T LAKSHMIAMMAL Vs. M JOTHI ANANDAN

JUDGEMENT

(1.) DEFENDANTS 2 and 4, in O.S. No.219 of 1989 on the file of Sub Court, Udumalpet, has preferred this civil revision petition against the dismissal of their I.A. No.2241 of 1994 for excusing the delay of 415 days in filing the petition to set aside the ex parte decree dated 1.9.1993 in the said suit. The said suit is for recovery of a sum of Rs. 1,15,141 as damages, with future interest at 12 per cent per annum from the date of suit till realisation. The plaintiff- respondent is a tenant under the defendants, carrying on business in the suit premises. According to the respondent/ plaintiff the suit is laid on the ground that the petitioners herein have cut-of water supply and electricity to the said premises and thereby he suffered business loss. This claim is denied in the written statement. However, we are not very much concerned with the rival contentions on the merits of the suit. Originally there were two defendants in the suit. Pending suit first defendant died in the year 1991 and defendants 3 and 4 were brought on record as his legal representatives. It appears that subsequently, the third defendant also died in the year 1993. At the time when the ex parte decree was passed on 1.9.1993, defendants 2 and 4 were alone the defendants and they have filed the abovesaid LA. second defendant is the mother and fourth defendant is the son.

(2.) ONE reason given in the affidavit of the fourth defendant- son, filed in support of the I.A., is that between 1.8.1992 and 5.11.1993 the second defendant- mother was suffering from tuberculosis and the fourth defendant had to look after her. Another reason given in the said affidavit, is that the said fourth defendant himself was not well from 1.8.1993.

(3.) WHILE considering the rival submissions regarding the above said 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 spoken about his and his mother's illness and the medical certificate given to him in relation to his illness and relation to the illness, of his mother. Admittedly, there is no cross-examination of P.W. 1 suggesting that those medical certificates are bogus and not genuine. In the circumstances, those certificates could be taken as proved and the decision reported in Sarada v. Devaki, A.I.R. 1935 Mad. 659, cited supra, may not have strict application to the facts of the present case. Relevant observation of the Division Bench on 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.'[Italics supplied] But it does not appear that in the abovesaid decision any body 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. So the present case is not a case where a medical certificate alone is produced without any further proof. The following observation in Srinivasulu v. Krishnammal, 100 L W. 566, 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 decrees 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.