1. This is a revision petition against the order of the learned Subordinate Judge, Chingleput, in I. A. No. 246 of 1959 in O. S. No. 71 of 1957. The defendant is the petitioner.
2. On the plaintiff's application under Order XXVI, Rule 1 of the Civil Procedure Code, the lower court permitted one Panchanatha Mudaliar to be examined as a witness on commission, It is common ground that Panchanatha Mudaliar is a material witness. The witness was sought to be examined on commission on the ground that he was very weak and infirm and confined to bed and that it was physically impossible for him to come to court or be brought to court. The affidavit in support of the application was accompanied by a medical certificate dated 29-7-1959, granted by Dr. P. T. Srinivasan, Honorary Assistant Surgeon, Government General Hospital, Madras.
The certificate stated that Panchanatha Mudaliar was suffering from an attack of acute fever with hyperlipens and palpitation of the heart and that as he was to take complete rest, he was not in a fit condition to travel long distance. The defendant denied that Panchanatha Mudaliar was ill or sick, infirm or weak or confined to bed and opposed the application for examination on commission. After several adjournments of the petition for commission, the learned Subordinate Judge, after hearing the parties, felt that from the affidavit and counter affidavit he was not in a position to find out the truth or otherwise of the averment as to the physical condition of Panchanatha Mudaliar.
He, therefore, directed in his order, dated 3-9-1959 that Panchauatha Mudaliar should be examined by the First Physician in the General Hospital and a certificate obtained as to whether the witness was in a position to come and give evidence in Court.
On the plaintiff reporting to the lower court that the Doctor was not willing to examine the witness unless there was a requisition from the court, the lower court issued a requisition through the Dean of the Government General Hospital, Madras for medical report. Dr. U. Ramachandra, surgeon (IV District) Madras, sent his medical report dated 26-10-1959, in which the doctor said that Panchanatha Mudaliar had been, suffering from diarrhoea for the past ten years, that since six months he had been losing weight considerably, that he looked very pale, weak and emaciated and was not in a fit condition to travel, that his general health was poor and that any exertion might result in strain to the heart.
On 27-11-1959, the learned Subordinate Judge accepted the medical report and finding on that basis that Panchanalha Mudaliar was not in a fit condition to come and give evidence before the court, ordered that he be examined on commission. In so doing, the framed Subordinate Judge overruled the defendant's objection that the medical report was inadmissible in evidence and that it could not, therefore, furnish the basis of a finding that the witness was ill and infirm and was unable to attend court.
3. Mr. V. Vedantachari, the learned counsel for the petitioner, before me, reiterated the contention based upon the inadmissibility of the medical report and contended that the medical report was no better than a statement not even on oath, of a living person and was worse than hearsay evidence and that the lower Court acted improperly in relying on the medical report and directing the witness to be examined on commission. I think there is force in this contention.
4. There is nothing in the Evidence Act which makes a doctor's certificate relating to the illness of a witness by itself evidence at all. It is not a sworn statement and if it is to be relied on as evidence, I think it must be proved in the normal way by the testimony of the person giving it who will stand cross-examination. The statement of a doctor in his medical certificate or report, who is not him self called as a witness, is in the nature of hearsay evidence and as such it is not evidence of the truth of what is contained therein,
5. In Sris Chandra Nandy v. Annapurna, : AIR1950Cal173 , Harries and Sarkar JJ. held that a medical certificate tendered in support of an application for the issue of a commission for the examination of a witness on the ground of illness was inadmissible in evidence being the worst form of hearsay evidence and that the doctor himself should be called in evidence. Sri R. Gopalaswami Aiyangar, appearing for the respondent, sought to distinguish this case on the ground that there the medical certificate was produced annexed to the affidavit filed in support of the petition for commission evidence, whereas, in the present case, the Court itself called for the medical certificate, to enable it to come to decision on the question whether the witness was ill or infirm and was unable to come to court.
I do not think that circumstance makes any difference to the principle, that evidence in the nature of hearsay is inadmissible. In Perumal Mudaliar v. South Indian Rly. Co., AIR 1937 Mad 407, Beasley C. J.. observed that the evidence of experts must be given in the ordinary way & that subject to certain exceptions--those exceptions being amongst others the certificates of the Imperial Serologist touching the matter of blood stains & of the Chemical Examiner, which are made admissible in evidence by themselves -- it was obvious that the opinion or an expert must be given orally and that a mere report or certificate by him could not possibly be evidence. In my view the medical report relied on by the learned Subordinate Judge was by itself no evidence of the physical condition of the witness.
6. But the fact that the learned Subordinate Judge took a wrong view of the non-admissibility of the medical report as evidence by itself will not, in my opinion, be sufficient to enable this court sitting in revision to interfere with his order. At best it amounted to nothing more than an erroneous decision on a question of law in which no question of jurisdiction was involved. I think it is settled that where a court has jurisdiction to determine a question and determines that question, it cannot be said that it has acted illegally or with material irregularity because it came to an erroneous decision on a question of fact or even of law. It was evidently in that view it was held by Walsh J. in Ritmalinga v. Sankaranarayana : AIR1929Mad192 , that the High Court could not interfere in revision where an order was passed for commission under Order XXVI rule 4 of the Civil Procedure Code on the ground that the witness was too ill to go to court, and the order was based on a medical certificate which clearly implied that the witness was suffering from illness and infirmity and was unable to attend court. It was true in that case the question of admissibility of the medical certificate was not raised but that makes no difference. There was here no error of jurisdiction in the assumption or exercise of it by the lower court because it decided the question of admissibility erroneously.
7. The petition fails and is dismissed with costs.