BHUBNESHWARI CHAND LAL CHAUDHURY Vs. SUKAL

JUDGEMENT

(1.) THIS application in revision is directed against an order dismissing a suit to recover a sum of RS. 500 due under a promissory note. The plaintiff in the suit is a well known zamindar in the Furnea district, and soon after the defendant entered appearance he put in a petition stating that, if the plaintiff would come into Court and state on solemn affirmation that be had borrowed the money, the suit might forthwith be decreed with costs against him. The learned Munsif directed the plaintiff to appear. The plaintiff offered to give evidence on commission but declined to appear in Court on the ground that neither he nor his ancestors for several generations bad done so, and that it would be damaging to his prestige. The learned Munsif eventually made an order dismissing the suit on the ground that the plaintiff had disobeyed his order requiring him to attend in person. It is quite clear that, in substance, if not on the face of it the application which the defendant made was an application under Section 8, Oaths Act (X [10] of 1873). Now, the proviso to Section 9 of the Act prohibits a Court from compelling a party to attend personally in order to state whether or not he is prepared to take the oath which the other party to the suit calls on him to take; in other words, the action taken by the learned Munsif initially was without jurisdiction and, it, therefore, I think necessarily follows that his order dismissing the suit was also an order without jurisdiction, or at all events, that in making it he acted with material irregularity. Section 12, Oaths Act makes it clear that, 'while a Court may take into consideration the refusal of a party to make an oath or take a solemn affirmation it must after recording the reasons given by the party, proceed with the trial of the suit. Mr. Anwar Ahmad referred to Sri Prabhu v. Dwarlca Prasad, 4 p. l. j. 152 : (A. I. R. (6) 1919 pat. 36) a decision on which the Courts below also relied. It appears, however, that in that case, the defendant wished to examine one of the three plain. tiffs as a witness, and presumably having been examined-in-chief, this plaintiff would have been cross-examined by the pleader appearing on behalf of the other two plaintiffs. In the present case the defendant did not wish to examine the plaintiff as a witness. What he wished was that the plaintiff should be required to appear in Court to state whether or not be was prepared to make a certain statement on solemn affirmation and if be was prepared, to make the statement. The application must, in my opinion, be allowed with costs. The order of the trial Court is set aside, and it is directed to proceed with the trial of the suit and dispose of it according to law. Hearing fee is assessed at two gold mohurs.