1. This is a first appeal by one Mt. Chand Rekha whose suit for Rs. 32,000 has been dismissed by the learned Subordinate Judge of Aligarh. The sole defendant is B. Janki Prasad, who is an advocate of that Court. The following pedigree is given in the plaint:
Nand Kishor Mohan Lal
Married about 1902 to |
Mt. Chand Rekha, Janki Prasad,
2. The plaint was filed as a pauper, and it alleged that Nand Kishor and Mohan Lal worked jointly as contractors but learned Counsel states that he does not claim that these two brothers formed a joint Hindu family. The plaint further sets forth that at the time of the marriage of the plaintiff to Nand Kiahor the father of the plaintiff insisted on Nand Kishor executing a deed of gift to the extent of Rs. 30,000 which was in deposit with Mohan Lal in favour of the petitioner. It was further set forth that at some later poriod two thousand rupees worth of ornaments had been deposited by the plaintiff with Mohan Lal for safe custody. The plaint stated that plaintiff was entitled to got her deposit; 'money from the defendant. The cause of action was stated to arise on 1st November 1929 when the last demand was made from the defendant. The relief asked for was that a decree for Rs. 32,000 might be passed in favour of the plaintiff 'against the defendant. Now the plaint did not sot forth what the Rs. 32,000 consisted of and it is left for the Court to infer that the suit is for the return of Rupees 30,000 deposit and Rs. 2,000 the value of the ornaments. The written statement of defendant denied that the plaintiff had ever been married to Nand Kishor, or that any deposit of ornaments or cash had been made with the defendant. Evidence was taken before the lower Court, and the finding of the Court was that the plaintiff had not proved that 'she was married to Nand Kishor, and that no ornaments or deposit or cash were proved to have been deposited. There was no deed of gift produced for the plaintiff or Parcha in favour of Mohan Lal. The plaintiff's case was singularly lacking in written evidence and in oral evidence which consisted merely of the statements of herself and of Nand Kishor. An appeal was filed against a decree of the learned Subordinate Judge on five grounds of fact. When the appeal was presented for admission an entirely different ground was taken by learned Counsel to the effect that the plaintiff applied
to abide by the oath of the defendant before the lower Court if taken on Ganges water in hand, and the defendant refused to do so,
and therefore a presumption would arise under Section 8, Oaths Act. This is the only ground which learned Counsel has argued in this appeal, and no argument has been made on any of the five grounds in the memorandum of appeal. Learned Counsel bases his argument on an application of 14th July 1930, sprinted on p. 5 of the record. In this application para. 3 is as follows:
If the Court does not hold the evidence to be sufficient, Babu Janki Prasad should swear by the Ganges before the Court and say I may be ruined if I speak lie or falsely swear by the Ganges.
3. Now it is to be noted that this paragraph, which is the only one dealing with the oath, does not say that the] plaintiff offers to be bound by the statement on oath made by the defendant. Therefore in our opinion this offer would not come within the terms of Section 9, Oaths Act, and the Oaths Act would not apply. In fact in the proceeding the Court did not refer to the Oaths Act, nor did it record any proceeding under Section 12, Oaths Act. All that happened was that the Court stated in an order that the defendant was not willing to give an oath on. Ganges water, and that he could not be compelled to do so. There was no proceeding before the lower Court about the plaintiff applying under the Oaths Act and any presumption being drawn from the action of the defendant. We may also note that para. 3 of the application of the plaintiff does not, in our opinion, conform to Section 9, Oaths Act, for another reason, because para, 3 states that if the Court does not hold the evidence to be sufficient then defendant should take an oath on Ganges water. An application for an oath under the Oaths Act must be an application without any condition such as if the Court does not hold the evidence to be sufficient. It is not open to a party to ask the Court to adjudicate and if the Court adjudicates against them then to ask the Court to start a separate proceeding under the Oaths Act. There is no further point in the appeal. Accordingly we dismiss this appeal with costs. The court-fee payable on this appeal must be paid by the appellant as if she had not been permitted to appeal as a pauper. The respondent's counsel has undertaken to pay the deficiency in printing within two weeks.