1. The petitioner was the defendant in Original Suit No. 132/55 on the file of the Munsiff, Civil Station, Bangalore, the Respondent was the plaintiff in that suit. The suit was for the recovery of a sum of Its. 896/- alleged to he due under a pronote executed by the defendant. In his written statement, the defendant alleged the payment of certain amounts on certain specified dates and pleaded that the debt due under the suit pronote had been discharged.
An issue had been framed as to whether the discharge pleaded was true and the suit had been posted for evidence. Thereafter, the application I. A. No. II was filed by the defendant, purporting to he under Section 12 of the Indian Oaths Act, slip-ported by an affidavit stating that if the plaintiff should take a special oath in St. Mary's Church, at the Pulpit, in the presence of the Chief Priest that the amounts as set out in para 2 of the written statement had not been received by him (the plaintiff), then a decree might be passed against the defendant.
As can he seen from the order sheet dated 13-8-1956, the plaintiff agreed to take such an oath and a Commissioner was appointed by the learned Munsiff to administer the oath. A Commission warrant was issued to the Commissioner for the oath being administered at 8 A.M. on 18-3-1956, in St. Mary's Church in the presence of the Chief Priest. But the plaintiff did not turn up to take the oath; instead, the Commissioner received a letter from the plaintiff's counsel to the effect that the plaintiff had filed an application before the Court and requesting the Commissioner to cancel the engagement which had been fixed for 18-3-1956.
The Commissioner, who had not received any further orders from the Court, after waiting near the Church on 18-3-1936, returned the Commission warrant setting out the circumstances due to which he could not execute it. The case then came up before the learned Munsiff on 19-3-1956. The application I. A. No. III which had been filed by the plaintiff, was disposed of by the learned Mnnsiff. I. A. No. III purported to be under Section 151 of the C. P. C. and was supported by an Affidavit.
The plaintiff alleged therein that while he was prepared to take the oath, the defendant should be called upon to deposit the suit amount into court before the plaintiff taking the special oath. The learned Munsiff rejected this application on the ground that this plea had not been put forward by the plaintiff on 13-3-1956 when the plaintiff consented to take the oath.
Thereafter, as can be seen from the order sheet dated 19-3-1956 the plaintiff submitted that he was not willing to take the oath. The case was then adjourned. Two days afterwards when the case was again taken up by the learned Munsiff, the defendant filed the application I. A. No. IV which purported to be under Section 10 of the Indian Oaths Act and Section 151 of the C. P. C. praying that as the plaintiff by his refusal to take the oath, had withheld the only piece of evidence in the case agreed to between the parties, the suit should be dismissed.
The plaintiff filed his objections lo this application and the learned Munsiff after hearing the arguments of both the sides passed an order on 22-5-105G rejecting the defendant's prayer for the dismissal of the suit and directed the parties to adduce evidence. Aggrieved at this order passed by the learned Munsiff, the defendant has preferred the present Revision petition.
Sri R. Suryanarayanaswamy filed Vakalat for the respondent; but he has not put in appearance subsequently and no arguments have been addressed on behalf of the respondent.
2. The contentions which have been urged by the learned Counsel for the petitioner, briefly stated, are to the following effect; when it was agreed between the parties that on the plaintiff taking the special oath the suit claim should' be decreed against the defendant, it was in effect an agreement between the parties that the only ground on which the suit could be decreed was on the plaintiff giving evidence under the, special oath; when the plaintiff failed to take the special oath, he failed to place before the Court the only piece of evidence on the strength of which the suit claim could have been decreed.
The court having rejected the plea of the plaintiff that the decree amount should be deposited into Court before the plaintiff could be called upon to take the special oath, it followed that the plaintiff did not have any proper grounds for refusing to take the special oath. The plaintiff not having satisfied the court that there were sufficient and proper grounds for his refusal to take the agreed oath, the' Court had no discretion but to dismiss the suit: in having called upon the parties, thereafter, to adduce evidence, the Court has acted with material irregularity and without jurisdiction.
3. The above contentions of the learned counsel, have considerable force. In proceeding to direct the parties to adduce evidence, the learned Munsiff bus placed reliance on the observations made by Mallappa J., to the effect that parties should generally be allowed to withdraw from the agreement to take oath in a temple, if the application for withdrawal is made soon after the agreement and ii a bona fide one.
These observations were made by the learned Judge in a case reported in Mallari Gowda v. Mari Gowda, AIR 1953 Mys 55 (A) and which was a decision of the High Court of the former State of Mysore. A reference has been made, with approval, hy Mallappa J., to an earlier Mysore decision reported in Narayana Setty v. Srikantiah, 4 Mys LJ 217 (B), in which it had been slated that where a party who had offered to be bound by the oath had valid and sufficient grounds to withdraw, the court bad the power to go into the validity or the reasonableness of the grounds urged and if it was satisfied that the party had justifiable grounds to resile, the Court had the power to permit him to withdraw even after the offer had been accepted by the opposite party.
