Skip to content


Jokhu Vs. Bhaiya Lal and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad High Court
Decided On
Case NumberSecond Appeal No. 1390 of 1948
Judge
Reported inAIR1959All93
ActsCode of Civil Procedure (CPC) , 1908 - Order 23, Rule 3 - Order 32, Rule 7; Oaths Act, 1873 - Sections 9, 10 and 11
AppellantJokhu
RespondentBhaiya Lal and ors.
Appellant AdvocateShanker Sahai Verma, Adv.
Respondent AdvocateMajeeduddin, Adv.
Excerpt:
.....in part - agreement is different from agreement contemplated by order 23, rule 3 - next friend or guardian to suit entering into agreement under oaths act - leave of court referred to in order 32, rule 7 not required. - - on the basis of that statement the court had dismissed the suits on 3-11-45. 3. the suit that has given rise to this appeal was instituted by the respondents through their father bechu lal as their guardian, for cancellation of the two decrees mentioned above on the grounds of gross negligence of ram naraiu guardian and his failure to obtain leave of the court under order 32, rule 7, c. it is obvious that the words 'agreement or compromise' refer to the same words used in order 23, rule 3 and that there can arise no question of a next friend's or guardian's failure..........decree follows immediately. the suit will still have to be decided by the court. the effect when a suit is compromised is quite different; the suit is decided by the compromise, the court has to give no decision or judgment and it has simply to pass a decree. the conclusive proof supplied under section 10 may be of only one of the matters in issue, in which case the other matters will await the decision of the court. the statement made on the special oath is conclusive proof of the matter stated therein, regardless of its nature. the nature of the statement cannot be foreseen when the offer is made or even when it is accepted by the other party or witness. so long as the statement has not been made on the special oath nobody can say what will be the result of the suit.it is difficult to.....
Judgment:

M.C. Desai, J.

1. This is a defendant's appeal from a decree of the Courts below cancelling the decrees passed under Section 59 of the U. P. Tenancy Act by a revenue Court in suits Nos. 375 and 376 of 1945, on the ground that the said decree had been passed on the basis of statements made by a party under Section 10 of the Oaths Act after accepting an offer made by the guardian of minors who had not obtained the leave of the Court under Order 32, Rule 7, C.P.C.

2. The previous suits under Section 59 of the U. p. Tenancy Act had been instituted by Bhaiya Lal, Misri Lal and Desraj minors (contesting respondents before us) through their uncle and guardian Ram Narain against Jokhu appellant (and three others, who are pro forma respondents before us) for a declaration that they were tenants. It seems that there were two holdings and consequently there were two suits. The title of the contesting respondents depended upon their mother Smt. Chhitra being a daughter of one Anandi, the appellant who was a collateral of Anandi, had denied that she was, and consequently had denied the contesting respondents' title.

The respondents had examined Chhitra and Ram Narain as their witnesses ard then their Mukhtar and Ram Narain had made an offer that if the appellant stated holding Ganges water in his hand that Chhitra was not the daughter of Anandi their suit might be dismissed No. pemission of the Court had been obtained by Ram Narain for getting the suit decided in this manner The offer had been put to the appellant who had accepted it. The appellant had then made a statement with Ganges water in his hand to the effect that Chhitra was not the daughter of Anandi and that the suit of the respondents was false. On the basis of that statement the Court had dismissed the suits on 3-11-45.

3. The suit that has given rise to this appeal was instituted by the respondents through their father Bechu Lal as their guardian, for cancellation of the two decrees mentioned above on the grounds of gross negligence of Ram Naraiu guardian and his failure to obtain leave of the Court under Order 32, Rule 7, C. P. C. The Courts below did not give any finding on the question of negligence, but held that since no leave of the Court had been obtained by Ram Narain, the minor respondents were not bound by the statement made by the appellant Jokhu and that no decrees could be passed on treating his evidence as conclusive proof of the matter stated therein.

