Palaiammal rep. by his mother and natural guardian Management vs Pichiyan

By consent of both the counsel, the Civil Revision Petition itself is taken up for final disposal, since notice of motion was ordered.

The petitioner is the plaintiff in O.S.No.595 of 1993 on the file of the District Munsif Court, Pattukkottai. The said suit was dismissed for default

on 6.6.1995. The petitioner filed an application, I.A.No. 891 of 1995 for condoning the delay of 15 days in filing the application for restoration of

the suit. The said application was dismissed by the trial Court. As against the said order, the present revision has been filed.

It is the contention of the counsel for the petitioner that the petitioner could not attend the Court on the date of the hearing. Further she was

admitted in the Hospital for heart- attack and she was treated as an in-patient for twenty days and the Doctor has advised her complete bed rest

for another twenty days and hence she could not meet her counsel and after she recovered from the ill-ness, she filed the application. The trial

Court has dismissed the application on the ground that the Doctor has not been examined to prove the Medical Certificate. He also relied upon the

Judgment reported in T. Lakshmiammal And Another v. Jothi Anandan, 1997 (1) L.W. 313 to contend that the Doctor need not be examined

especially when the petitioner had gone into the Box.

On the contrary, the counsel for the respondent contended that even on earlier two occasions, the suit was adjourned on the ground that the

petitioner was not ready. When the petitioner was admitted on 4.6.1995 in the Hospital, she could have sent word to her counsel for taking a short

adjournment. There is no explanation on her part for not sending communication to the Counsel.

I considered the contention of both the counsel. It is true that the lower Court has dismissed the application on the ground that the Doctor has

not been examined. In the Judgment reported in T. Lakshmiammal And Another v. Jothi Anandan1997 (1) L.W. 313, this Court has held as

follows:-

While considering the rival submissions regarding the abovesaid one reason given by the learned trial Judge that the doctors who have given the

abovesaid certificates have not been examined. I must say that even though they have not been examined, P.W.1, the fourth defendant, has entered

into the witness box and spoke about his and his mother''s illness and the medical certificates, given to him in relation to his illness and in relation to

the illness of his mother. Admittedly, there is no cross-examination of P.W.1 suggesting that those medical certificates are bogus or not genuine. In

the circumstances, those certificates could be taken as proved and the decision reported in Sarada Vs. Nhattiyala Devaki, , may not have strict

application to the facts of the present case. Relevant observation of the Division Bench of which emphasis was laid, runs as follows:-

There is nothing in the Evidence Act, or outside it, which makes a certificate given by a medical practitioner by itself evidence at all"".

But it does not appear that in the abovesaid decision anybody entered the witness box to prove the medical certificate. But in the present case, as

already mentioned, P.W.1 has entered the witness box and proved those certificates. On the present case is not a case where a medical certificate

alone is produced without any further proof. The following observation in Srinivasalu v. Krishnammal100 L.W. 666 was also pressed into service.

The present order allowing the petition for condonation of delay in filing the petition for setting aside the ex parte decree appears to be obviously

the result of a very liberal attitude and casual manner in which ex parte decree are being set aside"".

But every case turned on its facts and I do not think that the abovesaid general observation would go to advance the present contention of the

learned counsel for the respondent"".

On the above principle, in this case also, the petitioner had been examined and the Medical Certificate has been marked through her. There is no

suggestion on the part of the respondent that the Medical Certificate produced by the petitioner is not genuine and as such the medical certificate

can be relied upon.

However, the conduct of the petitioner is to be taken into consideration. The petitioner, on earlier occasions, sought adjournments twice. She

was admitted in the Hospital from 4.6.1995 to 23.6.1995 for complete bed rest. It is not known as to how the Doctor has given the Certificate at

the time of her discharge that she was advised complete bed rest for another twenty days. If that be so, the petitioner could not have been

discharged from the Hospital itself. I have my own doubt that the Certificate might have been a procured one. In the absence of the Hospital

records, it cannot be taken for granted that the petitioner was admitted in the Hospital as an inpatient especially when there is some doubt with

regard to the nature of the illness in relation to the certificate issued by the Doctor. Hence, I am of the view that the petitioner should be put on

terms and given an opportunity so that she may feel the pinch and co-operate for the early disposal of the suit. Therefore, the order of the Court

below is set aside and the Civil Revision Petition is allowed on condition that the petitioner shall pay a sum of Rs. 1,000 by way of costs to the

respondent herein within two weeks from today, failing which the Civil Revision Petition shall stand dismissed. The petitioner is not entitled for any

extension of time for payment of costs.