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Judgment
In the present case, the onus of proof is on the 1st defendant, not on the plaintiff; and this distinguishes the present case from that relied on by the Subordinate Judge, Umayammai v. Muttiah Nadar 17 M.L.J. 99 . The oath has not in fact been taken by the defendant, and consequently the defendant''s contention as to interest which was to have been proved conclusively by the defendant''s oath has not been proved. Neither the Oaths Act nor any of the decisions referred to in the argument, Thoyi Ammal v. Subbaroya Mudali, 22 M.L 234; Majan v. Patbukutti 31 M.O 1 : 17 M.L.J. 545 : 3 M.L.T. 98 are authority for holding that in such circumstances that fact which was to have been proved by the oath must be taken to have been duly proved. No doubt a party ought not without good reason to be allowed to resile from his agreement, but if he does resile, the law does not provide that a decree may forthwith be given against him. Apparently, the only course open to the Court in the present case was to proceed with the trial of the suit in the ordinary way drawing such inference as might be proper from the conduct of the defaulting party and mulcting him in costs that should be considered appropriate. We set aside the decree of the lower Appellate Court and remand the suit to the Court of first instance, for the trial of the 2nd issue, the only matter now in dispute and for disposal according to law. The plaintiff must pay all costs hitherto incurred in all the Courts whatever the result.