SARADA Vs. NHATTIYALA DEVAKI

JUDGEMENT

(1.) THIS is an appeal from an order of the learned Subordinate Judge of Tellicherry refusing to S9t aside an exparte decree passed by him on 5 September 1932. The appellant here was defendant 2 in the suit being the daughter of defendant 1 who was sued on a mortgage. Defendant 1 did not defend the suit; defendant 2 did. The suit was filed on 11 July 1932; written statement was filed on 1 August 1932; issues were settled on 3 August 1932 and the case was posted to 23 August 1932 for trial. On that date an adjournment was asked for by defendant 2's advocate on account of defendant 2's illness. She was absent on that date. Apparently there was no evidence to support the application for an adjournment which was refused but, owing to the pressure of work, the case was not taken up on that date but was adjourned until 5 September 1932. On that occasion defendant 2 was still absent. An application for adjournment was put in and the learned Subordinate Judge passed the following order upon it: Plaintiff's advocate opposes. I do not see-sufficient reason to wholly adjourn the trial. The trial will be commenced. In spite of the petitioner's default, I shall allow her an opportunity to adduce her evidence. Then, according to the learned Subordinate Judge: When the plaintiff's advocate began to explain his documents the learned advocates for defendant 2 stated that they had no further instructions. Defendant 2 was absent and she was set exparte. 3. After this the application under appeal was put in on her behalf asking that the ex parte decree should be set. aside and the suit restored to the file. The appellant's case is that on 23rd1 August 1932 she was suffering from typhoid fever and had been so for some time, that she was unable on account of the illness to instruct her advocate or to attend Court and that on the adjourned date, namely 5 September, 1932, she was still too weak to come to Court although she admits that she was actually in Tellicherry on 4 September 1932 and I think also on 5 September, 1932. She did not think fit even on the latter date to come to Court in order that the Subordinate Judge might himself observe her weakened state of health. She produced no evidence whatsoever with regard to her illness which was disputed by the respondent. When the application came on for hearing, she produced a medical certificate given by a local medical practitioner dated 23 August, 1932 stating that she was under his treatment and had been under his treatment for typhoid fever and would be unable to attend Court for at least a month. The Subordinate Judge was of the view that the certificate by itself ought not be be accepted by him and he accordingly adjourned the application to 5 January, 1933 for the purpose of enabling the appellant to produce the doctor, she not having even put into Court an affidavit made by him. On the adjourned date she again appeared without the doctor and without an affidavit sworn to by him, merely stating that she had been unable to secure his attendance. She had neither cited her lather who, she stated, was an important "witness, to give evidence with regard to the main suit; nor did she apply at any time for subpoena for the attendance of the doctor. The Subordinate Judge rejected her case that she was too ill to come Court or that she was suffering srrom typhoid fever as there was no evidence in corroboration of her own statement, and according to her own statement she was actually in Tellicherry on 6he day before the adjourned hearing and on that date and never even came to Court. With regard to the rejection of lobe medical certificate, I think it is necessary to say this. 4. There seems to be a view current that a doctor's medical certificate is sufficient evidence or at least corroborative evidence of other oral evidence in cases relating to the illness of a witness which causes that witness to be absent from Court on a particular date. There is nothing in the Evidence Act, or outside it, which makes a certificate given by a medical practitioner by itself evidence at all. 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 thetn. Other judges may proceed on more cautious 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 my view this is the correct procedure. In this case I am satisfied that the Subordinate Judge was quite right in not accepting the medical certificate. Ample opportunity was given to the appellant to produce the doctor or an affidavit Isworn to by him or some other evidence corroborative of her illness. She produced nothing of the kind. She failed to prove her absence on 5 September 1932 was due to sufficient cause. The learned Subordinate Judge rightly resected her application. THIS appeal must be dismissed with costs. Cornish, J. 5. I entirely agree.