Rajmal Ramnarayan Vs. Budansaheb Adulsaheb

practice-procedure-suit-defence of wagering contract-parties should appear as witnesses on their own behalf-omission-court can raise presumption.;the plaintiff sold bales of yarn to the defendant, who at a later date resold them to the plaintiff at lower rates. the plaintiff sued to recover the difference between the two rates as damages. the defendant contended, that the plaintiff was not entitled to recover, the contracts being wagering. at the hearing the court examined both the plaintiff and the defendant: neither of them was cross-examined by the other side. as neither party produced any evidence, the court decided the suit on the pleadings and statements of parties and dismissed the suit, on appeal:-;that the suit should be decreed inasmuch as the defendant had absolutely failed to prove, what he was bound to prove in order to succeed in his defence, that the suit transactions were of the nature of wagering? contracts.;if the defendant does not choose to go into the witness-box on his own behalf that is a matter for himself to decide. in an ordinary case, however, the court is entitled to consider that as a point against the defendant, the plaintiff is not bound to issue a summons to the defendant and unless the defendant gives evidence on his own behalf so as to give the plaintiff an opportunity of cross-examining him, then the court is entitled to in everything against the defendant. - - thus the defendant has absolutely failed to prove what he was bound to prove, in order to succeed in his defence that the suit transactions were of the nature of wagering contracts......regards the first issue is thrown on the defendant. no additional evidence is to be given just now on behalf of the defendant.2. it was very clear that the onus of proving that the contracts were wagering lay on the defendant. all that was said in his deposition before the court was that the contracts were of a wagering nature, that of course was not proof of the fact asserted. he would have to show that at the time the contract was entered into, the common intention was not to give and take delivery but to pay differences. the purshis continues:-the defendant reserves the evidence which he is entitled to give by law by way of rebuttal against the evidence that may be given on behalf of the plaintiff.3. the defendant also seems to have considered that he was not bound to go into the witness-box to be cross-examined by the plaintiff, but that the only way for the plaintiff to get his evidence was by issuing a summons to the defendant himself. if the defendant did not choose to go into the witness-box on his own behalf, that was a matter for himself to decide, but in an ordinary case, the court is entitled to consider that as a point against the defendant. certainly if a defendant says 'i am not going into the witness-box unless i am summoned by the plaintiff' he puts himself in the wrong. for the plaintiff is not bound to issue a summons to the defendant, and unless the defendant gives evidence on his own behalf so as to give the plaintiff an opportunity of cross-examining him, then the court is entitled to infer everything against the defendant. thus the defendant has absolutely failed to prove what he was bound to prove, in order to succeed in his defence that the suit transactions were of the nature of wagering contracts. the result must be that the appeal must be allowed and the plaintiff will have a decree for rs. 18,201-4-0 and costs throughout.