TAPESHWARI DEVI Vs. S.N. SINHA

JUDGEMENT

(1.) THIS order will also govern Civil Revision No. 582 of 1961.

(2.) THESE two revision petitions arise out of two separate suits filed by Tapeswari Devi for the recovery of electricity charges from her two tenants In each suit the plaintiff alleged that the defendant concerned had agreed to pay an extra amount of Rs.10 per month over and above the monthly rent of Rs.60 for the electricity consumed by him in the tenement, and that the defendant Sinha had failed to pay the electricity charges for the period from the 1st April 1959 to 6th May 1961 and the other defendant had also not paid the charges for the period from 1st April 1959 to 1st August 1961. The plea of each of the defendants was that the monthly rent of Rs.60 in respect of the premises included charges for electricity consumption. The two suits were consolidated by the lower Court. In the course of the trial of the suits, it was stated on behalf of the plaintiff that if the defendant concerned would take a special oath on 'Gangajali' and state that the monthly rent of Rs. 60 included electricity charges, the plaintiff would abide by that oath and the suit should be dismissed accordingly. Each of the defendants took oath and testified that the monthly lent of Rs. 60 was Inclusive of electricity charges. Thereupon the learned Judge of the Court of Small Causes, Jabalpur, dismissed both the suits. Hence these revision petitions by the plaintiff.

(3.) BOTH these petitions are devoid of any substance and must be dismissed. The record clearly shows that the offer under section 9 of the Act was made on behalf of the plaintiff by her counsel and not by Bhagwat Prasad. It is true that in the order recorded by the lower Court on 23rd October 1961 it bas been stated that the "Plaintiff examined himself." As the plaintiff's husband Bhagwat Prasad and not the plaintiff herself was examined, the statement is no doubt erroneous. But from that statement it does not follow that throughout the order dated 23rd October 1961 the trial Judge used the word 'plaintiff' for Bhagwat Prasad and not for Tapeshwari Devi, and consequently the statement in the order that "the plaintiff offered special oath" meant that Bhagwat Prasad had offered the oath. The plaintiff Tapeswari Devi' was appearing through her counsel Shri Awasthy, and the expressions in the order dated 23rd October 1961, namely, "Plaintiff with Shri Awasthy" and "Plaintiff offered special oath" only mean that the plaintiff's appearance was through her counsel and it was he who made the offer of special oath on behalf of the plaintiff. So also the note recorded by the trial Judge when Bhagwat Prasad was being examined as plaintiff's witness that "At this stage the plaintiff" offered special oath in the following words..." plainly means that the offer of special oath was on behalf of the plaintiff and through her counsel. It may be that the suggestion to offer special oath was put by Bhagwat Prasad to the plaintiff's counsel who then acting as the duly authorised agent of his client put the offer before the Court. But from this it does not follow that the offer of special oath was made before the Court by Bhagwat Prasad and not by the plaintiff's counsel Shri Pande, learned counsel for the applicant, did not appear in the lower Court and was not in a position to say as to who actually placed the offer before the Court. That being so, and in the absence of anything on record to indicate positively that the special oath was offered by Bhagwat Prasad and no one else, there can be no ground for inferring from the solitary erroneous statement in the order dated the 23rd October 1961 that the "plaintiff examined himself", that the special oath v. as offered by Bhagwat Prasad. From the record it is clear that the oath was offered on behalf of the plaintiff by her counsel.