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.
