KANDASWAMI GOUNDER Vs. T SUBRAMANIA GOUNDER

JUDGEMENT

(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. Devaki1, 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. Ellammal2) cannot be sustained.