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Kandaswami Gounder Vs. T. Subramania Gounder - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai High Court
Decided On
Reported in(1982)1MLJ193
AppellantKandaswami Gounder
RespondentT. Subramania Gounder
Cases ReferredSarada v. Devak
Excerpt:
- - in my view, the observation of the bench as early 1922 must hold good in the interests of justice......plaintiff in the suit has filed this civil revision petition.2. it is submitted by mr. k. sukumar, learned counsel appearing for the petitioner that the non-examination of the doctor who issued the certificate regarding the illness of the defendant is fatal to the case and as such the-appeal c.m.a. no. 4 of 1980 ought to have been dismissed. he also brought to my notice the decision in sarada v. devaki : air1935mad659 , wherein a bench of this court observed as follows:some judges from their experience of the medical practitioners in the locality in which the court is situate may feel inclined, having formed a satisfactory opinion about medical practitioners there, to accept their medical certificate. that is a matter entirely for them. other judges may proceed' on more cautions and.....
Judgment:
ORDER

P.R. Gokulakrishnan, O.C.J.

1. The plaintiff in O.S. No. 147 of 1977 on the file of the Court of the District Munsif, Udumalpet, is the petitioner-herein. He filed the suit for permanent and mandatory injunction against the defendant. The defendant on 4th February, 1978, filed the written statement. On 14th March, 1979, the suit was posted in the list for final hearing. On that day, it was adjourned to 16th March, 1979. On 16th March, 1979, the counsel for the defendant was present, but the defendant was absent. Hence, the counsel for the defendant reported no instruction. On 17th March, 1979, the Court passed an ex parte decree, against the defendant in the suit. On 24th March, 1979, the respondent herein filed an application under Order 9, Rule 13, Civil Procedure Code, to set aside the ex parte order passed against him. The trial Court dismissed that petition on the ground that the doctor who gave the certificate regarding the illness of the defendant, has not been examined. Against the said order of dismissal, he preferred an appeal C.M.A. No. 4 of 1980 to the Court of the Subordinate Judge, Udumalpet. The Subordinate Judge, after observing that simply because that the doctor who issued the certificate has not been examined, one cannot totally brush aside the certificate issued by the doctor, allowed the appeal. It is against this order, the plaintiff in the suit has filed this civil revision petition.

2. It is submitted by Mr. K. Sukumar, learned Counsel appearing for the petitioner that the non-examination of the doctor who issued the certificate regarding the illness of the defendant is fatal to the case and as such the-appeal C.M.A. No. 4 of 1980 ought to have been dismissed. He also brought to my notice the decision in Sarada v. Devaki : AIR1935Mad659 , wherein a Bench of this Court observed as follows:

Some Judges from their experience of the medical practitioners in the locality in which the Court is situate may feel inclined, having formed a satisfactory opinion about medical practitioners there, to accept their medical certificate. That is a matter entirely for them. Other Judges may proceed' on more cautions and regular lines and reject altogether a medical certificate and insist either on an examination on oath of the doctor who has given the certificate or at least an affidavit by him. In may view this is the correct procedure.

Citing this decision, the counsel appearing for the petitioner submitted that the observation' of Nainar Sundaram, J., to the effect that a-certificate issued by a Registered Medical Practitioner can be accepted by the Court as evidence of the sickness or infirmity of any person,, without calling the medical practitioner as a-witness Vide - Lakshman v. Ellammal : AIR1935Mad659 cannot be sustained.

3. Mr. Santhanagopalan, learned Counsel for the defendant brought to my notice, the decision in Arunachala Aiyar v. Subramiah (1978) 91 L.W. 486, wherein a Bench of this Court has observed as follows:

In all those cases, this universal panacea for healing all wounds, as it has been called in England will properly be applied. It is not right in cases of this kind that the man should have his case disposed of without being heard. The Courts are here so that people who have cases can have those cases heard and determined and it should never be the intention of the Court that a man should be deprived of a hearing unless there has been something equivalent to misconduct or gross negligence on his part or something which cannot be put right, as far as the other side is concerted, by making the man to blame pay for it.

The proper order in this case should have been that the case should be restored to the list and the judgment set aside on payment of all costs thrown away by the defendant, and that is the order that I propose to make.

In my view, the observation of the Bench as early 1922 must hold good in the interests of justice. The decision in Sarada v. Devak : AIR1935Mad659 , has not said that a certificate of a doctor cannot be taken as it is. On the other hand the procedure that can be safely followed in such matters is stated by the Bench without in any way rejecting the procedure of accepting the medical certificate as evidence in appropriate cases. Hence, I do not think that the medical certificate of the doctor cannot itself be an evidence to substantiate the reasonableness of | the. absence of the defendant in this case. Mr. Santhanagopalan, learned Counsel appearing for the defendant-respondent submits that the defendant has examined himself to substantiate his case to the effect that he was sick on that date and hence, he was unable to appear in person when the case was called on; 16th March, 1979. No doubt the learned Subordinate Judge has not referred to these matters in his order. If he had referred to the oral evidence of the defendant and other relevant matters in his judgment, there could not have been this difficulty in dismissing the civil revision petition. Nevertheless there are enough materials on record to come to the conclusion that the respondent was prevented by sufficient cause to appear before the Court on 16th March, 1979. Considering all these aspects of the case, I do not find any merit in this civil revision petition and as such the same is dismissed, but there will be no order as to costs.


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