C. G. Saseendran v. Mathew Exal and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE THOTTATHIL B.RADHAKRISHNAN & THE HONOURABLE MR. JUSTICE BABU MATHEW P.JOSEPH** **MONDAY, THE 27TH DAY OF MAY 2013/6TH JYAISHTA 1935** **FAO.No. 52 of 2012 ()** **---------------------IA NO. 859/2003 IN OS.NO. 3/1999 OF SUB COURT, PALA** **-------------------** ## **APPELLANT/PETITIONER/PLAINTIFF :** **--------------------------------------------------------** **C.G.SASEENDRAN, AGED 54, S/O.GOPALAN, CHOONDIYANICKAL HOUSE MARANGATTUPILLI P.O., MANNAKKANADU KARA KURICHITHANAM VILLAGE, KOTTAYAM DISTRICT.** **BY ADVS.SRI.A.X.VARGHESE SRI.A.V.JOJO** ## **RESPONDENTS/COUNTER PETITIONERS/DEFENDANTS :** **-----------------------------------------------------------------------------------** ## **1. MATHEW EXAL, SUB INSPECTOR,** **KOTTAYAM RAILWAY STATION-686142.** ## **2. ANIAMMA JOHN,** **W/O.JOHN, KUNNATHUTHARAPPIL, MARANGATTUPILLI KARA KURICHITHANAM VILLAGE, PIN-686 635.** ## **3. JOHN JOHN, KUNNATHUTHARAPPIL, MARANGATTUPILLY KARA KURICHITHANAM VILLAGE, PIN-686 635.** **4. JOHN JOY, KUNNATHUTHARAPPIL, MARANGATTUPILLY KARA KURICHITHANAM VILLAGE, PIN-686 635.** ## **5. KURIACHAN,** - **KUNNATHUTHARAPIL, MARANGATTUPILLY KARA KURICHITHANAM VILLAGE, PIN-686 635.** **6. JOSEPH XAVIER @ JOSEPH SAWRI, PUTHENPARAMBIL, MARANGATTUPILLY KARA, ELACKAD VILLAGE, PIN-686635.** **...2/-** **FAO.No. 52 of 2012 () -2-** **7. C.N.MATHEW @ MATHAI CHACKULICKAL, KUNNATHUTHARAPIL, MARANGATTUPILLY KARA KURICHITHANAM VILLAGE (DIED) REPRESENTED BY HIS LEGAL HEIR THANKACHAN S/O.C.N.MATHEW @ MATHAI, KUNNATHUTHARAPIL MARANGATTUPILLY KARA, KURICHITHANAM VILLAGE PIN-686 635.** **8. CHACKO, KUNNATHARAPIL, MARANGATUPILLY KARA KURICHITHANAM VILLAGE, PIN-686635.** ## **9. VARKEY,** - **PALUKUDIYIL HOUSE, MARANGATUPILLY KARA KURICHITHANAM VILLAGE, PIN-686635.** **10. JOSE, S/O.DEVASSIA, KOLLIYAMKUNNEL, MARANGATUPILLY KARA KURICHITHANAM VILLAGE, PIN-686635.** **11. VISWAN, S/O.KUNJIRAMAN, OZHAKKATHOTTIYIL, MARANGATUPILLY KARA PIN-686635.** ## **12. SASI, ADIYANIKAL HOUSE, MARANGATUPILLY KARA, PIN-686635.** ## **13. I.V.SASI,** **MARANGATUPALLY KARA, VAIKOM, PIN-686635.** ## **14. CHANDRAN,** **NARAKATHUMKAL, MARANGATUPILLY KARA, ELACKAD PIN-686 635.** **R2 & R3 BY SENIOR ADVOCATE SRI.ABRAHAM VAKKANAL BY ADV. SRI.PAUL ABRAHAM VAKKANAL BY ADV. SMT.VINEETHA SUSAN THOMAS BY ADV. SRI.DIJO SEBASTIAN** **THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 27-05-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **Mn** **...3/-** ## **FAO.No. 52 of 2012 ()** ## **APPENDIX** |**PETITIONERS' ANNEXURES :**|**PETITIONERS' ANNEXURES :**| |---|---| |**ANNEXURE-A1**|**TRUE COPY OF THE MEMORANDUM OF CIVIL REVISION**| ||**PETITION 961/2004 DATED 26/7/2004.**| |**ANNEXURE-A2**|**TRUE COPY OF THE JUDGMENT IN C.R.P. 961/2004 DATED**| ||**23/6/2011.**| |**ANNEXURE-A3**|**TRUE COPY OF THE DEATH CERTIFICATE DATED 24/5/2007.**| |**ANNEXURE-A4**|**TRUE COPY OF THE SPECIAL POWER OF ATTORNEY DATED**| ||**30/12/2001.**| |**RESPONDENTS'**|**EXHIBITS :**<br> **NIL**| **//TRUE COPY//** **P.S. TO JUDGE** **Mn** ## “CR” ## Thottathil B.Radhakrishnan & Babu Mathew P.Joseph, JJ. = = = = = = = = = = = = = = = = = = = = = = = = F.A.O.No.52 of 2012 = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 27[th] day of May, 2013 ## Judgment ## Thottathil B.Radhakrishnan, J. 1.This appeal is against an order dismissing an application under Order IX Rule 9 of the Code of Civil Procedure. The plaintiff in a suit for damages is the appellant. He instituted the suit in 1999 and thereafter, went abroad in pursuit of employment as a driver. He constituted his wife Komalam as his power of attorney holder to conduct the suit on his behalf. The suit was listed for evidence on 22.8.2003. Plaintiff's wife did not appear. On that day itself, plaintiff's counsel filed an application seeking adjournment and to have the case removed from the special list on the plea that the plaintiff's FAO52/12 -: 2 :- wife was unwell and under treatment. That application was dismissed on the next day. As a consequence, the suit was dismissed for default. The application for restoration was filed within time. That was supported by a medical certificate issued by the Assistant Surgeon attached to a Public Health Centre. That certificate, going by the impugned order, says that the plaintiff's wife was suffering from some situation in connection with her sciatic nerve. We say this because, the learned Judge has quoted the certificate to state that the petitioner suffers from acute “lambargo sciatic sundrome” and was advised 15 days' bed rest from 20.8.2003. We conceive that the problem was lumbar sciatic syndrome, which obviously, would have rendered the patient