V.S. Deshpande, J.
(1) The plaintiff petitioner had brought the suit on the basis of two pronotes executed in his favor by the defendant respondent each for Rs. 200. He also admitted payment to the extent of Rs 117. The defense was that the real consideration of each of the pronotes was Rs. 100 only and that the defendant had made repayment in excess of Rs. 117. Each party examined itself. While in the witness-box the defendant offerred to be bound by a special oath to be taken by the plaintiff on Ganga Jali. The plaintiff however declined to take the special oath because he has to file many such suits being a professional money-lender and he saw no reason to take special oath.
(2) The trial Court on discussion of evidence found that the defendant had failed to prove that the real consideration of the pronotes was not Rs. 200 but only Rs. 100 and also that he had made repayment in excess of Rs. 117. The trial Court however observed that there was hardly any reason on the part of the plaintiff not to take special oath himself or to suffer special oath on the part of defendant, it took this conduct into account and held that the real consideration of each pronote was Rs. 100 only and dismissed the suit without any order as to costs.
(3) In this revision by the plaintiff petitioner the only question is what was the effect of the refusal of the plaintiff to take the special oath offered to him by the defendant. Section 12 of the Oaths Act, 1873 states that if a party refused to make oath, the Court shall record the nature of the oath and the reasons for the refusal by the plaintiff to take the oath as part of the proceedings. It is true that this circumstance can be taken into account by the Court in appreciating the evidence on record and come to a decision on the questions before it. It is equally true that this circumstance cannot take the the place of evidence and cannot enable the Court to decide the whole case only on the strength of it.
(4) In the present case, the trial Court has already found that on the evidence on record the defendant has failed to prove that the consideration for the pronotes was less than the consideration stated therein. He also failed to prove that he had made more repayment than was admitted by the plaintiff. There was thus absolutely no evidence on record in favor of the defendant. The sole circumstance on which the dismissal of the suit was based is the refusal of the plaintiff to take the special oath for reasons which, according to the trial Court, were not sufficient. As stated above, the refusal to take the oath cannot be the sole circumstance on which the decision of the trial Court can be based particularly because the whole evidence on the record and the presumption that the pronotes were for the stated consideration arising under section 118 of the Negotiable Instruments Act strongly supported the case of the plaintiff. The plaintiff is a professional money-lender and the pronotes were executed for comparatively small amounts of Rs. 200 each. The defendant has not shown himself to be a truthful person inasmuch as he has not proved the repayment alleged by him and he did not even care to summon the witness Shiv Narain through whom the repayment was alleged to have been made. A person who has no defense on merits can simply try to bring the plaintiff into disrepute or lower the dignity of the plaintiff by asking him to take a special oath so that the defendant could say that it was only because the plaintiff demanded to take special oath that the defendant admitted the claim by being bound by the special oath. If the plaintiff were to take special oaths in every case filed by him his reputation would be completely destroyed as he has to file numerous suits as a money-lender. No reasonable person, thereforee, could have come to the conclusion that the plaintiff could not have good reasons not to take the special oath. The decision of the trial Court was based on no evidence at all and was without jurisdiction.
(5) The revision petition is, thereforee, allowed ; the decree of the trial Court is reversed and the suit of the plaintiff stands decreed. The parties shall bear their own costs in both the Courts.