1954 Present: Pulle J. and Fernando A. J.

M. GANAPATHY, Appellant, and M. RAMASAMY, Respondent

S. C. 105-D, C. Colombo, 19,035
 

Postponement-Conflict of medical certificates-Proper assessment.

Where a medical certificate which was submitted on behalf of the plaintiff in support of an application for a postponement of the hearing of evidence was in conflict with the report of the medical practitioner who examined him on the next day on a commission issued by Court at the instance of the defendant-

Held, that the medical certificate should not be rejected unless it could be said that the medical practitioner who issued it and the plaintiff had conspired to conceal the true facts.

APPEAL from an order of the District Court, Colombo.

N. E. Weerasooria, Q. C., with H. W. Jayewardene, Q. C., and D. R. P. Goonetilleke, for the plaintiff appellant.

C. Thiagalingam, Q. C., with V. Arulambalam, for the defendant respondent.

Cur. adv. vult.

December 15, 1954. PULLE J.-

The order from which i his appeal is taken arises out of an application made by the plaintiff's counsel on the 18th December, 1952, for a postponement of the hearing fixed for that date on the ground of plaintiff's illness. The application was supported by a medical certificate dated the 17th December, which reads :

" This is to certify that Mr. M. Ganapathy is under my treatment for influenza with a temperature of 100 degrees and chest pain. He is confined to bed and unfit to move about. "

The certificate was challenged by defendant's counsel apparently on the ground that the statements therein were untrue and he obtained a commission on Dr. Cyril Fernando to have the plaintiff examined the same day. Dr. Fernando examined him on the 18th December at 12.45 p.m., and reported that his temperature was 98 o 2, pulse 84, and lungs and throat clear. In his opinion the plaintiff was not suffering from influenza and was fit to attend court. The case was called on the 19th December when defendant's counsel moved that it be fixed for trial ex-parte. This was resisted on two grounds, first, that an enquiry should be held on the medical reports and, secondly, that in any event the trial should proceed inter paries. The learned District Judge fixed the whole matter for
 

enquiry on the 9th March, 1953, and after hearing evidence he came to the finding that the plaintiff was fit to attend court on the 18th December and to continue his evidence and that his absence was without sufficient cause and made order that the case be set down for trial but that both on the plaintiff's claim and the defendant's claim in reconvention the plaintiff would not be entitled to be heard. The plaintiff appeals from this order.

The only evidence there is of the condition of the plaintiff on the night of 17th December is that of Dr. S. Chinniah. He was sent for to the house of the plaintiff on the 17th at about 7.30 p.m., and found him with a temperature of 100 degrees. The plaintiff complained of severe chest pain and pains all over the body. He prescribed a mixture, a powder and an ointment for the pain. The circumstances in which he gave to the plaintiff the certificate quoted earlier are spoken to by him as follows :

" Plaintiff told me that he had a case and that he had to attend court the next day. I told him that, as he had a chest pain, it was better for him to be in bed and take the necessary medicine. He wanted a certificate and I gave him a certificate stating the condition that he was in at the time. "

It is relevant at this stage to mention that the plaintiff claimed a sum of Rs. 26,012 and the defendant counter-claimed Rs. 35,002. The trial commenced with the evidence of the plaintiff on 23rd July, 1952, and was continued on 24th July, 13th and 14th October and 15th December, 1952. On the last mentioned date further hearing was put off for the 18th and 19th December, 1952. The cross-examination of the p