B.N. Kirpal, J.—The appellants are aggrieved by the judgment of the Aurangabad Bench of the Bombay High Court which has reversed a decree for Rs. 36,000/- passed by the Civil Judge, Second Division, Aurangabad, as damages on account of the death of one Chandrikabai who was the wife of appellant No. 1 and the mother of appellant Nos. 2 to 5, after she had undergone a sterilisation operation at the Civil Hospital, Aurangabad.

2. The case of the appellants before the Trial Court was that the deceased Chandrikabai was admitted in the Civil Hospital, Aurangabad on 10th July, 1963, for delivery of a child. This maternity hospital is attached to the Medical College at Aurangabad and respondent No. 2 was working in the department of Obstetrics and Gynaecology as a doctor and it is she who attended on Chandrikabai. Respondent No. 3 was the Medical Officer of the said hospital while respondent No. 4 was the Dean of Medical College, Aurangabad. Chandrikabai delivered a male child on 10th July, 1963. As she had got herself admitted to this hospital with a view to undergo a sterilisation operation after the delivery, the said operation was performed by respondent No. 2 on 13th July, 1963. Soon thereafter Chandrikabai developed high fever and also had acute pain which was abnormal after such a simple operation. Her condition deteriorated further and on 15th July, 1963 appellant No. 1 approached respondent No. 3 and one Dr. Divan, PW-2, who was a well known surgeon and was attached to the hospital, but was not directly connected with the Gynaecological department. At the insistence of appellant No. 1 Dr. Divan examined Chandrikabai on 15th July, 1963, and seeing her condition, he is alleged to have suggested that the sterilisation operation which had been performed should be re-opened. This suggestion was not acted upon by respondent Nos. 2 and 3 and the condition of Chandrikabai became very serious. On 19th July, 1963, Dr. Divan, on being called once again, reopened the wound of the earlier operation in order to ascertain the true cause of the seriousness of the ailment and to find out the cause of the worsening condition of Chandrikabai. According to the appellants, respondent Nos. 2 and 3 assisted Dr. Divan in this operation. Dr. Divan, as a result of the second operation, found that a mop (towel) had been left inside the body of Chandrikabai when sterilisation operation was performed on her. It was found that there was collection of pus and the same was drained out by Dr. Divan. Thereafter, the abdomen was closed and the second operation completed. Even, thereafter the condition of Chandrikabai did not improve and ultimately she expired on 24th July, 1963.

3. Alleging that Chandrikabai was working as a teacher in a Government School and her salary augmented the total income of the family, it was pleaded that the death of Chandrikabai was caused due to the negligence of respondent No. 2 who had performed the sterilisation operation on 13th July, 1963, as well as the irresponsible behaviour of respondent No. 3. The appellants also alleged that the hospital lacked adequate medical aid and proper care and there was gross dereliction of duty on the part of the officers of the Government Civil Hospital which directly resulted in the death of Chandrikabai and, therefore, the appellants were entitled to recover damages from the Government of Maharashtra (respondent No. 1) as well as respondent Nos. 2 to 4. The appellants claimed total damages of Rs. 1,75,000/-. It may here be noticed that the suit was commenced with the appellants’ filing application for permission to sue in forma pauperis and, on the same being allowed, the same was converted to Special Civil Suit No. 5 of 1965.

4. Respondents 1 and 4 filed a common written statement contending that the appellants’ suit was false. It was denied that there was any negligence in the performance of the sterilisation operation on 13th July, 1963, at the hands of respondent No. 2. In fact the c