1. This is an appeal against an order of remand. The suit was filed for an injunction and other reliefs. When the case came on before the District Munsif, the parties agreed to abide by the oath of the plaintiff and the question is what the nature of that agreement was. The note of the District Munsif is as follows (p. 5) 25th August 1925:
On the application of both the parties the suit is advanced to 31st August 1925. Defendants' vakli challenges the plaintiff to take plain oath in open Court that the allegations in the plaint are true and the allegations in the written statement are not true. Plaintiff's vakil accepts the challenge and says that the plaintiff will take oath on 31st August 1925. Suit adjourned to 31st August 1925.
2. We find in the diary the following entry as to what took place:
Defendants' vakil challenges plaintiff to take oath. Plaintiff took oath. Decreed for plaintiff.
3. An appeal was filed by defendants on the ground that what was agreed to was not the order as referred to in the Judge's note, but that each allegation in the plaint and each allegation in the written statement were to be put to the plaintiff and that he should affirm on oath that his allegations are true and the allegations of the defendant are false. It is also contended in the affidavits filed in the appellate Court that the case was adjourned for the defendants' pleader to formulate questions and that the oath was to be taken in respect of each question so formulated. The plaintiff's vakil filed an affidavit denying any such agreement and stating that what took place was what was agreed to and what took place in Court is evidenced by the Judge's note. We may point out that, although the defendants were present when the oath was administered, there is nothing on record to show that they took any objection; they filed no affidavit in the Munsif's Court stating what took place was not what they agreed to and asking for a reconsideration of the view, and even in the appellate Court they filed no affidavit as to what took place then. It is the vakil who states that the defendants came to him afterwards and represented that in spite of their objections the oath was taken by the plaintiffs. The Subordinate Judge had before him the note of the Judge and the proceedings in Court and the affidavits filed by the pleaders on each side, the pleader for the plaintiff contradicting the allegations made by the pleader for the defendants. We also find that these affidavits were put in more than a year after the disposal of the suit in Court. Having regard to these facts, the question is whether the Subordinate Judge was justified in accepting the affidavit of the vakil for the plaintiff, and in reversing and remanding the suit for disposal on the merits. We think that, in cases like this, where there is a direct contradiction between the affidavit of the two pleaders and where the affidavits are; filed after a long time has elapsed, that proper thing to do would be to rely upon the note the Judge made at the time and presume that what took place in the presence of the Judge who must have been aware of the facts and the nature of the agreement was what was agreed to between the parties. The Judge had no interest or motive in supporting the allegations of one side or the other and we must presume he acted properly in administering the oath in accordance with what the parties agreed to. We are unable to uphold the decision of the Subordinate Judge.
4. It is argued by the respondents that even in the Subordinate Judge's Court the defendants agreed to abide by the oath which the plaintiff would take if it was according to their version of what the agreement was and the plaintiff refused to take the oath. We do not think this is a ground for drawing any adverse inference against the plaintiff. If the agreement as to the oath was as stated by him, the plaintiff was not bound to take an oath in a different form, and we think the remand was no; justified. We allow the appeal and set aside the order of remand. The decree of the Munsif will, therefore, stand. The respondent will pay the appellant's costs of this appeal and costs before the Subordinate Judge.