Vishanji D. Futnani Vs. Mohanlal Futnani Alias Mohanlal D. Futnani and anr. - Court Judgment

Excerpt:
- c. shivappa, j.1. this appeal is against the order, dated 29.10.1998 passed on application no. 3338 of 1998 in t.o.s.no. 19 of 1984.2. the appellant herein filed an application for appointment of a commissioner to examine the defendant in t.o.s.no. 19 of 1984, on the ground that he is aged about 70 years, suffering from cardiac ailment including diabetes, since november, 1995. according to the appellant, he is under treatment and care of physicians, including dr. bhaskar das, who advised not to undergo long journey or be engaged in strenuous activities. in support of his contention, the appellant produced the copies of the report for the test conducted by dr. baradhan, head of the department, cardiology at the woodlands hospital and medical research centre ltd., calcutta. in order to establish the seriousness of the illness, he wanted to examine dr. baskar dass, who had issued the certificate dated 31.7.1998. though he was brought to court when the matter was taken up for argument, the learned single judge opined that mere marking of the medical certificate or examining the doctor as witness will not be sufficient for issue of commission to examine the witness, and declined to examine the said doctor.3. the respondent herein refuted the averments inter alia contending that the health condition of sri vishanji d. futnani is good and he is able to walk for nearly one hour and the medical reports show that he is quite normal and the application has been filed only to prolong the case.4. the learned counsel for the appellant eon-tended that the learned judge erred in not taking into consideration the matters which are germane for the decision of the matter in question and further failed to appreciate the seriousness of the ailments such as dilated cardiomyopathy with grade i mitral regurgitation in a diabetic background complicated with benign systemic hypertension and anterolateral ischaemia. his main grievance is that he was not allowed to examine the doctor, particularly when the respondents have questioned the very certificate issued by the doctor. where seriousness of ailment is' alleged, which fact denied, the court should have held that examination of the doctor would definitely be called for, and not doing that is a serious prejudice caused. even though the doctor had been brought all the way from calcutta, the court has denied to examine him, that too when the courts have held that examination of the doctor is essential to prove the seriousness of the ailment, before reaching a conclusion on the question of issuance of commission or otherwise.5. in lakshman v. elammal (1978) 2 m.l.j. 280, this court took the view that a certificate issued by a registered medical practitioner can be accepted by the court as evidence of 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.6. while considering the application for issue of commission, the court must exercise a wise discretion because in allowing a person to be examined, on commission, the court is deprived of an opportunity of observing the demeanour of the witness.7. in satish chandra chatterji v. kumar satish kantha roy a.i.r. 1923 p.c. 73, it was held that, 'evidence taken on commission should only be permitted to be used where the witness is proved to be too ill to give his evidence in court or is absent or for other sufficient reason.'8. in a.m. fernando v. franciz xavier church : air1961mad31 , this court has taken the view that examination of a witness on commission is not an alternative to an examination in court, so as to vest in a court a power to issue a commission in all cases where it was apparent that the witness is likely to speak the truth.9. a finding of fact arrived at by a judge' who himself saw and heard all the witnesses is of greater value than that by one who did not do so. in such a situation, the exercise of discretion should be based on clinching, appropriate evidence touching the seriousness of the illness, the consequences in the event of undergoing travel and the condition of the patient. although a medical certificate, unsupported by doctor's evidence is admissible in evidence, the court cannot act on it unless it contains the nature of seriousness of the condition of the patient and other relevant particulars on the basis of which the court can come to a conclusion that it would be risky for the patient to attend court.10. in lakshman v. elammal (1978) 2 m.l.j 280, referred 10 supra,' this court took the view that if a registered medical practitioner has opined about the sickness or infirmity of a person it may not be proper for the court to brush aside the opinion and come to its own conclusion in the absence of expert medical professional knowledge. when there is 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.11. in the impugned order, the learned judge has observed that the medical certificate will not lead to the conclusion that his health is so bad and he is not able to travel between calcutta and chennai to depose before court, and declined either to act on the medical certificate or to examine the doctor. if the court feels any doubt in the acceptance of the certificate nothing prevented it to examine the doctor to find out the truth or otherwise of the averments contained in the certificate. in the present case, the learned single judge has not chosen to do so. when the party wants to examine a doctor in support of the seriousness of the ailment to show the inability to attend the court, that too, when the doctor has advised him not to travel and such travel is dangerous to the life of the person concerned, it is all the more necessary to provide with an opportunity to establish such a case. that will also provide an opportunity to the respondent to contest or disprove the averments made in support of the application, thus enabling the court to arrive at a just conclusion on the question of appointment of a commissioner to examine the witness. therefore, we hold that refusal to examine the doctor is a material irregularity in the exercise of discretion and we set aside the impugned order. we also request the learned single judge to examine the doctor who had issued the medical certificate about the ailment. the counsel appearing for both parties have agreed to examine the doctor on 10.12.1998 without fail. the appellant to keep the doctor ready and request the court for such examination, without protracting the proceedings.12. the appeal is allowed. consequently, c.m.p.no. 16724 of 1998 for stay is closed as unnecessary. parties to bear their own costs.