1. This is a first appeal from an order of remand passed by the learned Civil Judge at Moradabad on 24-11-1948, in the following circumstances.
2. The appellant Mohan Lal brought a suit for rendition of accounts in the Court of the Munsif at Moradabad against two defendants, Roop Kishore and Suraj Mai, the former of whom was described as the, principal defendant and the latter as a pro forma defendant. He alleged that the principal defendant had entered into a contract of partnership with him in order to carry out some contracts which were to be obtained from the Public Works Department. The business was carried on for sometime, but the partnership was ultimately dissolved by consent of parties. The principal defendant was in charge of the partnership fund and had the duty of maintaining the accounts, but he had failed to render any accounts to the plaintiff. The principal defendant pleaded that he was not the accounting party and also that all accounts between the parties had already been stated' and adjusted. After two unsuccessful attempts to get the dispute settled, by arbitration, the principal defendant made an application on 14-11-1942, in which he offered to abide by the statement of the plaintiff upon a special oath proposed by him. Upon this application, the Court proceeded under Section 9, Oaths Act (10 [x] of 1873) to ask the plaintiff if he was prepared to make the special oath proposed by the principal defendant. On 17th November the plaintiff appeared in person before the Court and made a statement that he was prepared to make a statement after taking the oath proposed by the principal defendant. For some reason, which is not apparent on the record, the Court did not proceed at once to administer the oath to the plaintiff and to record his statement but fixed 25th November* for that proceeding. When the case was taken up on that date, the defendant made an application in which he prayed that the Court should not proceed to administer the oath to the plaintiff and to record his evidence but should either decide the suit itself or appoint an arbitrator. As a reason for retracting his offer which had already been accepted the only reason given by the defendant in this application was that he had come to know from certain persons that the plaintiff had become dishonest and would, therefore, take the oath dishonestly. The Court did not immediately pass any order upon that application but proceeded to administer the oath to the plaintiff and to record his statement. On the basis of that statement the learned Munsif delivered judgment in the suit in which he decreed the plaintiff's claim for a sum of Rs. 1600. In this judgment the learned Munsif referred to the application made by the defendant on 25-11-1942, in which he wanted to resile from his offer and made the following observation:
I may also point out that the defendant has failed to adduce any good or valid ground for resiling from the agreement. He has stated in his application that he has learnt from several person that the plaintiff would take the special oath and make his statement with dishonest motive. Such a vague allegation can always be made by a party. It can never be taken to be a valid ground. I am therefore, of opinion that the defendant is not entitled to resile from the contract.
It appears from the judgment that in the course of the argument reliance was placed on behalf of the defendant on a decision of this Court inRup Singh v. Arjun Sen : AIR1935All276 , in which it was held that
where the defendant agrees to abide by the statement on oath of the plaintiff it is open to the defendant to resile from the agreement before the statement on oath has been taken. No conditions are attached to the desire to resile and it is not necessary that the Court should be satisfied that the party had good reasons for resiling.
On the other hand the plaintiff referred to another case of this Court in Siya Ram Das v. Jagannath : AIR1933All463 , where it was held that if an offer made by a party to abide by a statement made on special oath by his opponent is accepted by the letter and the acceptance is duly communicated to the party making the offer, a binding agreement comes into existence and the party making the offer cannot revoke it. The learned Munsif accepted the authority of the latter case finding that the same view was taken by the Lahore High Court in the case in Allah Bakha v. Punnun ('41) 28 A.I.R. 1941 Lah. 173, and that the view taken in the former case of this Court had been dissented from by the Nagpur High Court in Motiram Hiraman v. Karu Fakira ('37) 24 A.I.R. 1937 Nag. 212. The learned Civil Judge in appeal took the contrary view and accepted the authority of Rup Singh v. Arjun sen : AIR1935All276 . After holding that in view of the decision upon which he had relied it was not necessary to determine whether the defendant had good reasons to resile from his offer, the learned Civil Judge added the following:
All the same evidence having been taken in this connection, I think that appellant's application was based on bona fide and good reasons. The subsequent conduct of the respondent in this Court and after it, does not impress me well and I regard it a matter of great doubt if he acted honestly even when he spoke on special oath. That being my view, I hold that the defendant-appellant was justified for entertaining apprehensions as far back as 25th November 1942.