incapable of moving, except in pain. No objections were filed opposing the application for restoration. It appears from the impugned order that a counsel appearing for the defendants had mentioned at hearing that the petitioner was not under treatment of any doctor and the so- FAO52/12 -: 3 :- called medical certificate was concocted for the purpose of the application. It is true that the plaintiff's wife, who was his power of attorney holder, did not mount the box to tender evidence in support of the medical certificate. The fact of the matter remains that she died and now the plaintiff is represented before us through his son, who is now his power of attorney holder. The court below, in our view, had misdirected itself in deciding the application, which was not even opposed by filing any written objection. It has to be remembered that the application seeking restoration was filed within the time prescribed by law and it was not objected to in writing while the application was supported by the affidavit of the plaintiff's wife. Under such circumstances, this appeal is entitled to succeed. - 2.With indefatigable modesty and recluseness, we think that it would be inappropriate if we do not take stock of, and politely state our views ## FAO52/12 **==> picture [28 x 9] intentionally omitted <==** about, the manner in which the learned trial Judge has criticized the medical certificate, the doctor and the medical profession in general. - 3.It is stated in the impugned order that “now a days it is the nature of the parties to obtain medical certificate from any Doctor as he likes only on payment of some money to the Doctor”. It is also stated in the impugned order that “the issuance of medical certificate now a days became a procedure only for the purpose of getting some fees or amount and not on the basis of a genuine document”. - 4.The aforesaid remarks regarding the medical certificate cast serious aspersions on the doctor who has issued it. The comments made in the impugned order are of such nature as would affect the character and reputation and may, ultimately, affect the career of the doctor who issued that certificate. Condemnation of that doctor without giving him an opportunity of being heard was a FAO52/12 -: 5 :- complete negation of the fundamental principles of natural justice. Even if the learned Judge had some personal opinion on such matters, that should not have been imported into the adjudicating process when there was no legitimate foundation even to infer so, on the available materials. The learned Judge has gone out of bounds in making scathing observations, that too, general and sweeping in nature, against a community of professionals. Such omnibus statements in judicial orders defeat the majesty and grandeur of the courts and judicial system in public eye. 5.Doctors are professionals who are indispensable for maintaining and providing health support system. They are treated with regard and respect in the society. People look upon them for support in times of need for medical aid. Through Primary Health Centres, they provide the life-link for the common man in the society. From time immemorial, the medical profession is regarded as FAO52/12 -: 6 :- noble and service oriented. The confidence of the people cannot be shaken through statements in judicial orders criticizing the community of doctors as a whole. People give great value for judicial statements. It is therefore all the more necessary that sweeping generalised criticism is never made against such professionals. Even if there occurs any situation which may require criticism of the conduct of any particular doctor, that shall be made in such a manner that the blemish does not get smeared onto that community as a whole. Not only that, such criticism should not be resorted to in judicial function, unless it becomes inexcusably necessary to render the judicial verdict called for in a given case. 6.Use of intemperate language or making disparaging remarks against anyone is inconsistent with judicial behaviour, unless that be the absolute requirement for deciding the case. Words written in judicial orders form permanent record. That FAO52/12 -: 7 :- makes it even more necessary to practise selfrestraint in exercise of judicial power while making written orders. Judicial pronouncements must be judicial in nature, and should not depart from sobriety, moderation and reserve. It is helpful to recall this facet to remind ourselves and avoid pitfalls arising even from provocation at times. Use of temperate language and moderate expressions while criticizing even parties to the litigation only lends more dignity to the high office of a judge. Judicious restraint in such matters is part of judicial discipline. That would impart greater respect for the judiciary. It is necessary that in expressing opinion, Judges must be guided by considerations of justice, fair play and restraint. Sweeping generalizations defeat the very purpose for which they are made. Judges should not use strong and carping language while criticizing even the conduct of parties or their witnesses. They must act with restraint. They must have the humility to recognise that they are not infallible and any FAO52/12 -: 8 :- harsh and disparaging strictures passed by them against any party may be mistaken and unjustified and if so, they may do considerable harm and mischief and result in injustice. Adverse remarks should not be made lightly as it may seriously affect character, competence and integrity of an individual. The court is a seat of power. The judges have the absolute and unchallengeable control of the court domain. However, they cannot misuse their authority by intemperate comments, undignified banter, or scathing criticism. While the court has the inherent power to act freely upon its own conviction on any matter coming before it for adjudication, it is the reckoned general principle of the highest importance, that for the proper administration of justice, derogatory remarks ought not to be made against any person or authority whose conduct comes into consideration, unless it is absolutely and inexcusably necessary to criticize their conduct, to render the verdict in that particular case. The language of a judgment should be sober and FAO52/12 -: 9 :- temperate and in no case satirical or factious. Judges should refrain from being sarcastic in their judgments. They should be dignified and restrained in the expression of their opinions. Even when criticising a witness, which may become absolutely necessary, it should be in sober and becoming language. It should be restrained and in decorous terms. General remarks about any class or group of persons should be scrupulously avoided. It is never necessary to pass remarks about a whole class of society who are not before the Court. Even if there is criticism of any individual public servant, there should be no condemnation of the like as a whole. - 7.We have noted the above salutary principles based on different decisions of the Hon'ble Supreme Court of India to which we have profitably referred. We enumerate them: State of U.P. v. Mohammad Naim [AIR 1964 SC 703], Jage Ram v. Hans Raj Midha [AIR 1972 SC 1140], R.K.Lakshmanan v. A.K.Srinivasan [AIR 1975 SC FAO52/12 -: 10 :- 1741], Niranjan Patnaik v. Sashibhusan Kar [AIR 1986 SC 819], State of M.P. v. Nandlal Jaiswal [(1986) 4 SCC 566], M.P.Pradhan v. Union of India [(1990) 2 SCC 533], Abani Kanti Ray v. State of Orissa [1995 Supp (4) SCC 169] and State of M.P. v. Narmada Bachao Andolan [(2011) 12 SCC 689]. We need to follow the law laid in those precedents and avoid studding the judicial seat with parched and thorny clutters. 8.Hon'ble Mr.Justice R.V.Raveendran, former Judge, - Supreme Court of India, in “Rendering Judgments Some Basics” [(2009) 10 SCC J1] says: “When a Judge puts on his judicial robes, he should put off not only friendships, relationships, caste, community, religion, political sympathies, but also put off his prejudices, pet notions, and personal philosophies”. 9.To conclude the aforesaid discussion, we quote FAO52/12 -: 11 :- the Hon'ble Supreme Court of India from M.P.Pradhan (supra): “Judicial restraint and discipline are as necessary to the orderly administration of justice as they are to the effectiveness of the army. The duty of restraint, this humility of function should be constant theme of our judges. This quality in decision making is as much necessary for judges to command respect as to protect the independence of the judiciary. Judicial restraint in this regard might better be called judicial respect, that is, respect by the judiciary. Respect to those who come before the court as well to other co-ordinate branches of the State, the executive and the legislature. There must be mutual respect. When these qualities fail or when litigants and public believe that the judge has failed in these qualities, it will be neither good for the judge nor for the judicial process.” FAO52/12 -: 12 :- 10.As held in paragraph 1 above, this appeal is entitled to succeed. In the result, this appeal is allowed setting aside the impugned order and allowing I.A.No.859 of 2003 in O.S.No.3 of 1999 of Sub Court, Pala, thereby restoring that suit to file. The parties are directed to mark appearance before the court below on 10.9.2013. Sd/Thottathil B.Radhakrishnan Judge Sd/ Babu Mathew P.Joseph Judge Sha/ -true copy- PS to Judge