Per F.M. Reis, J. - Heard Shri M.B.D. Costa, learned Senior Counsel appearing for the Petitioner and Shri P.A. Kholkar, learned Counsel appearing for the Respondent No.1.

2. Both the learned Counsel appearing for the respective parties have pointed out that taking note of the fact that the points involved in both the Revisions are common, the above Petitions can be disposed of by a common Judgment.

3. The above Petition challenges an Order passed by the learned Addl. District Judge. North Goa, at Panaji, both dated 03.09.2009, whereby applications filed by the Petitioner in both the above Petition under Order 7, Rule 11 of the Civil Procedure Code, came to be dismissed.

4. Briefly, the facts of the case are that one Minguelina Duarte was admitted in Dr. Talaulikar Nursing Home for Laparoscopy Procedure under general anesthesia on 02.02.2000. The said patient was thereafter shifted to the Goa Medical College. Bambolim, in hypoxia state and after a period of fifty days, the patient was in a vegetative state supported by life surviving supports died on 22.03.2000. A post mortem report was prepared by Dr. Sapeco and Dr. Edmund. In a letter to Sub-Divisional Magistrate dated 03.04.2000, the Petitioner herein, who is the defendant No. 4 in the suit and then Dean of the Goa Medical College at the relevant time was asked to constitute a Medical Board to prepare a medical report and, as such, the Medical Board gave the opinion on 27.04.2004, inter alia, stating that there was medical negligence on the part of the Petitioner. Thereafter, a criminal case No. 42/2001 was filed by the State against both the Respondents No.1 herein for offences punishable under Section 304-A of the Indian Penal Code. In April, 2001, it appears that the Government directed to withdraw the prosecution. The learned Judicial Magistrate allowed the withdrawal on 13.10.2001.

5. The Respondent No. 1 in both the Petitions, filed suits before the learned Trial Court claiming damages against the said Dr. Sapeco and Dr. Edmund. The Petitioner approached this Court by filing a Criminal Revision Petition No. 11/2003 which was allowed and the learned Magistrate was directed to proceed with the trial of the criminal case. The Respondent No.1 in both the Petitions were acquitted from the charge levelled against them by Judgment dated 29.06.2007. The Petitioner preferred a criminal revision application before this Court which came to be dismissed on 13.03.2008. The Special Leave Petition filed before the Hon'ble Supreme Court was apparently withdrawn by the Petitioner. Subsequently, in the year 2008, the Respondent No.1 in both the above Petitions, filed Civil Suits against the Petitioners and others claiming damages on the ground of malicious prosecution and defamation. In the said suit, the Petitioner filed an application under Order 7 Rule 11 of the Civil Procedure Code on the ground that the plaint does not disclose any cause of action. The learned Trial Judge by the impugned Order dated 03.09.2009, dismissed the application filed by the Petitioner. Being aggrieved by the said Order, the Petitioner preferred the above Petition.

6. Shri M.B.D. Costa, learned Senior Counsel appearing for the Petitioner, has pointed out that on the bare perusal of the plaint, there is no cause of action disclosed by the Respondent No.1 to sue the Petitioner on the ground of malicious prosecution and defamation as, according to him, such suit is not maintainable until and unless a criminal case is filed for malicious prosecution against the Petitioner. Learned Senior Counsel further pointed out that unless and until the Petitioner is convicted for malicious prosecution by the criminal Court, the question of filing any Civil Suit to claim damages would not arise. Learned Senior Counsel has further taken me through the provisions of Article 2389 of the Portuguese Civil Code and pointed out that the said provisions specifically contemplates that such suit can be filed only after the party