D.H. Shukla, J.
1. The petitioner, P.P. Prabhakaran, residing at 13/L Railway Colony, Vishwamitri, Baroda, has preferred this Civil Revision Application having been aggrieved by the order of the 2nd Jt. Civil Judge (Sr. Dn.), Baroda, dated 10th day of March, 1983 in Special Civil Suit No. 235 of 1980 wherein he held that he had no jurisdiction to try the suit under Section 19 of the Code of Civil Procedure. By the same order, therefore, he directed the plaint to be returned to the plaintiff under Order 7, Rule 10 of the Code of Civil Procedure for its presentation to the proper forum in which the suit ought to have been instituted.
2. The facts of the suit may be briefly stated as under:
3. The petitioner-plaintiff is the father of two daughters both of whom had suffered serious ailments right from their birth allegedly on account of the negligent operation of the petitioner's wife at the time of a delivery earlier in point of time than the birth of these two daughters. The respondent No. 1, Medical Officer-in-charge, Government Hospital, P.O. Ottapalam, Palghat District, Kerala, was a Medical Officer who carried out the operation for the purpose of delivery on petitioner's wife on 20-4-1972. It is alleged that the operation was carried out without blood transfusion and without properly removing the layers of the clotted blood. The petitioner's wife was saved, but the child died. Petitioner's wife was treated for about 34 to 35 days as an indoor patient, but she was kept ignorant of the womb-rupture which fact was revealed only at a time when second operation for delivery was done at a later date. The petitioner has further alleged that she was not properly advised and not warned about the danger in subsequent pregnancy. Consequently, the second child which was bom suffered from mental and serious heart trouble. It is alleged that the petitioner's wife was very badly handled during the first operation as a result of which the second child suffers from heart disease and that he has lost the immunity. This second child was born on 18-2-1974 at Railway Hospital, Pratapnagar, Baroda. It also appears from the judgment that the petitioner's grievance is that the third child born to the petitioner's wife also sutlers from serious ailment allegedly on account of the negligent operation carried out on 20-4-1972. The petitioner avers in his suit that both these children have been subjected to intermittent radiation. Both of them are required to be kept under the cover of Ayurvedic medicines, the potency of antibiotic drugs has also its limits. It is averred in the plaint that on 27-9-1976 the Superintendent of Ajmer Railway Medical Hospital advised immediate heart surgery. The petitioner claims that the respondents should pay the expenses of Rs. 3/- lacs for the heart operation of his child abroad and should also pay the maintenance of his two sick children.
4. The petitioner gave a statutory notice on 30-1-1980 to which the respondent No. 1 gave an evasive reply. The petitioner has claimed in his suit, on behalf of his two children compensation of Rs. 61- lacs as damages for the grounds elaborately stated in paragraphs 9 to 11 of the plaint. The petitioner avers that as a major part of the cause of action occurred in Baroda since both the children were delivered at Baroda with natal serious ailments on account of the negligent operations carried out in Kerala on 20-4-1972, the Civil Court at Baroda has the jurisdiction to try the suit.
5. Incidentally, the petitioner has given the history of his miserable wedded life about which also I would like to make a brief mention since it has a bearing on the petitioner's allegations. The respondent No. 2, Smt. E. Devayani alias E.K. Kumari (defendant No. 2 in the suit) was an Auxiliary Nurse and Midwife of the area. The petitioner's wife had refused to marry her brother and since then the second respondent was nursing a grievance against the petitioner's wife and the petitioner himself. The respondent No. 3, E.K. Kumaran, called the petitioner's wife from the petitioner's place of employment for giving her the deferred dowry ornaments. He then invoked the custom of the community for managing her first delivery and used that occasion to bring about estrangement of relations between the petitioner and his wife. The labour pains started on 18/19-4-1972 and the womb burst at about 12-00 p.m. of 19/20-4-1972. The respondents Nos. 2 and 3 took the petitioner's wife at Ottapalam Government Hospital, though other hospitals situated nearer were available. Thus, the petitioner has impleaded the respondent Nos. 2 and 3 as defendants Nos. 2 and 3 in the suit.
