Negligence cannot be established in cases of failed sterilization operations if the plaintiffs fail to follow medical advice post-procedure.

JUDGMENT :

Nidhi Gupta, J.

Present appeals have been filed by the State/ defendants No.1 to 3, against the judgment and decree dated 15.06.2001 passed by learned Additional District Judge, Kurukshetra whereby Civil Appeal No.349 of 1998 filed by plaintiff Ram Singh, and Civil Appeal No.78 of 2001 filed by plaintiff Sharda Rani against the dismissal of their suit by the ld. trial Court vide common judgment and decree dated 11.09.1997, have been allowed. Both the appeals are being disposed of by this common order as both appeals emanate from same incident; facts & issues involved in both the appeals are identical; as also these appeals are against common impugned judgment and decree dated 15.06.2001 whereby the appeals filed by the respondents/plaintiffs were allowed by the learned Additional District Judge.

2. The parties shall hereinafter be referred to as per their status before the learned trial Court i.e. the appellants as the 'defendants' and the respondent as 'the plaintiff'. For the sake of convenience, the facts are being drawn from RSA-3889-2001 titled as 'The State of Haryana & Others Vs. Ram Singh & Another'.

3. The plaintiffs Ram Singh and Sharda Rani are husband and wife. They had filed two separate suits being Civil Suit No.53 dated 06.05.1993 titled as 'Ram Singh Vs. The State of Haryana & Others'; and Civil Suit No.356 dated 24.05.1990 titled as 'Smt. Sharda Rani Vs. State of Haryana & Others' for recovery of Rs.2 lakh from the defendant State. Both the suits were consolidated by the learned trial court vide order dated 03.08.1992. It was the pleaded case of the plaintiffs that the marriage between the plaintiffs had taken place in the year 1977. By the year 1986, 4 children were born to the plaintiffs. Accordingly, the plaintiffs decided to go in for family planning operation. On 09.08.1986, plaintiff Ram Singh went to Primary Health Centre at Pehowa and got vasectomy operation done by defendant No.4 Dr. R.K. Goyal. A certificate bearing No.65/1 dated 09.08.1986 was issued to this effect. The plaintiffs were cautioned to abstain from intercourse for three months. It was the case of the plaintiffs that they had exercised due care and caution; and plaintiff had cohabited with his wife only after three months. However, Sharda Rani got pregnant. Then he went to the Civil Hospital and got himself checked and he was informed that the vasectomy operation had failed. Accordingly, they gave birth to their 5th child/4th daughter who was unwanted and unwelcome addition to their family. It was pleaded that the plaintiffs had undergone mental shock as well as immense physical torture due to the negligent act of the defendants. Accordingly, damages of Rs.2 lakh were sought.

4. The suit was resisted by the defendants by filing written statement and taking various objections, both formal and on merits.

5. On the basis of pleadings of the parties, following issues were framed by the learned trial Court vide order dated 26.03.1990:-

'1) Whether the plaintiff is entitled to decree for mandatory injunction for recovery of damages as prayed in the plaint? OPP

2) Whether the suit is not maintainable in the present form? OPD

3) Whether the suit is bad for mis-joinder and non-joinder of necessary parties? OPD

4) Whether the plaintiff has no, cause of action to file and maintain the present suit? OPD

5) Whether the suit is not properly valued for the purposes of court fee? OPD

6) Whether the plaintiff has not served notice under section 80 CPC? OPD

7) Relief"

6. On the basis of evidence led by the parties, the learned trial Court had dismissed the suit of the plaintiffs vide