Order.-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 Order 26, rule 1, Civil Procedure Code to appoint a Commissioner to take the evidence of the 1st plaintiff. The reasons advanced by the plaintiffs for the necessity to examine the 1st 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, dated 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.

2. 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 Order 26, rule 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, son of Katty Mistry, 77, Nelkalam village, Gingee taluk, is suffering from hemiplegia and previous bilateral pulmonary tuberculosis illness is superadded. Now he should be treated under medical supervision in bed for 6 months from today. Travelling in any vehicle is dangerous to his life.”

3. 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. Order 26, rule 1, Civil Procedure Code, reads as follows:

“1. Cases in which 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 so to do.

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.”

4. In my view, when the registered medical practitioner has 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 conclusion 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 tha

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