1. The facts of the case out of which this Rule has arisen are these; The plaintiffs who are the petitioners and at whose instance the Rule has been issued brought a suit against the opposite party-defendants in the Court of the Munsif at Siliguri. The defendants raised the objection that the cause of action arose within the jurisdiction of the Kalimpong Court and, therefore, the matter was not triable by the Munsif at Siliguri. Evidence was ordered to be produced to decide this question of jurisdiction. On the day fixed for the hearing the defendants challenged the plaintiffs to make a special oath on the Koran agreeing that if the plaintiffs swore on the Koran that the transaction did not take place at Kalimpong they would be bound by the plaintiff's statement. The plaintiffs refused to make the special oath and on this the Court proceeded to order that the plaint should be returned to the plaintiffs to be presented before the Munsif at Kalimpong. His reasons for this order were that as the plaintiffs refused to make the special oath when requested to do so the presumption was that the transaction took place at Kalimpong and not at Siliguri as alleged by the plaintiffs. On appeal to the District Court this order was upheld and the plaintiffs have now moved this Court.
2. Now, this matter comes within Act X of 1873 (the Indian Oaths Act) which provides for a party making a special oath and also for the other party offering to be bound by the statement made on the special oath. Section 12 of the Act further provides that:
'If the party or witness refuses to make the cath...he shall not be compelled to make it, but the Court shall record, as part of the proceedings, the nature of the cath or affirmation proposed, the facts that he was asked whether he would make it, and that he refused it, together with any reason which he may assign for the refusal.'
3. In this case as far as can be seen the provisions of Section 12 have not been complied with, because there is nothing on the record to show why the plaintiffs refused to make the special oath. The learned Advocate who has appeared for the plaintiffs-petitioners contends that the Court was not entitled to presume because the plaintiffs refused to make the special oath that the plaintiffs' case was false and that the case of their opponents was true.
4. The opposite partly contends, on the other hand, that there are authorities for the findings of the lower appellate Court and of the Munsif that if a party refuses to make a special oath the Court may presume the falsity of his case. In this connexion he has relied on two cases--the first is the case of Issen Meah v. Kalaram Chunder Naw 2 Cri.L.R. 476. In this case the plaintiff refused to take oath and apparently on this ground the lower appellate Court reversed the decree of the first Court and dismissed the suit. The learned Judges in appeal held that the plaintiff having refused to take special oath it was competent for the lower Appellate Court to raise adverse presumption against him. It does not appear from the report what reasons were given by the plaintiff for refusing to take the special oath and it is apparent also that besides this special oath there was other evidence on the record, because it was stated that it was partly on this account the lower appellate Court reversed the decree of the first Court and dismissed the suit.
5. The next case relied on is the case of Chintaman v. Skrinivas  22 Bom. 680. This particular point is to be found dealt with at page 685 of 22 Bom. But it is doubtful whether this decision really assists the opposite party. The learned Judge in disposing of this point remarks:
'It will be seen from these sections (the learned Judge is here referring to the sections of the Oaths Act,) that, while a party, who makes an oath as prescribed by his adversary, confers by so doing on his statement the character of conclusive proof, his mere refusal to make the oath does not, under the terms of the Act, justify any legal presumption against him. The refusal is to be considered apparently as a piece of conduct-evidence in the case, to be Judged of along with the other evidence:'
6. In the absence of anything on the record to show the reasons for the plaintiff refusing to make the special oath there is no means of judging whether any inference or presumption can be drawn from the plaintiffs' refusal to do so. Many persons, be they Muhammadans, Hindus, Christians or whatever creed they may profess, have a very strong objection to bind themselves by an oath of any character, let alone of the particular solemn character which the plaintiffs were asked to make in the present suit. The mere fact that a person refuses to make special oath is not by itself sufficient to entitle the Court to presume that his case is necessarily false. His case may be perfectly true and yet for religious reasons he is unwilling to bind his conscience by a particular form of oath There is nothing on the record to show why the plaintiffs were unwilling to take oath and in the absence of anything to show why they were unwilling to make the oath the Court was not entitled to draw an inference adverse to them. I do not think in the circumstances that the learned Munsif was entitled to draw the presumption he had, so far as it appears from the record, and to decide the question of jurisdiction on this mere presumption without taking any evidence.
7. The order of the learned Munsif and of the District Court are, therefore, set aside and the case is sent back to the Munsif who will decide the question of jurisdiction after taking evidence of both parties.
8. The Rule is made absolute. The petitioners are entitled to their costs of this application. Hearing-fee one gold mohur.
9. I agree.