JUDGMENT

Terrell A-G CJ:

The plaintiff (respondent) was a ledger clerk employed by the defendant, and his claim is for the sum of $926 for wages alleged to be due to him for the period of his service. Before Raja Musa J the plaintiff recovered judgment for the amount claimed, and the defendant has appealed.

The material portions of the plaint are as follows:

"1. The plaintiff is a "Kanakka Pillay" (ledger clerk) and resides at Kuala Selangor. The defendant is a money lender and also resides at Kuala Selangor.

(2) On or about 12 June 1935 the defendant engaged the plaintiff as a kanakka pillay inter alia on the following terms:

(a) The plaintiff was to be provided with free board and lodging and clothing; and

(b) a salary of $30 per month.

(3) The plaintiff was to work at defendant's Kuala Selangor office and it was agreed that plaintiff's salary was to be kept by defendant on deposit and paid to plaintiff when his services were terminated".

These allegations are met by the following paragraphs in the defence:

1. Paragraph 1 of the statement of plaint is admitted.

2. With regard to paras. 2 and 3 of the Statement of Plaint, in 1935 one ALPSTAR. Kasi Chettiar of Klang informed the defendant that the plaintiff had no work and wished to gain experience in an office and requested the defendant to take the plaintiff into his office for that purpose which the

defendant agreed to do it being agreed that the defendant should provide the plaintiff with free board and lodging and with such clothing as it is usual to give employees in Chettiar firms.

3. Save as is admitted in cl 2 hereof the defendant denies the allegations in paras. 2 and 3 of the Statement of Plaint and in particular denies that he at any time agreed to pay the plaintiff a salary".

I have set out the relevant portions of the pleadings as Mr. Ramani (defendant's Counsel) largely rested his case on the suggestion that the defence was not a simple traverse of the plaintiff's allegation, but was in fact a confession and avoidance, that the employment being admitted, there was an onus upon the defendant to establish the case which he had set up, and that the learned trial Judge having found that this onus was not discharged by the defendant, the plaintiff was rightly entitled to judgment.

In my opinion this interpretation of the pleadings is not well founded. The question at issue is not whether the plaintiff was employed, but the terms of his employment. 'Confession and avoidance' under the old Common Law rules of pleading, would be a proper description of a defence which admitted that the plaintiff had been employed upon the terms claimed, but alleged that the plaintiff had been paid in full, or signed a release for sufficient consideration. The defence here is something quite different. The terms of employment alleged by the plaintiff are completely traversed, and put in issue in para. 3 of the defence. In addition, in para. 2, the defendant sets up a story of his own. He has accordingly two alternative answers to the plaintiffs claim. If he can establish his version, that of the plaintiff must necessarily be disbelieved, but his principal defence is that the plaintiff's story is untrue.

The burden of proof under s. 102 of the Evidence Enactment is upon the person who would fail if no evidence at all were given on either side, and accordingly the plaintiff must establish his case. If he fails to do so, it will not avail him to turn round and say that the defendant has not established his. The defendant can say "It is wholly immaterial whether I prove my case or not. You have not proved yours" (see the judgment of the Privy Council in Raja Chandranath Roy v. Ramjai Mazumdar, six Bengal Law Reports, p. 303). These considerations are important in view of the very great importance which the learned Judge attached to the fact that the defendant had not called as his witness one Kasi Chettiar who was in his opinion a necessary witness for the purpose of establishi