Taking this view, the learned Civil Judge set aside the decree passed by the learned Munsif and remanded the case for admission to its original number and disposal in accordance with the law. It is from this order of remand that the plaintiff Mohan Lal has come up in appeal to this Court.
3. The first question for consideration is : Whether the defendant had any right in law to retract the offer made by him. The appellant contends that the answer to that question must be in the negative and he relies upon the authority of Siya Ram Das v. Jagannath : AIR1933All463 to which reference has already been made. The relevant sections of the Oaths Act which have to be considered in this case are Sections 8, 9, 10 and 11. Section 8, which authorises the Court to tender certain special oaths, runs as follows:
If any party to, or witness in any judicial proceeding offers to give evidence on oath or solemn affirmation in any form common amongst, or held binding by, persons of the race or persuasion to which he belongs, and not repugnant to justice or decency, and not purporting to affect any third person, the Court may, if it thinks fit, not with standing anything hereinbefore contained, tender such oath or affirmation to him.
Section 9 proceeds to state:
If any party to any judicial proceeding offers to be bound by any such oath or solemn affirmation as is mentioned in Section 8, if such oath or affirmation is made by the other party to, or by any witness in, such proceeding the Court may, if it thinks fit, ask such party or witness, or cause him to be asked, whether or not he will make the oath or affirmation.
We notice that the matter rests entirely in the discretion of the Court. Even, if an offer is made by one party to abide by the statement made by his opponent on a special oath proposed by him such as is referred to in Section 8, the Court is not bound to proceed to inquire from the party to whom the offer is made whether that party is prepared to make the proposed oath or not. The Court may, if it thinks fit, refuse to proceed to make any such inquiry under Section 9 and the matter must end there. The party making the offer has no right in law to ask the Court communicate that offer to the opposite party. On the other hand, if the Court thinks fit, it may decide to proceed under Section 9 to ask the party to whom the offer is made whether or not he will make the proposed oath. If the Court exercises its discretion in favour of making an inquiry as contemplated by Section 9, the procedure which it has to follow thereafter is governed by Section 10 which runs, as follows:
If each party or witness agrees to make such oath or affirmation, the Court may proceed to administer it, or, if it is of such a nature that it may be more conveniently made out of Court, the Court, may issue a commission to any person to administer it, and authorize him to take the evidence of the person to be sworn or affirmed and return it to the Court.
We notice again that even after the Court has made an inquiry under Section 9 it is not bound under the law to proceed to administer the proposed oath. The matter still lies in the discretion of the Court and it may refuse to administer the oath. If the Court proceeds in its discretion to administer the oath and to record the evidence of the person to whom the oath is administered, certain results follow which are provided for by Section 11 in the following terms:
The evidence so given shall, as against the person who offered to be bound as aforesaid, be conclusive proof of the matter stated.
Now, the question which arises for consideration is : What is the legal position of the parties when an offer made by one to the other is accepted by the latter upon an inquiry made by the Court under Section 9, Oaths Act? One view is that a binding agreement comes into existence and the party making the offer has no right in law to resile from it. This view is fully supported by the case inSiya Ram Das v. Jagannath : AIR1933All463 . We find ourselves in general agreement with this view but with this modification that though the party making the offer may not have any right in law to resile from the agreement, yet the matter being entirely in the discretion of the Court it is open to him to appeal to that discretion and to ask the Court not to proceed to administer the oath proposed by him under Section 10 and if he can satisfy the Court that there are good grounds for refusing to exercise the discretion given by Section 10 to proceed to administer the oath, the Court may accept his prayer with the result that the agreement though binding in its nature, may not be enforced against him. We find that there is overwhelming authority in support of the view which we have taken. In Ram narain v. Babu Singh ('96) 18 All. 46 it was held that
when one party to a suit offers to be bound by the oath of the other party, and such other party accepts the proposal the party so offering to be bound should not be allowed to revoke his proposal except upon the strongest possible grounds proved to the satisfaction of the Court to be genuine grounds for revoking the proposal.
