1.This is an appeal from an order of the lower appellate Court by which that Court set aside the decree of the trial Court and remanded the case with a direction to re-admit it to its original number in the register of original suits and to try it according to law and merits. The facts of this case are that on 28th November 1930, the parties to the suit made a statement before the trial Court to the effect that they constituted Jagrup Ahir as a Munhasir IIahe in the case and that the case should be decided according to the statement of that witness. The case came up for hearing on 6th December 1930, but before Jagrup could be examined the plaintiffs submitted an application to the effect that undue influence was being exercised by the defendants on Jagrup and therefore a special kind of oath like Gangajali or sacred book be administered to Jagrup or the plaintiffs would not be bound by his statement. The trial Court without recording any reasons simply rejected this application and proceeded to examine Jagrup Ahir whose statement was favourable to the defendant. Upon the basis of this statement alone the trial Court dismissed the plaintiffs' suit on 6th December 1930.
2. On appeal to the lower appellate Court it was contended on behalf of the plaintiffs that they were entitled to resile from their agreement dated 28th November 1930, and it was unfair to pin them down to that particular statement, that they in fact did resile from the aforesaid agreement and consequently there has been no proper adjudication of the case and the suit should therefore be remanded for disposal on the merits according to law. The lower appellate Court acceded to this contention and relied upon the case of Turnman Singh v. Sheodarshan Singh 0065/1929 : AIR1930All162 . It set aside the decree of the trial Court and remanded the case. In the present appeal before me it is contended that the decree of the Court of first instance was correct and the order of the lower appellate Court was not warranted by law. It is argued that it was not open to the plaintiffs to withdraw from the position that they took up on 28th November 1930. It is conceded that if the status given to Jagrup by the application of 28th November 1930, was only that of a referee who was to make a simple statement as to the manner in which the case ought to be decided, that statement not being on oath, then the parties could resile from their original position and on the trend of authorities this concession is quite fair. It has been held in the case of Bishambhar v. Radha kishanji : AIR1931All557 and Turnman Singh v. Sheodarshan Singh 0065/1929 : AIR1930All162 , that where the parties agree to abide by the statement of a third person it is open to the parties to resile from that agreement before the statement of the: third party had been recorded. It has also been held in the same two cases-that such an agreement did not come-within the purview of Order 23, Rule 3, Civil P.C. inasmuch as Rule 3 refers only to adjustments which have already been made.
3. It is however contended that the provisions applicable to the present case are the provisions contained in the Oaths Act, and where a party agrees to abide by the oath of a third person he should not be allowed to resile from that agreement on frivolous grounds. Indeed, at one stage the position taken up by the appellant before me was that under those circumstances it is not open, to a party to retract at all. It is however well settled that if a party after agreeing to abide by an oath satisfied, the Court that there is good ground for retracting, the Court would exercise a. wise discretion in refusing to administer the oath and it is only when a party puts, forward frivolous reasons for retracting that the Court would be justified in administering the oath notwithstanding the retraction, vide the cases of Ram Narain Singh v. Babu Singh (1896) 18 All 46, Salik Ram v. Wall Ahmad : AIR1927All590 , Thoyi Ammal v. Subbaroya Mudali (1899) 22 Mad 234 and Mahbub v. Syedali : AIR1931Cal549 . Accepting this position the learned Counsel for the appellant argues that a bald statement to the effect that undue influence was being exercised upon Jagrup, without indicating the nature of that undue influence, was not a good reason for retracting, specially as the plaintiffs did not unequivocally withdraw from the agreement, but declared themselves willing to abide by the statement of Jagrup, provided a special kind of oath was administered to him. He further argues that the Court of first instance treated the application of the plaintiffs dated 6th December 1930, with contempt and did not consider it necessary to assign reasons in writing for rejecting the said application because the reasons were absolutely frivolous.
4. I am however of the opinion that the provisions of the Oath Act do not apply to the facts of the present case. I have consulted the dictionaries available in this Court and I find that the word 'hasir' does not mean the giving of an oath but it simply means 'to rely' or 'to depend' and the word 'munhasir' means 'dependant.' It is therefore clear that if we look at the application of 28th November 1930, there is no reference in that application to any oath being administered to Jagrup. It is however pointed out that Jagrup, when he was examined on 6th December 1930, was examined on oath. That to my mind does not change the situation, for the subsequent proceeding in the case cannot be invoked in aid to interpret a prior application. It is then argued that the application of 6th December 1930, conclusively shows that some sort of oath was to be administered to Jagrup from the very beginning, and that by the application of that date a special kind of oath was required to be administered. Even this again is answered by what I have stated before that one cannot explain a prior proceeding by anything that happens subsequently. But even if it be conceded that there was an intention to administer an oath to Jagrup and that Jagrup was to enter the box as any ordinary witness, then I am of the opinion that in order to invite the application of the principles laid down in 18 All. and other cases mentioned above, it is necessary that the oath or solemn affirmation referred to in Section 8 et seq of the Oaths Act, should in its nature and essence be quite distinct from the oath and affirmation contemplated by Section 5 of the Act. In no lease can I construe the application of 28th November 1930, as an application for the administration of an oath to Jagrup in any special form as contemplated by Section 8 of the Act. The utmost that can be said was that Jagrup should be given if at all, an ordinary oath under Section 5 of the Act. In this view of the case I am of the opinion that it was open to the plaintiffs to retract from the position which they took up on 28th November 1930, and that it was not absolutely necessary for them to satisfy the Court that the reasons given by them for their desire to withdraw were absolutely satisfactory.
5. Lastly, it is contended that the statement made by Jagrup is an admission and an admission by which the plaintiffs would be bound inasmuch as Jagrup's statement is a statement of fact deposed on personal knowledge and reference has been made to Section 20, Evidence Act. If I am correct in my view that the plaintiffs had the right to resile from their agreement, then the statement of Jagrup should not have been recorded at all in the way in which it was recorded and I must decide the case as if such a statement had not been recorded at all. There is therefore nothing on the record which can amount to a statement of fact binding on the plaintiffs. The result is that I dismiss this appeal with costs.