That the Court has the power to permit a party to resile, on the court being satisfied that the party had justifiable grounds for withdrawal can be taken to have been generally accepted, But, after it is agreed between both the parties that a special oath should be taken, it is not open to either of them to claim that he would be entitled, as of right, to resile from the agreement.
Neither party can withdraw on frivolous or insufficient grounds; it is only on a party satisfying the court that there are sufficient Or justifiable grounds for his withdrawal, that the Court has the power to permit a party to resile from the agreement Vide Mahadeo Prasad v. Srjug Prasad, : AIR1952Pat208 (C), the Full Bench decision of the Allahabad High Court reported in Saheb Ram v. Ram Newaz, : AIR1952All882 , and Venkataratnamma v. Satyanarayana, : AIR1957Ori226 (E).
The decision reported in AIR 1953 Mys 55 (A), is distinguishable, on facts, from the present case. In that case, a very valid ground had been urged by the defendant who wanted to resile from the agreement to take the oath. He had filed an application alleging that the opposite party was making elaborate arrangements to humiliate him by inviting the opposite party's followers to be present at the time the oath had to be taken.
Though the trial Court rejected that application of the defendant, it is clear from the report of the decision that the High Court was satisfied that it was in the heat of the moment that the defendant had agreed to take the oath and that it was, only subsequently that the defendant realised the embarrassment to which he would be put by taking it in the presence of the villagers.
It was under those circumstances that the learned Judge took the view that the defendant ought to have been permitted to resile from the agreement. But. in the present case, no application was made by the plaintiff to resile or withdraw from his agreement to take the oath. Even in the affidavit supporting his application I. A. No. III the plaintiff stated that he was prepared to take the special oath provided the defendant deposited the Full decretal amount into Court before the oath was taken.
Therefore, this was not really a case in which the plaintiff sought the permission of the court to resile from the agreement on justifiable grounds. He merely wanted to attach a condition precedent to his taking the oath. The agreement between the parties in regard to the taking of the special oath had become concluded on 13-3-1956 alone and the same had been accepted by the Court which ordered the issue of a commission warrant to the Commissioner.
The plaintiff had no right to subsequently require the defendant to deposit the decretal amount before the plaintiff taking the oath. There was no reason or principle of Taw on which the agreement could have been allowed to be broken by the plaintiff with impunity, without any valid grounds. It cannot, therefore, be said that the learned Munsiff did not act rightly in rejecting I. A. No. III.
The plaintiff did not choose to challenge the correctness of the order passed against him on I. A. No. III, by taking it up in revision. After I. A. No. III was rejected, the lower court afforded a further opportunity to the plaintiff when it asked him on 19-3-1956 whether he was prepared to take the oath. But the plaintiff chose not to avail himself of that opportunity and refused to take the oath.
The plaintiff not having made out any valid grounds for resiling from the agreement his refusal to take the oath was arbitrary. Under these circumstances, there is much force in the contention that the lower Court acted with material irregularity, when it subsequently permitted the plaintiff to resile from the agreement,
As stated in : AIR1952All882 (D), the discretion vested in the Court has to be exercised according to the justice of the case and it cannot be exercised or refused to be exercised at the mere whim or caprice of a party or even of the Court. In allowing the plaintiff to resile at his whim and pleasure, the lower Court has failed to exercise a sound judicial discretion in the matter.
4. One other matter which appears to have weighed with the lower court was that the plain-tiff had not expressly agreed that the suit was liable to be dismissed if he failed to take the oath1. As stated in Umayammai v. Mutbiah Nadar, IT Mad LJ' 99 at p. 100 (F), the agreement to be bound by an oath of 'this kind, is in effect an agreement to treat the evidence given under the oath as the evidence in the case, and to dispense with other evidence.
The defendant having pleaded discharge of the entire suit debt, the parties agreed in the present case that on the plaintiff taking the special oath, the suit claim should be decreed against the defendant. Therefore, the only evidence on the strength of which the plaintiff would have been entitled to claim a decree against the defendant, was the evidence given by him under the special oath according to the terms of the agreement.
If the plaintiff had chosen to take the oath he would have, on the strength of the evidence given by him under that oath, been immediately entitled to a decree and the defendant could not have been heard to say that he should be permitted to adduce any other evidence to prove his plea of discharge.
That being so, it stands to reason that on the plaintiff's failure to put before the court that evidence which alone would have entitled him to a decree, his claim should stand dismissed. In this view of the matter it is immaterial that the plaintiff had not expressly agreed to the suit being dismissed on his failure to take the oath.
Without any valid reason the plaintiff failed, to place before the court his evidence under the Special oath which alone could have entitled him to a decree; the court had no option but to dismiss the suit; it had no discretion to call upon the parties to adduce evidence.
5. For the reasons above stated, the order passed by the lower Court which is under revision, is liable to be set aside. Accordingly, this Revision Petition is allowed with costs and the order of the lower Court is set aside with the direction that the lower Court shall proceed to dispose of the suit in accordance with law.
6. Revision allowed.