Rasool and Another Vs. State of Jammu and Kashmir and Another, is not of much help. There the Supreme Court held that the Public Officer was impleaded only as State''s agent and no relief was claimed against him. The relief claimed was against the State. In that view of the matter, it was held that no notice was necessary to the Public Officer, (1997) 2 Ker 690 was the case of reverse order where notice was issued to the Public Officer and no relief was claimed against the State. Hence it was held that no separate notice was necessary against the State. But in this case as I already noted there is a relief against the first respondent. In that view of the matter, notice is necessary. Hence I uphold the order passed by the Court below. C.R.P. is dismissed.