SASEENDRAN C G Vs. MATHEW EXAL

JUDGEMENT

(1.) This appeal is against an order dismissing an application under Order IX Rule 9 of the Code of Civil Procedure. The plaintiff in a suit for damages is the appellant. He instituted the suit in 1999 and thereafter, went abroad in pursuit of employment as a driver. He constituted his wife Komalam as his power of attorney holder to conduct the suit on his behalf. The suit was listed for evidence on 22.8.2003. Plaintiff's wife did not appear. On that day itself, plaintiff's counsel filed an application seeking ad- journment and to have the case removed from the special list on the plea that the plaintiff's wife was unwell and under treatment. That application was dismissed on the next day. As a consequence, the suit was dismissed for default. The application for restoration was filed within time. That was supported by a medical certificate issued by the Assistant Surgeon attached to a Public Health Centre. That certificate, going by the impugned order, says that the plaintiff's wife was suffering from some situation in connection with her sciatic nerve. We say this because, the learned Judge has quoted the certificate to state that the petitioner suffers from acute "lambargo sciatic sundrome" and was advised 15 days' bed rest from 20.8.2003. We conceive that the problem was lumbar sciatic syndrome, which obviously, would have rendered the patient incapable of moving, except in pain. No objections were filed opposing the application for restoration. It appears from the impugned order that a counsel appearing for the defendants had mentioned at hearing that the petitioner was not under treatment of any doctor and the so- called medical certificate was concocted for the purpose of the application. It is true that the plaintiff's wife, who was his power of attorney holder, did not mount the box to tender evidence in support of the medical certificate. The fact of the matter remains that she died and now the plaintiff is represented before us through his son, who is now his power of attorney holder. The court below, in our view, had misdirected itself in deciding the application, which was not even opposed by filing any written objection. It has to be remembered that the application seeking restoration was filed within the time prescribed by law and it was not objected to in writing while the application was supported by the affidavit of the plaintiff's wife. Under such circumstances, this appeal is entitled to succeed.

(2.) With indefatigable modesty and recluseness, we think that it would be inappropriate if we do not take stock of, and politely state our views about, the manner in which the learned trial Judge has criticized the medical certificate, the doctor and the medical profession in general.

(3.) It is stated in the impugned order that "now a days it is the nature of the parties to obtain medical certificate from any Doctor as he likes only on payment of some money to the Doctor". It is also stated in the impugned order that "the issuance of medical certificate now a days became a procedure only for the purpose of getting some fees or amount and not on the basis of a genuine document".