Knox, Officiating C.J. and Aikman, J.
1. In the Court of First Instance the plaintiff, now respondent, offered to abide by any statement which the appellant might make on oath to be taken in this form, namely, that holding the arm of his son he should state what he could say on the matters asked of him. The appellant consented. The case was adjourned to enable the appellant to bring his son, who was not then in Court. On the day to which the case stood adjourned, the appellant appeared with his son, and the respondent then applied to he released from the proposal he had made. The only reason he could give was that he had made the proposal without understanding what he intended, and adding that he was of opinion that the appellant would not tell the truth. The Court refused to entertain the application, and the defendant made the statement in the form proposed by the respondent. The result was that the Munsif dismissed the respondent's suit, the statement made by the appellant upon the oath proposed being fatal to the claim.
2. We have no hesitation in saying that the oath proposed should never have been administered. It was an oath understood and purporting to affect a third person, and such an oath under Act No. X of 1878 is not an oath which could under any circumstances be lawfully administered. Since, however, it was administered, and the statement made, we are of opinion that the evidence so given was rightly considered conclusive proof of the matters stated. The peculiar nature of the oath and the effect which is attached to it by Hindus are such that any statement made upon such an oath would not, we are quite sure, be lightly made. It is, however, contended that, as the respondent, before the oath was administered, asked to withdraw from his proposal, he should have been allowed to withdraw, and the evidence not taken in the manner proposed by him. In support of this contention we were referred to the case of Lekh Raj Singh v. Dulhma Kuar I.L.R. 4 All. 302. In that case one of the Judges, Oldfield, J. said that he was aware of no rule under which a submission to reference of this kind, viz., a statement made under the peculiar circumstances set out in Section 8 of Act No. X of 1873, might not be revoked before the referee has given his evidence in pursuance of it. It appears to us that this is not the stand-point from which a proposal of the nature set out in Section 8 should be considered. When the proposal has been made by a party to a proceeding and the Court in pursuance of the proposal has asked the party required to take a particular form of oath whether he will do so, and the party so asked has agreed to take the oath, then, under such circumstances, no permission should be accorded to the party who made the proposal to withdraw from it, except upon the strongest possible grounds proved to the satisfaction of the Court to be genuine grounds for revoking the proposal. No such grounds were shown in the present case and the evidence given was, in our opinion, evidence by which the respondent was bound.
3. The respondent appealed against the order of the Munsif, and the District Judge, allowing the appeal, passed an order of remand under Section 562 of the Code of Civil Procedure, directing the Court of First Instance to try the suit on its merits. The present appeal is from that order. For the reasons set out above we are of opinion that the appeal in the Court below should not have succeeded. We set aside the order of remand and restore the decree of the first Court, dismissing the suit. The appellant will have his costs in this Court.