(SETH) RAMESHWARDAS Vs. GOPIJI

JUDGEMENT

(1.) GRILLE , A.J.C. 1. The plaintiff filed a suit to recover Rs. 38 in respect of cotton seed which he claimed to have sold to the defendant. The plaintiff produced his account books and proved them and they substantiated his case. The defendant however offered him the gangajal oath and he refused to take it on the ground that he would lose his ijjat. The learned Judge of the Court of Small Causes has stated that the defendant impressed him more than the plaintiff and the only way to meet the excessive claims of people like the plaintiff was by offering a special oath; and despite the production and proof of the account books on which no adverse comment has been made, the learned Judge drew an inference against the plaintiff owing to his refusal to take the special oath and dismissed the plaintiff's claim except for a trifling amount which the defendant admitted. The plaintiff now applies in revision asking that his claim be decreed in full.

(2.) IT has been laid down in Sukhdeo v. Ganesh (1911) 7 NLR 50 that refusal to take a special oath is conduct which the Court is entitled to consider along with other evidence in the case, but I do not consider that it is possible to hold that the refusal should automatically be allowed to outweigh the positive evidence which has been adduced. The fact that the plaintiff is a petty trader and has not paid income-tax for many years does not make it less derogatory for him to take a special oath. The plaintiff has produced his account books and it is to be noted that the defendant called on him to produce them and he had given all the evidence necessary to support his case. It should, in my opinion, have attracted the lower Court's attention that the action of the defendant in offering the special oath was for the purpose of placing the plaintiff in an awkward position. The plaintiff considered that he had proved his case, as indeed he had done, without the necessity of accepting an oath which he considered derogatory. His case is that it was both unnecessary and degrading. There was no justification for the Subordinate Judge's remark that the offer of a special oath is the only way for people like defendant to resist the claims of their creditors. The plaintiff had to prove his case as any other plaintiff, and but for the offering of the special oath no doubt the learned Subordinate Judge would have considered the case proved. His being impressed by the defendant seems to me to rest on no basis except that the defendant offered the plaintiff the oath and the plaintiff refused to take it. Treating the refusal on the basis of evidence its effect against the plaintiff is in the circumstances of the slightest, and the decision of the Court in disallowing the greater part of the plaintiff's claim appears to me wholly against the weight of the evidence.

(3.) THE plaintiff's claim is decreed in full with costs. Pleader's fee in this Court Rs. 20.