In Chiddu v. Kunwar Sen ('07) 29 All. 49 it was held that
where a party to a suit has made either a reference to arbitration or, a reference to the oath of a witness such as is provided for by Section 9, Oaths Act, 1873, he should not be allowed arbitrarily to withdraw from the reference.
In Thouyi Ammal v. Subbarafya Mudali ('98) 22 Mad. 234 the Madras High Court made the following observations:
There is nothing in Sections 9 to 11 of the Act (the Oaths Act) which allows a party to retract after the opponent has accepted the proposal. The Act gives the Court a discretion to administer the oath or not, and if a party after agreeing to an oath satisfies the Court that there is good ground for retracting, the Court would probably exercise a wise discretion in refusing to administer the oath, but when a party puts forward frivolous reasons for retracting we think the Court is justified in administering the oath not with standing the retraction.
Similar observations were made by the Bombay High Court inAbaji v. Bala ('98) 22 Bom. 281. The view expressed by the Madras High Court was accepted in its entirety by this Court inSalik Ram v. Wali Ahmad : AIR1927All590 . The Nagpur High Court arrived at the same conclusion inMotiram Hiraman v. Karu Fakira A.I.R. 1937 Nag. 212. In that case it was held that
a party which has offered to be bound by an oath is not entitled as of right, to withdraw that offer, but the Court may allow him to do so if it considers that there is ground for so doing; otherwise the Court should administer the oath.
The earlier view of the Madras High Court in Thouyi Ammal v. Subbarafya Mudali ('98) 22 Mad. 234 was affirmed in the later case inValli Ammal v. Arunachala Moopanar ('38) 25 A.I.R. 1938 Mad. 385, where it was held that
a challenger should not be permitted to resile after his offer had been accepted by the other party unless good ground is shown to the satisfaction of the Court by the challenger.
InAllah Bakha v. Punnun ('41) 28 A.I.R. 1941 Lah. 173, Bhide J. agreed entirely with the view taken by Niamat Ullah J. inSiya Ram Das v. Jagannath : AIR1933All463 . The position which emerges from a consideration of all these cases is that an offer made by a party to a suit to abide by the statement of his opponent upon a special oath proposed by him becomes a binding agreement from which the party making the offer has no right in law to resile, but the carrying out of that agreement lies entirely in the discretion of the Court which may or may not proceed to administer the proposed oath as it thinks fit in the circumstances of the case before it. The party making the offer has no right in law to force the Court to carry out the agreement by administering the proposed oath or to abstain from doing so, but, if he wants that the Court should not proceed to carry out the agreement, he can appeal to the Court's discretion under Section 10, Oaths Act, and it is open to the Court to grant his prayer if it is satisfied that there are good grounds for refusing to proceed with the agreement. The contrary view taken in Rup Singh v. Arjun Sen : AIR1935All276 to the effect that the party making the offer can resile from the agreement before any statement on oath has actually been taken as a matter of right which is not fettered by any conditions does not appear to be supported by any other authority and we are not inclined to agree with it. An attempt was made on behalf of the respondents to support this view by reference to the cases in Tumman Singh v. Sheo Darshan Singh 0065/1929 : AIR1930All162 and Bishambhar v. Shrid Thakurji Maharaj : AIR1931All557 . We find, however, that these decisions are not applicable to the case before us because they were concerned only with the question whether a party may or may not resile from an agreement to abide by the statement of a referee before the statement is actually made. In the latter case the learned Judges themselves observed that various rulings falling under the heading of cases coming under the Oaths Act had been placed before them, but they could not be considered because they were not applicable at all to the question which they had to determine. We do not think that the decisions relied upon by the respondent can be of any use to us in determining the question which we have to consider in the present case.
