MAHENDRA H SHAH Vs. GANGASARAN JAGANNATH KATIYAR

JUDGEMENT

(1.) BY impugned order dated 19/02/2009 passed below Exhibit ­ 1 in Civil Regular Appeal No.122 of 2005 by learned Additional District Judge, Kheda at Nadiad, it was directed that the defendant should adduce the evidence of Mr.P H Solanki, Civil Surgeon, General Hospital, Nadiad and Dr.Lilaben Trivedi, Professor and Head of the Department, Gynaec Department, Civil Hospital, Ahmedabad.

(2.) IT was not in dispute before the appellate Court that certified copies of two documents respectively authored by the above two doctors, which were subject matter of investigation in a criminal trial, were taken on record by the trial Court at the instance of the original defendant without their oral evidence. The suit was filed for compensation alleging negligence against the hospital in dealing with the wife of respondent No.1, causing her death. One of the question which arose in the suit was whether the wife of 1st respondent died of heartattack or because of negligence of the doctors in the hospital. The trial Court while dismissing the suit relied upon the said documents. The appellate Court, however, in exercise of powers under O.41 R.27 (1) (b) of the Code of Civil Procedure (for short CPC), directed adducing of the evidence of the above named doctors and also asked the defendants ­ petitioners herein to bear the cost.

(3.) IT was next contended that the defendants are the masters of their own case and that the appellate Court could not have compelled them to examine the witnesses which defendants did not want to.