4. This appeal came up first before Sapru, J., who on account of conflicting decisions on the question referred it to a Bench.

5. All oaths and affirmations to witnesses are to be administered according to such forms as the High Court may prescribe, but it is open to any witness to offer to give evidence on oath or solemn affirmation in another form; (see Sections 7 and 8 of the Oaths Act): 'If any party....offers to be bound byany such oath.....if such oath.....is made by theother party to, or by any witness in, such proceeding, the Court may, if it thinks fit, ask such party or witness, whether or not he will make the oath***. Provided that no party or witness shall be compelled to attend personally in Court solely for the purpose of answering such question' (See Section 9); if such party or witness agrees to make such oath, 'the Court may proceed to administer it' (see Section 10), and 'the evidence if so given shall, as against the person who offered to be bound as aforesaid, be conclusive proof of the matter stated therein' (see Section 11).

It is clear from these provisions that they relate to an offer by one party to be bound by the special oath made by the other party or by any witness in the proceeding, that the Court is not bound to take notice of the offer, that it may ask the other party or witness but it is discretionary with it not to do so, that if the offer is accepted by the other party or witness and he makes a statement on the special oath, all that will happen is that the statement given by him will be conclusive proof of the matter stated in it and that all the matters excluding the one in respect of which the evidence has been given on the special oath, will still remain open to decision by the Court. Order 23, Rule 3, C. P. C. is to the effect that where a suit has been adjusted, wholly or in part, by any lawful agreement or compromise, the Court 'shall order such agreement, compromise .....to be recorded, and shall pass a decree in accordance therewith'.

What is a compromise is not explained in the Code, but it is clear from the provisions of Order 23, Rule 3 that when a suit has been compromised, the Court is bound to record the compromise and to pass a decree in accordance therewith; the Court is not required to pass a judgment as in other cases. The compromise of the suit dispenses with the necessity of a judgment and reasons for it; no findings are to be given on the issues and after recording the compromise the Court has simply to order that the decree shall follow. A next friend or guardian for the suit is prohibited by Order 32, Rule 7 from entering into any agreement or compromise on behalf of the minor concerned without the leave of the Court.

It is obvious that the words 'agreement or compromise' refer to the same words used in Order 23, Rule 3 and that there can arise no question of a next friend's or guardian's failure to obtain the leave of the Court if there is no agreement or compromise to be recorded by the Court and no decree is to be passed in accordance therewith. We are satisfied that none of the proceedings mentioned in Sections 9, 10 and11 of the Oaths Act amounts to an agreement or compromise within the meaning of Order 23, Rule 3, C. P. C.

6. When a next friend enters into a compromise on behalf of the minor, there is a definite stage at which he is required to obtain the leave of the Court; he must obtain it before entering into the compromise. It is difficult to think of any stage at which he may have to obtain the leave of the Court in a proceeding governed by Sections 9, 10 and 11 of the Oaths Act. The acts in succession that are contemplated by these provisions are (1) making an offer, (2) Court's asking the other party or witness whether he accepts it, (3) its acceptance by the other party or witness and (4) his making the statement on the special oath; one is at the loss to know at what stage the guardian should obtain the leave.

He cannot be required to obtain it before he makes his offer, because the Court may not put the offer to the other party or witness, not being bound to do so; the other acts of putting the offer before the other party or witness etc. are of the Court or of the other party or witness and it is meaningless. to require him to obtain the Court's leave before they are done. The other acts are done in consequence of his own act, and if no leave is required before he does it, it would be illogical to require leave before they are done. The result of the acts is automatic and does not depend upon anything done or not done by any party. If there is no stage at which a next friend can properly be required to obtain the leave, it is a strong proof of the fact that he is not required to do so by the law.

