ORDER
1. In this Revision Application, the petitioner challenges the order of the trial court rejecting the petitioner’s application for restoration and the order of the lower appellate court confirming the said order. Miss. V. P. Shah, learned counsel for the petitioner states that the two courts below were not justified in rejecting the restoration application of the present petitioner on the ground that the Doctor who had issued certificate was not examined. According to Miss. Shah, the petitioner was unable to remain present in the trial court on the day on which ex-parte decree was passed because the petitioner’s mother had become seriously ill at Rajkot and he had to go there. After going there, he had himself become ill. On coming back to Ahmedabad, he came to know about the ex-parte decree and promptly filed application to set aside the ex-parte decree. Miss. Shah urged that ordinarily the contents of the medical certificate should be accepted as correct unless the other side challenge its veracity. She therefore submitted that this is a fit case where the ex-parte decree should be set aside and the matter be heard and disposed of on merits.
2. Mr. N. A. Acharya, learned counsel for the respondent submits that the two courts below were justified in rejecting the restoration application on the ground that the Doctor who issued the certificate was not examined. According to him, there is no reliable evidence on record to show that the contents of the medical certificate were correct. He therefore submits that the present petition should be rejected and the concurrent decision of the two courts should be upheld.
3. Although it is a common knowledge that the certificates issued by the medical practioners are often untrue and that such certificates are issued for the mere asking and on the payment of nominal charges, yet it would not be correct to say that no medical certificate can be relied upon unless the Doctor who has issued it, is examined. There cannot be a general presumption that all medical certificates are false. The contents thereof would be required to be proved only if the other side challenges its veracity. When a party challenges the veracity of a medical certificate, the party producing the certificate has to prove the correctness of the statements made therein. In absence of any challenge by the other side, the medical certificate should be accepted as correct unless the court feels that its Contents are on the face of it false or at least it is doubtful. While it is true that there has to be a convincing proof about the legitimate reason for a party to remain absent at the hearing of the matter, the court must not overlook the important consideration that the cases before the court should be decided as far as possible on merits and not on mere technicalities. The primary function of a court is to do substantial justice between the parties as far as it is humanly possible. This can be more effectively done by hearing the parties and disposing of the matter on merits. The technicalities often not only shortcircuit the judicial process, but also lead to substantial injustice and at times, very gross injustice. Hence, the courts must look at the question of doing substantial justice in a wider perspective rather than allow itself to be carried away by technicalities of the conduct ‘of a party.
4. In the present case, there is nothing on record to show that the respondent had challenged the veracity of the medical Certificate nor does he appear to have expressed his desire to cross-examine the Doctor who had issued the certificate. The court also did not express any doubt about its genuineness or correctness. Hence, in the circumstances of the case, the court below should have accepted the medical certificate as correct and the ground for remaining absent should have been considered sufficient. It should have set aside the ex-parte decree and disposed of the case on merits.
The dismissal for default or passing an ex-parte decree on account of non-appearance of the party, are the kinds of drawbacks which can be adequately remedied by awarding costs to the other side: if the court feels that the conduct of a party was particularly improper, it may award substantial amount by way of costs to be paid to the other side. To dispose of the entire matter because of the absence of a party, may amount to throwing away the baby with the bath water and may in certain cases amount to gross injustice, which should ordinarily be avoided.
5. In the circumstances of the case, the application deserves to be allowed on payment of costs to the respondent.
6. Mr. Acharya has contended that the petitioner is not entitled to any sympathy of this court because he has been a tenant in arrears of rent for several years. According to him, the total amount of arrears of rent due till today amounts to about Rs. 8,800/-. Miss. Shah contends that the amount stated by Mr. Acharya is not correct. According to her, the amount due now is about Rs. 4,800/-. She also submits that there is a bona fide dispute with regard to standard rent also. She therefore prays that some time may be granted to the petitioner to deposit the arrears of rent in the trial court. The contention of Mr. Acharya that the tenant cannot be allowed to stay in the premises unless and until he pays the arrears of rent is quite correct and must be upheld. The tenant would be entitled to the protection of law only when he deposits in the trial court the entire amount of arrears of rent. A tenant who does not pay the rent should not be permitted to remain in possession. In the circumstances of the case, the petitioner-tenant is directed to deposit in the trial court a sum of Rs. 5000/- towards arrears of rent and a sum of Rs. 500/- towards costs throughout on or before 5-9-1987. He will deposit the balance of the arrears within time which the trial court may grant him and will continue to deposit the rent as and when it becomes due during the pendency of the suit and appeal, if any. On the petitioner depositing the aforesaid amount of Rs. 5,500/- on or before 5-9-1987, the suit will be restored and will be heard and disposed of on merits by the trial Court. If the petitioner fails to pay the said amount, the present Revision Application will stand rejected. At the hearing before the trial court it will be open to the petitioner to advance arguments on all the contentions raised in the suit including the dispute with regard to the standard rent, if it is already raised in the suit. The respondent will be at liberty to withdraw the aforesaid amount without furnishing the security.
7. In the result, the petition succeeds. Rule is made absolute accordingly.
8. Petition allowed.
