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February 1, 2004 

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Medical Certificate as evidence

Examination of the concerned Medical Officer is a must 

High Court Division
(Civil Revisional Jurisdiction)
Civil Revision No 4285 of 2002
Anwara Begum and others
Vs
Shahnewaj and others
Mr. Justice Gour Gopal Saha
and Justice Sheikh Rezowan Ali
Date of Judgement : 10.12. 2002

Background
Sheikh Rezowan Ali, J: On an application by the petitioners under section 115(1) of the Code of Civil Procedure (CPC) a rule was issued calling upon the opposite party No 1 to show cause as to why the impugned judgment and order dated 18.7.2002 passed in Miscellaneous appeal No. 241 of 2001 by the learned Additional District Judge, 1st Court, affirming those dated 17.10.2001 passed in Miscellaneous Case No. 39 of 1985 (a proceedings under Order 9 Rule 13 of the Code of Civil Procedure) by the learned Joint District Judge, 2nd Court, Dhaka dismissing the said Miscellaneous case, should not be set aside and / or such other or further order or orders passed as to this Court might seem fit and proper.

Facts relevant for the purpose of disposal of this revisional application, in short, are that the opposite party No. 1 as plaintiff instituted title suit No. 363 of 1981 (later renumbered as Title Suit No 491 of 1981 in the 4th Court of learned Subordinate Judge, Dhaka) against the present petitioners as defendants for a decree of Specific Performance of Contract in respect of certain land. The said suit was decreed ex-parte on 1.10.1984. On 29.11.1984 petitioner No 1 Anowara Begum preferred a petition under Order 9 Rule 13 of the Code of Civil Procedure giving rise of Miscellaneous Case No. 96 of 1984 for setting aside of the said ex-parte decree and for restoration of the suit to its original file and number for re-hearing on the ground of her inability to appear before the Court for illness when the suit was called on for hearing.

The opposite party No. 1 filed a written objection in the said proceeding under Order 9 Rule 13 of the Code of Civil Procedure denying the alleged fact of illness of the petitioner No. 1. According to him the suit was rightly decreed ex-parte on account of the petitioner No. 1 having not been prevented by any sufficient cause from appearing before the Court when the suit was called on for hearing.

During the course of trial the petitioner No. 1 examined 2 witnesses including herself. The opposite party No. 1 however, did not examine any witness but his learned Advocate cross-examined the PWs at length. On the assessment of the evidence on record the learned Joint District Judge, found that the petition under Order 9 Rule 13 of the Code of Civil Procedure was barred by limitation and that the petitioner No 1 could not prove the fact of her illness prevented her from appearing before the Court hence the suit was called on for hearing.

Being aggrieved by the judgment and order of the learned Joint District Judge, 2nd Court, Dhaka the instant petitioners preferred Miscellaneous Appeal No. 241 of 2002 before the learned District Judge, Dhaka, who ultimately transferred the appeal to the 1st Court of the learned Additional District Judge, Dhaka. Learned Additional District Judge by his impugned judgment and order passed on 18.7.2002 dismissed the appeal mainly on the ground that the petitioner No. 1 could not prove the fact of her illness and that though a medical certificate was submitted it was not proved by the physician who issued such certificate. Consequently she failed to prove that she was prevented by any sufficient cause from appearing before the Court below when the suit was called on for hearing. Being aggrieved by the impugned judgment and order passed by the learned lower Appellate Court the petitioners preferred the instant revisional application and obtained the present Rule.

Deliberation
It has been submitted by the learned Advocate for the petitioners that learned lower Appellate Court illegally refused to consider the medical certificate which was produced before the trial Court by the petitioner No. 1 in support of her illness preventing her from appearing before the Court at the material time. In this connection he has cited a decision in the case of Khaleda Roushan Asa Vs Md. Nurul Haq, reported in (1990) 10 BLD (AD) at page 242 and another decision in the case of M/S Jaidurga Industries, Joypore and another Vs. Union Bank of India reported in Air 1988 (Orissa) at Page 104.

Learned Advocate for the opposite party, on the other hand, has submitted that the Medical Certificate submitted in the Court below was not admissible in evidence without examination of the physician who issued such certificate. In support of his submission he has cited a decision in the case of Kutubuddin Ahmed Siddiky Vs. East Pakistan Industrial Development Corporation, reported in 27 DLR (1975) at page 433.

We have given our active consideration to the submissions made by the learned Advocates for both the sides and the case laws cited by them. The ruling reported in 10BLD (AD)-242 relates to a case where adjournment was not allowed to the party willing to examine the physician who issued medical certificate, in support of his illness. It does not appear to us that the said decision exempted examination of the medical officer towards admission of a medical certificate in evidence when it was submitted by the party himself. The said decision does not fit in with the facts and circumstances of the instant case.

The ruling reported in AIR 1988 (Orissa) 104 does not relate to examination or non-examination of any physician towards admissibility or inadmissibility of any medical certificate in evidence. It is not relevant for our present purpose. On the other hand, in the decision reported in 27 DLR at Page-433 it has been held by a Division Bench of this Court to the effect "Medical Certificate about the illness of a certain person and his inability to move is not admissible in evidence without the examination of the Medical Officer giving the certificate in Court". This being the legal position upto date regarding necessity of examination of a Medical Officer in support of the Medical Certificate issued by him, we are constrained to hold both the Courts below were quite justified in refusing to accept and consider as evidence the Medical Certificate submitted by the party herself (petitioner No. 1) without examination of the Medical Officer who issued such certificate. Since the Medical Certificate was not proved according to law both the Courts rightly discarded the same as evidence of illness of the petitioner. Therefore, they rightly held that the petitioners failed to prove that she (petitioner No. 1) was prevented by any sufficient cause from appearing before the court when the suit was called on for hearing. It does not appear to us that any error of law has been committed resulting in an error in decision occasioning miscarriage of justice. We find no merit in this revisional application.

Decision
Accordingly, the rule is discharged with cost. The impugned judgment and order of the learned lower Appellate Court passed in Miscellaneous Appeal No. 241 of 2001 is upheld hereby. Earlier order passed by this Court staying all further proceedings of Execution Case No. 81 of 1985 pending in the 2nd Court of learned Joint District Judge, Dhaka is hereby vacated.

Advocate Mr Gazi Sayedul Huq for the Petitioners and Advocate Mr Mohammad Saha Alam for the Opposite Parties.

 









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