IN THE COURT OF MR
IN THE COURT OF MR. ZAFAR IQBAL SIAL, CIVIL JUDGE, LAHORE.
In/Re:
Ms. Shabnum Safdar
Versus
Dr. Muhammad Tahir
WRITTEN ARGUMENTS ON BEHALF OF THE PLAINTIFF ON THE APPLICATIONS
UNDER ORDER VII, RULE 11 CPC FILED ON BEHALF OF THE DEFENDANT FOR
REJECTION OF PLAINT.
Respectfully Sheweth:
1. That the above titled suit is pending adjudication before
this Honble Court, wherein the next date of hearing is
14/02/2006.
2. That the defendant committed serious negligence, breach of
contract and caused grave and serious injury and damage to the
plaintiff, while treating her for Ultra Sonic Liposuction which is
surgical operation for removal of excess fat from the body, for
which on 02/04/2004 she has filed the titled suit for the recovery
of damages of Rs. 10,000,000/- (Ten Million) on account of
negligence, breach of contract, mental torture, physical damage,
monetary loss etc.
3. That the summons were issued to the defendant but the
defendant despite knowledge only just to delay the matter did not
appear before the court and he entered appearance in court on
29/07/2004 after publication in the newspaper and even till to date
has failed to submit written statement.
4. That the defendant filed two applications under Order VII,
Rule 11 CPC before this Honble Court which were replied by the
plaintiff and now the case is pending for arguments on these
application for the last so many date of hearings.
5. That the grounds taken by the defendant in his applications
for rejection of plaint are that the suit is barred by time under
Article 22 of the Limitation Act, 1908; is not maintainable; the
plaintiff has no cause of action; the suit amounts to double
jeopardy, misjoinder and non-joinder of necessary parties.
In this regard, so far legal objection of the defendant that
suit is barred by time under Article 22 of the Limitation Act, 1908
is concerned, it is submitted that as mentioned earlier, the suit
of the Plaintiff is not exclusively filed for compensation of the
injuries actually sustained by the Plaintiff in the hands of the
Defendant, but the Plaintiff is also claiming relief regarding
breach of contract, mental torture and monetary loss etc., which
she suffered due to the gross negligence and incompetency of the
Defendant, therefore as held in PLD 1970 Lahore 298 case titled
Abdul Majid Butt Vs. United Chemicals Limited that Article 22
implies to commission of an overt act and would not cover case of
injuries resulting on account of misfeasance- injury suffered by a
person as a result of culpable negligence would be governed by the
Article 36 and not by Article 22 of the Limitation Act, 1908 for
which limitation is two years, therefore the suit of the Plaintiff
is absolutely within limitation and the plaint cannot be rejected
being barred by time.
It is further submitted that it is settled principle of superior
courts that if the cause of action disclosed from the plaint can
fairly fall under different articles of the first schedule of the
Limitation Act, the court would construe any ambiguity in these
articles in favour of the plaintiff. (1980 SCMR 485=PLJ 1980 SC
386, 1970 SCMR 77 + PLJ 1981 Lahore 71)So far the objection
regarding cause of action is concerned, there was a contract
between the parties regarding Ultra Sonic Liposuction Surgery by
the Defendant and due to his gross negligence and being
non-qualified and unskilled, the Plaintiff has suffered physical
damage, mental torture and monetary loss in the hands of the
defendant, therefore the Plaintiff has a valid cause of action to
sue the Defendant which the plaintiff has filed against the
defendant after serving a legal notice on him, hence this ground of
the Defendant has no force in the eye of law.
So far the ground of the defendant regarding double jeopardy is
concerned, the plaintiff has filed a complainant against the
defendant before the Pakistan Medical and Dental Council (PMDC)
i.e. the licensing and controlling authority relating to the field
of medical and dentistry, on the ground that the defendant do not
seems to be a qualified person in the field of plastic surgery but
is representing himself and doing practice in this field as well
therefore, a suitable action should be taken against him for
committing misconduct. Therefore, such proceedings before the PMDC
having no bearing on the titled suit which can be proceeded on its
merits.
PRAYER
In view of the above made submissions, it is respectfully prayed
that applications may kindly be dismissed and the right of the
defendant to file the written statement may kindly be closed for
not being filed within the statutory period of 30 days as
prescribed by the Code of Civil Procedure.
PLAINTIFF
Through
Zahid Nawaz Cheema
Advocate High Court
Mandviwalla & Zafar
Zafar Chambers,
7/B-1, Aziz Avenue,
Canal Bank, Gulberg V,
Lahore.
