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Kabedali Mandal Vs. Dasura Mura and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Reported inAIR1933Cal116
AppellantKabedali Mandal
RespondentDasura Mura and ors.
Excerpt:
- .....as stated by the petitioner. it was after the court had asked the parties if they wished to take special oath and neither party took any oath, but both parties agreed to take special oath, that the court proceeded to record evidence and decided the case on its merits. taking for granted that the procedure adopted by the munsif was as represented in the affidavit of the opposite parties, it still appears that the court took the initiative in suggesting that the parties should take special oath whereas under section 8, oaths act, the initiative should come from the parties and not from the court and it is only under such conditions that special oath can be administered under section 9. inasmuch as it is possible that the learned munsif may have been influenced by what took place in.....
Judgment:

Jack, J.

1. This rule has been issued on the opposite party to show cause why the order of the Munsif, Second Court of Bogra, dismissing the plaintiff's suit on a money bond should not be set aside and a re-trial ordered on the ground that the procedure adopted by the Munsif was very irregular inasmuch as he asked the parties to swear touching books which he represented to them to be sacred books and allowed his decision to be influenced by the refusal of the plaintiff to swear touching those books. The opposite party had put in an affidavit in which they state that this took place not after the evidence was recorded as stated by the petitioner. It was after the Court had asked the parties if they wished to take special oath and neither party took any oath, but both parties agreed to take special oath, that the Court proceeded to record evidence and decided the case on its merits. Taking for granted that the procedure adopted by the Munsif was as represented in the affidavit of the opposite parties, it still appears that the Court took the initiative in suggesting that the parties should take special oath whereas under Section 8, Oaths Act, the initiative should come from the parties and not from the Court and it is only under such conditions that special oath can be administered under Section 9. Inasmuch as it is possible that the learned Munsif may have been influenced by what took place in reference to this special oath, I think in the interests of justice a retrial should be ordered. The order of the learned Munsif is accordingly set asider and the suit remanded for retrial by some other Court. Costs of this rule will abide by the result, hearing-fee being assessed at one gold mohur.


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