R. Soundarapandian vs Santhanadevan

Abdul Hadi, J.—This Civil Revision Petition is against the order in I.A.No. 2763 of 1982 refusing to excuse the delay of 9 months and 20

days in filing the interlocutory application u/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 Rtsid"" and was under

the doctor''s treatment from 3.2.80 to 15.1.81. The suit was filed in 1977 itself against the petitioner-tenant and the abovesaid petition u/s 9 of the

said Act is said to have been filed on 23.1.81. (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 abovesaid petition for excusing the delay on the ground that application u/s 9 (1) (a) (i) of the

Tamil Nadu City Tenants Protection Act, by the tenant for the 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 3.2.80 to 15.1.81 and

that the delay prior to 3.2.80 right from the date of service of summons in the suit was not explained all.

But, the contention of the learned Counsel for the petitioner is that under the very same Section, viz., Section 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., 3.3.80 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 alternative period prescribed by the very same Section. He also relied on the decision

reported in Appa Rao Bahadur v. Senthilnathan (1988)I M.L.J. 252. 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. I 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 abovesaid publication. Further,

it is also not stated for 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 ""Hemiplegia Rtsid"". Whenever an illness is alleged, mere certificate of a medical

man is not admissible unless it is proved by the evidence of person giving it or at least his affidavit: (Vide Sarada Vs. Nhattiyala Devaki, ; T.N.

Govindarajulu Vs. Lakshmi Ammal by her agent P.V. Narasimhan, ) No doubt a departure is made to the above Ruling in the Explanation to

Order 26, Rule 1, 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 witness 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 Rtsid"". 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 (died) and

Others Vs. Rajagopala Thevar and Others, and Palaniappa v. Bombay Life Assurance Co. AIR 1948 Mad. 298 (D.B.) In Karuppanna Thevar

(died) and Others Vs. Rajagopala Thevar and Others, referred to above, this Court observed as follows:

This Court held in Palaniappa v. Bombay Life Assurance Co. AIR 1948 Mad. 298 (D.B.) 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 that 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 the plaintiff accepted

the correctness of every statement made by the doctor in those two documents. The correctness of the allegations 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 15.1.81. There is no explanation for the

subsequent period from 15.1.81 to 23.1.81, the date alleged as the date of filing the above said application for excusing the delay. The delay is

also very much inordinate.

In view, of the above factors, I see no reason to interfere, with the order of the Court below in the exercise of the discretionary revisional

jurisdiction u/s 115, C.P.C. Hence, I dismiss this Civil Revision Petition, No costs.