7. All that happens when a statement is made on the special oath under Section 10 of the Oaths Act is that it becomes conclusive proof of the matters stated therein; it does not decide the suit wholly or in part and no decree follows immediately. The suit will still have to be decided by the Court. The effect when a suit is compromised is quite different; the suit is decided by the compromise, the Court has to give no decision or judgment and it has simply to pass a decree. The conclusive proof supplied under Section 10 may be of only one of the matters in issue, in which case the other matters will await the decision of the Court. The statement made on the special oath is conclusive proof of the matter stated therein, regardless of its nature. The nature of the statement cannot be foreseen when the offer is made or even when it is accepted by the other party or witness. So long as the statement has not been made on the special oath nobody can say what will be the result of the suit.

It is difficult to hold that in spite of this uncertainty as to the result of the suit (or even issue), there has been a compromise in respect of the suit (or issue). There cannot be a compromise unless the parties agree as to the final outcome of the matter compromised. There is undoubtedly some agreement in the proceedings under Sections 9, 10 and 11; the offer made by one party that the evidence given on the special oath shall be conclusive proof of the matter stated therein is accepted by the other party or witness; but this is not the kind of agreement contemplated by Order 23, Rule 3, because it is not an agreement or compromise which adjusts the suit wholly or in part. An agreement or compromise contemplated by these provisions must directly adjust the suit wholly or in part leaving no scope for the Court's, exercising its judgment.

Providing for conclusive proof of a matter, or even all the matters arising in the suit cannot be said to amount to adjustment of the suit. A suit may involve two or more subject matters and there may be a compromise in respect of some of them; but there cannot be a partial compromise when it involves onlyone indivisible subject-matter. If the decision of a suit depends upon the findings on several issues, pro-viding for the proof of some of them cannot be said to amount to a partial adjustment or compromise of the suit Even when the procedure of Sections 9, 10 and 11 has been, gone through, the Court is still required to pass a judgment, the decision is of the Court and not of the parties. Even though in respect of the matter stated in the evidence on the special oath, the Court has no discretion and is bound to accept the evidence as conclusive proof, the judgment is still of the Court.

8. In Malak v. Anokh Rai, 18 Pun Re 1891 p 110 (FB) (A), Chengal Reddi v. Venkata Reddi, ILU 12 Mad 483 (B), Baldeo Singh v. Niras Singh, AIR 1946 Pat 272 (C), Sultan Mohammad v. Mehr Khan, AIR 1936 Lah 235 (D), Paras Ram v. Panna Lal AIR 1954 Nag 56 (E), and Sheo Nath Saran v. Sukh-lal, ILR 27 Cal 229 (F), it was held that no leave of the Court is required when a next friend or guardian makes an offer to the other party or witness to make a statement on the special oath. In the cases of Sultan Mohammad (D) and Paras Ram (E) this proposition was qualified by the proviso that the next friend or guardian had an interest in the suit identical with that of the minor represented by him. With great respect we are unable to see any connection between the identity of the interests of the minor and his next friend or guardian in the suit, and the question whether Order 32, Rule 7 applies to the offer or not Whether making the offer amounts to compromising the suit does not depend upon whether the next friend or guardian making the offer and the minor have identical interests in the suit. We have no doubt that if the next friend or guardian is not required by law to obtain the leave of the Court, he will not be required to obtain it even if his interest in the suit is not identical with that of the minor. In the cases of Sheo Nath (F) Sultan Mohammad (D) and Paras Ram (E) it was added that a next friend or guardian is not required to obtain the leave of the Court in the absence of fraud or negligence, here again it was not necessary to import this condition. The question is whether a minor will be bound by the statement made on the special oath by the other party or witness after accepting an offer made by his next friend or guardian without obtaining the leave of the Court, if there was fraud or negligence on the part of the next friend or guardian the decree would be set aside on that ground, whether he had obtained the leave of the Court or not.