6. The respondents Nos. 4, 5 and 6 are impleaded as the defendant Nos. 4, 5 and 6 in their respective official capacity.
7. The Government Pleader appeared for defendant Nos. 1, 2, 4 and 6 and Mr. J.H. Shah on behalf of the other defendants in the suit. The Government Pleader filed a limited written statement (Exh. 41) reserving a right to file a further detailed written statement later. He contended in his limited written statement (Exh. 41) that the cause of action had arisen within the jurisdiction of the Civil Court in Kerala State and not within the jurisdiction of the Civil Court at Baroda. Several other legal contentions were also raised in the same written statement, as for example, that since the cause of action arose in the year 1972, the suit was barred by limitation and that suit was barred also because the petitioner had failed to serve the Kerala State with a statutory notice. It was urged that preliminary issue be raised on the question of the jurisdiction of the Civil Court at Baroda to try the suit.
8. The respondent No. 3 (defendant No. 3) filed a written statement at Exh. 47 wherein also was raised the contention about the want of jurisdiction of the Civil Court of Baroda to try the suit. The learned Advocate Mr. J.H. Shah submitted an application (Exh. 68) to raise the preliminary issue about jurisdiction and the learned Government Pleader also submitted an application (Exh. 69) to the same effect. The petitioner did not choose to be represented by an Advocate but conducted the matter himself. I may at this stage mention that he has argued this Civil Revision Application before me also without engaging an Advocate. I had suggested to him that if he needed, an Advocate could be given to him under the Legal Aid scheme, but he persistently refused the offer and chose to argue the matter himself.
9. The learned trial Judge granted the applications of the defendants to frame a preliminary issue on the question of jursidiction and raised an issue below Exh. 69 in the following form:
Whether this Court has jurisdiction to entertain the suit?
10. The petitioner submitted before the trial Judge that it was true that the first operation was performed in Kerala, but the fact remained that his second and third child who were born in Baroda suffered inherent ailments right from the time of their birth and that the ailment which they suffered from could be attributed directly to the first negligent operation done on his wife at the time of her delivery. The petitioner submitted that his wife was left in a bleeding condition for about 814 hours and that she was completely kept in dark about the womb rupture. She was not warned about the danger in her future pregnancies. As a result of the bad handling of her during the time of the operation, as for example, the blood clots were not removed, the two children are suffering from a permanent disease. Since the two suffering children were born in Baroda, the Court at Baroda has the jurisdiction to entertain the suit. The petitioner submitted before the trial Judge that the first delivery was normal, but the respondent No. 2 caused the womb rupture and the respondent No. 1 allowed her to bleed so that she may inevitably die. The petitioner invited the attention of the trial Judge to Section 20(c) of the Code of Civil Procedure which provides that the suit could be instituted in a Court within the local limits of whose jurisdiction the cause of action wholly or partly arose.
11. The learned Government Pleuder resisted the petitioner's submissions made in the trial Court. He submitted that the question would be covered by Section 19 of the Code of Civil Procedure because the suit was filed for recovering compensation for the wrong done to the person. The Government Pleader submitted that the cause of action had arisen in Kerala State where the first operation was performed. Further, all the defendants were from Kerala. Considering both the prongs of Section 19 of the Code of Civil Procedure only the Civil Court situated in Kerala would have the jurisdiction to try this suit. The Government Pleader submitted that there was a vast difference between the cause and the result. In his submission, the entire cause of action had arisen within the jurisdiction of the Kerala State since the negligent operation was done in Kerala. The two ailing children were bom, respectively in 1974 and 1978. The allegation of negligence relate to the operation done on 20-4-1972. The consequences are, therefore, delayed and therefore the Civil Court at Baroda could have no jurisdiction under Section 19 of the Code of Civil Procedure. The Government Pleader submitted that Section 20 of the Code of Civil Procedure would have no operation at all since it is subject to Section 19 which is the only section attracted under the facts and circumstances of the case. Section 19 of the Code of Civil Procedure is a specific section dealing with the suits for compensation for the wrong done to person or moveable property and therefore Section 20 of the Code of Civil Procedure could not be invoked. The Government Pleader submitted that the entire cause of action had arisen within the jurisdiction of the Kerala Court and there was no question of cause of action arising 'wholly or in part' in Baroda. He submitted that what the petitioner had experienced in Baroda was merely the result and not the cause. The settled legal position in his submission is that the 'wrong' means a legal wrong which consequently is an actionable wrong. The Government Pleader submitted that Section 20 of the Code of Civil Procedure under these circumstances would not apply as it was expressly made 'subject to the limitations aforesaid'.
12. The trial judge having heard both the sides took the view that he had no jurisdiction to try the suit. He observed that the entire battle of the plaintiff is around the delivery-operation on 20-4-1972 and therefore the real cause of action arose in Kerala State where the respondent No. 1 (defendant No. 1) carried out surgery which resulted in the alleged evil consequences. He also expressed the view that 'it is clear that the cause of action has arisen entirely within the jurisdiction of the Civil Court in the Kerala State and this Court cannot be said to have any jurisdiction under Section 19 to try the suit. It is a settled law that Court at the place where the cause of action does not arise wholly or in part cannot assume a jurisdiction. I am satisfied that the suit is governed under Section 19 of the C.P. Code so far as the question of jurisdiction is concerned and considering the joint effect of Section 19 as well as Section 20, I find that this Court has no jurisdiction to entertain the suit'.
13. The petitioner is aggrieved by the aforesaid order of the trial Judge. He states that if the hazards of the subsequent pregnancies were not suppressed, he could have undergone vasectomy to prevent birth of such sick children. The entire carelessness which was shown to his wife was due to a sense of enmity and revenge which the respondent No. 2 and respondent No. 3 were nursing against the petitioner and his wife. The father of petitioner's wife died only when she was six months old and her mother settled down with her second husband in Madras leaving the guardianship of petitioner's wife to the respondent No. 3 who happens to be her maternal uncle. The petitioner has also an apprehension against his mother-in-law who is provoking the petitioner's wife 'for the purpose of squeezing out a desertion from petitioner's side so as to entitle his wife to alimony'. The petitioner apprehends that the entire careless manhandling of the petitioner's wife at the time of her first delivery was motivated by the abovestated relatives. The petitioner has elaborately analysed the whole situation to show that the ailments of his two children are direct consequence of the negligent operation on his wife.
14. I may state at once that in the present Civil Revision Application, I am not concerned with the question as to whether the suit of the petitioner-plaintiff is time-barred or not; whether the aliments of the two children are direct consequences of the first operation; whether the first operation was in fact negligently carried out or not; the question with which I am concerned is the one about the jurisdiction of the Civil Court at Baroda to entertain and try the suit. I have advisedly, therefore, refrained from discussing here the petitioner's submissions whereby he has endeavoured to show the negligence of the concerned Medical Officer at the time of the first operation and that there is a nexus between the negligent operation and the evil consequences suffered by the two children.
15. The petitioner submitted before me that the case of The State of Maharashtra v. Sarvodaya Industries a registered partnership doing business of Poha at Akola : AIR1975Bom197 is a relevant judgment and on the perusal of the same I find that the petitioner is quite right. The only question involved in that case was whether a preliminary issue raised at the request of the applicant-defendant, the State, that the Akola Court had no territorial jurisdiction to try the suit filed by the non-applicant-plaintiff was correctly decided. The facts of that case may in passing be noted. They are as under:
16. The plaintiff had made an allegation that it was carrying on a business of manufacturing Poha from Dhan in Akola District. For that purpose, they had to import raw materials. They had entered into an agreement with M/s. Ghule Brothers of Gondia for purchase of Poha in November-December, 1964. The Collector, Akola, had given them licence to import the necessary Dhan. It was the further grievance that their import for the purpose of manufacture of Poha so arranged was affected by an action taken by the defendant No. 2 mala fide and without legal authority, who stopped its movement. Because of that, the plaintiff complained that their business in Akola was affected and they suffered losses and that was the basis for claiming damages. Defendant No. 2 was said to have acted on behalf or under the authority of defendant No. 1. The plaintiff gave details about the loss which they had suffered (at Akola) on account of withholding the raw materials and keeping the factory idle. The plaintiffs case was that they suffered damage or loss because of the illegal action of the defendant Nos. 1 and 2 together, particularly of defendant No. 2 acting for defendant No. 1. The case clearly was based on the cause of action having arisen within the jurisdiction of Akola Court, the trial Court answered the issue of jurisdiction by holding that the cause of action for the purpose of damages would arise on the proof of loss, and the place where the loss is suffered, i.e. the place of business which is affected would offer sufficient nexus for upholding the jurisdiction.
17. The aforesaid order was questioned in revision. It was submitted that the suit was governed by Section 19 of the Code of Civil Procedure. The State being a party could not be treated as residing within the limits of Akola Court and the only remaining relevant factor was the place where the wrong complained of was done to the person or business of the plaintiff. It was submitted that only the Bhandara Court had the jurisdiction for stoppage allegedly occurred within its limits.
18. Masolkar, J. having considered the rival views which were put for his consideration, observed as under:
Compensation clearly posits an injury resulting in loss and damage. Mere injury or wrong without anything more would not suffice to sustain the claim for compensation. It is clear that the phrase 'wrong done' is not used in any narrow sense but has to be understood in all its amplitude so as to afford forum and necessary relief. That clearly takes in both cause and effect. Injury or actual wrong may occur at place A but its effect may be felt at places other than 'A' and may effect place 'B' or 'C' Act or actions taking place at a given time may still give rise to results effecting persons or property at places quite different and at all these places and for all those effects, cause would arise seeking compensation. Without resultant loss or its proof restitutive justice may not afford any relief not there could be any remedy in vacuum. Thus the phraseology used by Section 19 about 'the wrong done' would clearly take in not only the initial action complained of but its resultant effect.
19. I respectfully agree with the line of reasoning of Masolkar, in the aforesaid ruling and follow it for the purpose of the present Civil Revision Application before me. I fail to understand why was this judgment not properly appreciated, though cited before him, by the trial Judge.
20. Thus, it is a correct proposition that the damage resulting from the tort will also furnish a cause of action : 13 Bengal L. R. page 91 (at page 99). It is in accoradance with the sound principle that in a suit in respect of a tort, the plaintiff has to prove both a tortious act and a consequent injury or damage. The damage or injury is, therefore, a material fact which it is necessary for the plaintiff to prove in order to entitle him to succeed in the suit. This proposition is also supported by A.I.R. 1961 Mysore page 188 (190, 191) where the defendant instituted criminal proceedings at 'D' against the plaintiff who was residing at 'C' and the plaintiff suffered damage at 'C'. The cause of action for a suit for damages for malicious prosecution was held to rise in part at 'C'.
21. The trial Judge was in error, therefore, when he held that he has no jurisdiction to try the suit as the entire cause of action had risen in the State of Kerala. 'Cause of action' means every fact which, if traversed, it would be necessary for the plaintiff to prove a order to support his right to the judgment of the Court. It is not limited to the actual infringement of the right sued on, but includes all the material facts on which it is founded. It may not include every piece of evidence which is necessary to prove each fact, but every fact which it is necessary to be proved to entitle the plaintiff to a decree would provide 'a cause of action'. This meaning of the term 'cause of action' is a legally settled position which appears to have been overlooked by the trial Judge.
22. The result in consequence, therefore, is that the impugned order of the trial Court is hereby quashed and set aside and it is held that the Court of the 2nd Joint Civil Judge (Sr. Dn.) at Baroda has the jurisdiction to try the suit under Section 19 of the Code of Civil Procedure. The trial Court is, therefore, directed to re-admit the suit if the plaint is already returned to the plaintiff, and after properly registering it, to proceed with the trial of the suit according to law. Rule is made absolute accordingly with no order as to costs.
Since this is an old suit, the trial Court is directed to give it a priority over other suits and to dispose it of expeditiously.