4. On the facts of the case before us it is clear that the offer made by the principal defendant in the suit was accepted by the plaintiff-appellant, so that a binding agreement came into existence. Thereafter the defendant was not entitled as a matter of right to revoke that agreement. His application, dated 25th November, in which he asked the Court not to proceed to administer the oath to the plaintiff-appellant, did not disclose any reasons at all, much less any good reasons, for allowing the defendant to resile from the agreement. When that application was made it was entirely for the learned Munsif to decide in his discretion whether he should or should not proceed to administer the oath and to record the evidence of the plaintiff. It appears from his judgment that he considered this point and came to the conclusion that the application did not disclose any good reasons at all why the agreement should not be carried out. It is true that the learned Munsif did not immediately pass an order to that effect upon the application itself, but he was not bound by any provision of law to do so. The fact remains that he considered the application and in spite of it decided to proceed in his discretion to administer the oath and to record the evidence of the plaintiff-appellant. The learned Civil Judge in appeal based his order principally upon the view taken in Rup Singh v. Arjun Sen : AIR1935All276 with which for reasons already given we cannot agree. He no doubt further observed that in his opinion there were good grounds upon which the application, dated 25th November could be founded, but it appears that this observation was based upon some evidence which was not before the learned Munsif. The application itself did not disclose any good grounds and we think the learned Munsif took the correct view in refusing to give effect to it and in proceeding to administer the oath and to record the evidence of the plaintiff-appellant. Learned Counsel for the defendant-respondent contends that even if we accept the view, chat the offer made by the defendant when accepted by the plaintiff-appellant became a binding agreement, still it must be held that the agreement lacked mutuality and could not, 1 therefore, be specifically enforced. He referred, to 1 the principle enunciated in Pry on Specific Performance, Edn. 6, para. 460, p. 219, in the following terms:
A contract to be specifically enforced by the Court 1 must, as a general rule, be mutual, that is to say, such I that it might, at the time it was entered into, have 1 been enforced by either of the parties against the other I of them.
It is pointed out that there is nothing in the j Oaths Act to prevent the party to whom the offer is made from accepting the offer in the first instance but refusing to take the oath at a later stage. Section 12, Oaths Act, runs as follows:
If the party or witness refuses to make the oath or solemn affirmation referred to in Section 8 he shall not be compelled to if lake it, but the Court shall record, as part of the proceedings, the nature of the oath or affirmation proposed, the facts that he was asked whether he would make it, and that he refused it, together with any reason which he may assign for his refusal.
It is contended that this provision, however, cannot apply to a case in which the party to whom the offer is made accepts it in the first instance and then goes back upon his acceptance and refuses to take the proposed oath. On this basis it is strenuously contended that there is no reason why the party to whom the offer is made should be placed in a more advantageous position than the party who makes the offer. It is suggested that to place both the parties on the same footing it must be held that even though an offer to abide by a special oath becomes a binding agreement on being accepted by the party to whom it is made, yet such an agreement cannot be specifically enforced. We are unable to accede to this contention in the first place because it seems to ignore the important point that the principle of mutuality in contract admits of many exceptions, for instance, conditional contracts or unilateral contracts or contracts in the nature of an undertaking. We do not think that this principle can be applied to an agreement falling within the purview of the Oaths Act. In such a case there is really no question of specific performance and the Court, when it proceeds to administer the oath proposed by the party making the offer, does so in the exercise of the discretion given to it by Section 10, Oaths Act. By its very nature an agreement falling within the purview of the Oaths Act give to one party the right to the performance which it does not give to the other. We, therefore, reject the argument of the learned Counsel for the defendant-respondent and hold that the learned Munsif was right in proceeding to administer the proposed oath to the plaintiff-appellant and recording his evidence and then in passing a decree upon the basis of that evidence.
5. The result, therefore, is that we: allow this appeal and setting aside the order of remand Sated 2lth November 1943, passed by the learned Civil Judge, restore the judgment and decree of the learned Munsif, dated 27th November 1942. The appellant shall get his costs of this appeal and in the Court below from the principal defendant-respondent, Lala Roop Kishore.