It was pointed out in the cases of Malak (A), Sheo Nath (F), Mohammad Mohamood v. Behary Lal : AIR1930Cal463 , Sultan Mohammad (D), Par-bhu Dayal v. Jamil Ahmad, 19 All LJ 911 (AIR 1923 All 160) (H) and Janimal v. Gudhaudas AIR 1957 Nag 47 (I), that when proceedings are taken under Sections 9 and 10 of the Oaths Act there is an agreement between the parties, but only relating to proof of a certain matter and not an agreement of compromise within the meaning of Order 23 Rule 3 In the case of Parbhu Dayal v. Jamil Ahmael (H) this proposition was held to be true in respect of the particular matter about which the other party or witness was to make his statement and not about other matters. In Baldeo Singh s case (C) It was emphesised that in a case governed by Sections 9, 10 and 11 the decision is still of the Court.

In Malak's case (A) it was pointed out that Order 23, Rule 3 does not apply to all the agreements that may be entered into in a suit, when a next friend or guardian enters into an agreement with a legal practitioner or agrees to an adjournment sought by the other party or admits a fact or document produced by the other party undoubtedly no leave of the Court is required, though he does enter into some agreement. An agreement to abide by the statement made on the speeial oath by the other party or witness is similar to an agreement to admit a fact or a document. In Janimals case (I) it was pointed out that the Court has still the discretion not to place the offer before the other party or witness In Baldeo Singh's case (C) and Parbhu Dayal's case (H) it was made clear that the statement on the special oath con-eludes only that matter in respect of which the statement was made and that the other matters remain to be decided by the Court.

9. Shri Majid Uddin sought to distinguish the cases of Malak (A), Baldeo Singh (C), Sheo Nath (F), Mohd Mahmood (G), Sultan Mohammad (D) and Deoraj Misra v. Mt Abhairiji : AIR1927All584 , on the ground that the offer made by the next fnend or guardian in these cases was simply that he would be bound by the statement made by the other party on a particular matter and not that the whole suit be dismissed or decreed In the cases of Parbhoo Dayal (II) and Janimal (1) the offer was that the whole suit be dismissed or decreed if the other party made a certain statement on the special oath. In Parbhoo Dayal's case (H) it was held by a Bench of this Court that when an offer is that the whole suit be dismissed if the other party makes a certain statement on the special oath such offer amounts to a compromise it there are issues other than that in respect of which the statement is to be made.

In the case before us there was only one issue, namely whether Chhitra was daughter of Anandi If she was, the suit was bound to be decreed, and if she was not, it was bound to be dismissed It the appellant stated on the special oath and she was not, the Court had no option but to find that she was not, and dismissal of the suit would follow as a matter of course When the guardian made the offer that if the appellant stated on the special oath that she was not, the suit be dismissed he meant nothing more than that he would be bound by the statement, or that it would be conclusive proof of the fact that she was not, there were no other material issues and he could not have meant that other issues should not be decided and the suit be dismissed.

Therefore, whatever might have been the words actually used in the offer it was an offer simply to be bound by the statement made by the appellant. We are not called upon to decide whether the offer would amount to a compromise it there were issues other than the issue in respect of which the statement on the special oath was made The case of Parbhu Dayal (H) is, therefore, distinguishable So also is the case of Deoraj Misra (J) m which the controversy before the Court was whether a minor is bound by an offer made by his next friend or guardian, the question of the effect of the next friend's or guardian's failure to obtain the leave of the Court was not discussed at all.

10. We hold that there was no compromise ofthe suits, either in whole or in part, by whatever agreement was entered into and that there was nonecessity for Ram Narain's obtaining the leave of theCourt referred to in Order 32 Rule 7 The decree, therefore, could not be set aside on this ground.

11. The Courts below ought to have given their findings on the question of gross negligence, on account of their failure it is necessary to remit the issue for a finding.

12. We set aside the decree passed by the Courts below and direct the trial Court to give its findinig on issue No. 2 after taking additional evidence if any is offered It shall return the record with its finding within three months The office shall send the record to the trial Court at once Objectionagainst the finding may be filed within 10 days ofthe intimation of its receipt in this Court.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //