R SOUNDARAPANDIAN Vs. SANTHANADEVAN

JUDGEMENT

(1.) THIS civil revision petition is against the order in I.A. 2763 of 1982 refusing to excuse the delay of 9 months and 20 days in filing the interlocutory application under S. 9 of the City Tenants Protection Act for the purchase of the suit land. The ground alleged for the said delay is illness of the petitioner and the medical certificate produced says that the petitioner was suffering from ?Hemiplegia Rtaid? and was under the doctor's treatment from 3-2-1980 to 15-1-1981. The suit was filed in 1977 its elf against the petitioner-tenant and the above said petition under S. 9 of the said Act is said to have been filed on 23-1-1981. (The order of the Court below says that it was filed in the year 1982. The petition is no doubt 23-1-1981). The Court below has dismissed the above said petition for excusing the delay on the ground that application under S. 9(1) (a)(i) of the Tamil Nadu City Tenants Protection Act, by the tenant for purchase of the suit site must be filed within one month from the date of service of summons in the suit, but that it has not been filed so that the medical certificate only showed the illness of the petitioner from 3-2-1980 to 15-1-1981 and that the delay prior to 3.2.1980 right from the date of service of summons in the suit was not explained at all.

(2.) BUT, the contention of the learned counsel for the petitioner is that under the very same section, viz, S. 9(1)(a) (i) of the Act, an alternate time limit, apart from one month from the date of service of summons has also been prescribed, viz, one month from the date of publication of the Tamil Nadu City Tenants Protection Amendment Act 1979 (Act 2 of 1980) viz, 3.3.1980 and that hence the petitioner need not explain the alleged delay prior to the expiry of the said alternate period prescribed under the very same section. This contention is no doubt correct and the Court below has no doubt erred in not taking into account the alternate period prescribed by the very same section. He also relied on the decision reported in Appa Rao Bahadur v. Senthil-nathan , 1 . However, I do not see any merit in the present revision for the following other reasons: The affidavit in support of the application for excusing the delay does not at all give out the nature of the alleged illness. The relevant allegation in the affidavit in support of the application is as follows? ??I respectfully state that I was not aware of the Amending Act 2 of 1980 and its publication on 3.3.80. 1 was also not in the city for some months and I was ill and laid up in my village When I came to Madras and contacted my advocate, he informed me about the publication of the said Act: ? Here too, it is not stated first of all when actually he came to Madras and when actually he was informed about the above said publication. Further, it is also not stated how long actually he was not in the city and what was his nature of illness and how long the said illness lasted. Further the medical certificate also only simply says that he was suffering from ?Hemiplagia Etsid?. Whenever an illness is alleged, mere certificate of a Medicalman is not admissible unless it is proved by the evidence of person giving it, or at least his affidavit (vide Sarada v. Devaki 1 , Govindarajulu v. Lakshmi 2 . No doubt a departure is made to the above ruling in the Explanation to Order 26 rule I C.P.C. BUT that explanation will apply only for the purpose of the said rule, which provides for examination of witnesses on commission when the withess is unable to attend court due to sickness. That cannot have a general application. In the present case, there is no explanation anywhere as to what is this ?Hemiplegia Etsid?. No oral evidence or other documentary evidence is there to show the nature of illness. No doubt, it is stated that the said medical certificate was marked by consent. The consent given by a party for marking a document does not dispense' with either the proof of the contents of the document or the truth or otherwise of the contents (Vide Karuppanna Thevar v. Rajagopala Thevar 3 and Palaniappa v. Bombay Life Assurance Co 4 . In Karuppanna Thevar v. Rajagopala Thevar 3 referred to above, this court observed as follows- ?This Court held (in Palaniappa v. Bombay Life Assurance Co. 4 , that permitting a document to be marked by consent only means that the party consenting is willing to waive his rights to have the document in question proved, that is, the plaintiff was prepared to admit that the documents were what they purported to be namely a certificate given by the doctor and sent to the defendant and a reply given by the doctor to the questionnaire sent by the company. BUT agreeing to the document being marked by consent did not mean that plaintiff accepted the correctness of e very statement made by the doctor in those two documents. The correctness of the allegation contained in the certificate given by the doctor and in his reply would have to be proved only in the recognised ways as contained in the Evidence Act.? Further, the medical certificate only says that the petitioner was under the doctor's treatment upto 15.1.1981. There is no explanation for the subsequent period from 15.1.1981 to 23.1.1981, the date alleged as the date of filing the above said application for excusing the delay. The delay is also very much inordinate.