Lakshman and Others vs Ellammal and Others

Nainar Sundaram, J.—The plaintiffs in O.S. No. 347 of 1973 on the file of the Subordinate Judge, Cuddalore, are the petitioners in this

revision. The respondents herein are defendants in the said suit. The plaintiffs filed I.A. No. 2379 of 1976 under Or.26, R. 1, C.P.C., to appoint a

Commissioner to take the evidence of the first plaintiff. The reasons advanced by the plaintiffs for the necessity to examine the first plaintiff by

commission were that he was aged about 76 years, and on account of sickness and infirmity he was unable to attend court. The plaintiffs also filed

a certificate obtained from a Registered Medical Practitioner, d. 21st January 1977. The said application was dismissed by the court below and

the present revision is directed against the order of the court below. Mr. E. Padmanabhan, the learned counsel for the petitioners, urged that there

has been a lack of exercise of judicial discretion by the court below and the principles underlying Or.26, R. 1, as recognised and laid down by this

court have not been kept in mind by the court below, while disposing of the application in question. The Medical certificate referred to above reads

as follows--

I, Dr. G. Annamalai, M.B.B.S., after careful examination of the case hereby certify that Sri Laxman Mistry-77, s/o Kutti Mistry, Nelkalam village,

Gingee Taluk, is suffering from Hemiplegia and previous bilateral pulmonary tuberculosis illness is super added. Now he should be treated under

medical supervision in bed for six months from today. Travelling in any vehicle is dangerous to his life.

The court below has not rejected the above certificate because it has not given any reasons to reject the same. The only reference made by the

court is that the certificate was obtained the day previous to the filing of the petition. This may not be a sound reasoning because only at the time of

filing an application the party may feel the necessity to obtain a medical certificate and produce the same along with the application. Or.26 R.1,

C.P.C. reads as follows--

Cases in which the court may issue commission to examine witness : Any court may in any suit issue a commission for the examination on

interrogatories or otherwise of any person resident within the local limits of its jurisdiction who is exempted under this Code from attending the

court or who is from sickness or infirmity unable to attend it; Provided, that a commission for examination on interrogatories shall not be issued

unless the court, for reasons to be recorded, thinks it necessary to do so.

Explanation--The court may, for the purpose of this rule, accept a certificate purporting to be signed by a Registered Medical Practitioner as

evidence of the sickness or infirmity of any person, without calling the Medical Practitioner as a witness.

On a consideration of the above position, it is clear 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. However, if the court feels any doubt

about the acceptance of the certificate, it could call the Medical Practitioner as witness to find out the truth or otherwise of the averments contained

in the certificate. In the present case the court below has not chosen to do so. On the other hand, it makes its own comment as follows--

The character of sickness mentioned in medical certificate, I feel, is not such as to open to him any risk.

In my view, when the Registered Medical Practitioner opined about the sickness or infirmity of a patient it may not be proper for the court to brush

aside the opinion and come to its own conclusions in the absence of expert medical professional knowledge. When there is a specific provision to

call for the Medical Practitioner and examine him with reference to the medical certificate issued, it will not be fair and proper for the court to take

a different opinion than that expressed by the Registered Medical Practitioner through the certificate.

It is true that in the case of a party who wants to examine himself as a witness on commission, the court must be chary in issuing a commission.

In fact, as observed by Jagadisan, J. in Ramkrishna Kulvantrai v. Hardcastle & Co. 1962-2 M.L.J. 490=75 L.W. 676, inability to attend court on

grounds of sickness or infirmity or detriment to the public service would justify the issue of a commission. This is what is exactly contemplated

under Or.26, R.1, C.P.C. This observation has been quoted with approval by Ismail, J. in Zabia BiBi v. Sivaperumal 81 L.W. 430 . However, the

learned Judge has made a distinction between a party to the suit and a mere witness. Such a question does not arise for consideration in the

present case, because the party has produced a medical certificate of a Registered Medical Practitioner and the doctor has opined that travelling in

any vehicle is dangerous to the life of the first plaintiff in the suit. I asked the learned counsel for the petitioners whether the first plaintiff is in a better

position now. The learned counsel would say due to advancement of age there is no improvement in his health. Taking all these into consideration.

I find that there is a warrant for issuing a commission under Or.26, R.1, C.P.C. and the court below has not properly appreciated and applied the

principles governing the issue of commission under the Code and as laid down in the decisions referred to above. In the result, the Civil Revision

Petition is allowed, and the court below will appoint a Commissioner to record the evidence of the first plaintiff as prayed for. The suit being of the

year 1973, I direct the court below to dispose of the suit before the end of September, 1978. No order as to costs.