Admissibility of medical certificate for illness.

This is a revision petition against the order of the learned Subordinate Judge, Chingleput, in I.A. No. 246 of 1959 in O.S. No. 71 of 1957. The defendant is the petitioner.

On the plaintiff’s application under Order 26, rule 1 of the Code of Civil Procedure, the lower Court permitted one Panchanatha Mudaliar to be examined as a witness on commission. It is common ground that Panchanatha Mudaliar is a material witness. The witness was sought to be examined on commission on the ground that he was very weak and infirm and confined to bed and that it was physically impossible for him to come to Court or be brought to Court. The affidavit in support of the application was accompanied by a medical certificate, dated 29th July, 1959, granted by Dr. P. T. Srinivasan, Honorary Assistant Surgeon, Government General Hospital, Madras. The certificate stated that Panchanatha Mudaliar was suffering from an attack of acute fever with hyperlipens and palpitation of the heart and that as he was to take complete rest, he was not in a fit condition to travel long distance. The defendant denied that Panchanatha Mudaliar was ill or sick, infirm or weak or confined to bed and opposed the application for examination on commission. After several adjournments of the petition for commission, the learned Subordinate Judge, after hearing the parties, felt that from the affidavit and counter-affidavit he was not in a position to find out the truth or otherwise of the averment as to the physical condition of Panchanatha Mudaliar. He, therefore, directed in his order, dated 3rd September, 1959, that Panchanatha Mudaliar should be examined by the First Physician in the General Hospital and a certificate obtained as to whether the witness was in a position to come and give evidence in Court. On the plaintiff reporting to the lower Court that the doctor was not willing to examine the witness unless there was a requisition from the Court,, the lower Court issued a requisition through the Dean of the Government General Hospital, Madras, for medical report. Dr. U. Ramachandra, Surgeon (IV District) Madras, sent his medical report, dated 26th October, 1959, in which the doctor said that Panchanatha Mudaliar had been suffering from diarrhoea for the past 10 years, that since six months he had been losing weight considerably, that he looked very pale, weak and emaciated and was not in a fit condition to travel, that his general health was poor and that any exertion might result in strain to the heart. On 27th November, 1959, the learned Subordinate Judge accepted the medical report and finding on that basis that Panchanatha Mudaliar was not in a fit condition to come and give evidence before the Court, ordered that he be examined on commission. In so doing, the learned Subordinate Judge overruled the defendant’s objections that the medical report was inadmissible in evidence and that it could not, therefore, furnish the basis of a finding that the witness was ill and infirm and was unable to attend Court.

Sri V. Vedantachari, the learned counsel for the petitioner before me, reiterated the contention based upon the inadmissibility of the medical report and contended that the medical report was no better than a statement not even on oath, of a living person and was worse than hearsay evidence and that the lower Court acted improperly in relying on the medical report and directing the witness to be examined on commission. I think there is force in this contention.

There is nothing in the Evidence Act which makes a doctor’s certificate relating to the illness of a witness by itself evidence at all. It is not a sworn statement and if it is to be relied on as evidence, I think it must be proved in the normal way by the testimony of the person giving it who will stand cross-examination. The statement of a doctor in his medical certificate or report, who is not himself called as a witness, is in the nature of hearsay evidence and as such it is not evidence of the t