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1997 DIGILAW 1415 (MAD)

Palaiammal, Minor Through Mother v. Pichiyan

1997-12-02

S.JAGADEESAN

body1997
Judgment : S. JAGADEESAN, J. 1. - By consent of both the counsel the Civil Revision Petition itself is taken up for final disposal since notice of motion was ordered. 2. 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 L. 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. 3. 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 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 illness, 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 Anr. v. Jothi Anandan, to contend that the Doctor need not be examined especially. when the petitioner had gone into the Box. 4. 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 ithe 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. 5. I considered the contention of both the counsels. 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 anr. v. Jothi Anandan (supra), this Court has held as follows:"6. While the considering the rival submission regarding the abovesaid one reason given by the learned Trial Judge that the Doctors who have given the abovesaid certificates have not been examined. In the judgment reported in T. Lakshmiammal and anr. v. Jothi Anandan (supra), this Court has held as follows:"6. While the considering the rival submission 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 mothers 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 air 1935 Madras 659 (supra) may not have Strict application to the facts of the present case. Relevant observation o ( 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. Krishnammal 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. 6. 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. 7. 6. 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. 7. 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 art inpatient especially when there is some doubt with regard to the nature of the illness in relation of 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 that pinch. and co-operate for the early disposal of the suit. Therefore, the order of the court below is set aside and 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 falling which the Civil Revision Petition shall stand dismissed. The petitioner is not entitled for any extension of time for payment of costs. Petition allowed.