1. This appeal must be allowed. There is no question whatever but that the parties agreed to be bound by the defendant's oath. The document is in writing. No attack is made upon it. It is not contrary to law. It is in these terms as translated by the plaitiffs' Vakil in this Court. 'On behalf of the plaintiff an application has been made. On this defendant No. 1 refused to take oath on Ganges water. The Vakil for the plaintiff states that the evidence of the defendant may be taken with the ordinary oath and that the suit may be decided according to that.' This is signed by Kesho Ram, defendant No. 1, in Roman character, and by Peare Lal, the plaintiff, in Nagri character. There can be no serious question as to the interpretation of this document. 'Decided according to' is 'decided according to and nothing else.'
2. There can be no doubt as to the deliberate intention of the parties, because the date of this document, the 17th of March, was the date of the filing of the written statement and the date fixed for framing issues. No issues were framed. The defendant's evidence was taken on the 17th of March. No other witnesses were summoned. No evidence of any kind except the defendant's was taken, and the Court of the Musnif proceeded to decide the case the next day, but not according to the defendant's statement but according to its own ideas arrived at from admittedly adequate materials.
3. Assuming that the document was made, and that it bound the parties to abide by the defendant's statement, I can see nothing illegal in such a contract. It is merely a binding contract for good consideration. It does not say that the defendant shall tell the truth. If it bound the defendant merely to tell the truth, there would be no consideration, because every body is bound to tell the truth by law, and we know that that is the object for which they come into the box. But the defendant was not bound to come into the box at all. He might come into the box and refuse to answer the questions. He could be punished for that, but the agreement is: 'that if the defendant comes into the box and takes the ordinary oath and tells his story, I will be bound by it.' The result of that is to alter the position both of the plaintiff and of the defendant. If the defendant tells an untrue story, the plaintiff is then in a position to prosecute him for perjury which he could not do before, and in addition to that the defendant has run the risk of being visited in this world and the next by such punishment as he believes his God prepares for those who take a false oath. He might be prepared to run the risk of the anger of his God so long as he could win his case. But he might not be prepared to run the risk of being punished by his God, prosecuted for perjury, and also disbelieved by the Munsif and lose his case. The result is that the position of both parties was changed by this agreement.
4. I agree with the respondents' Counsel that this is not an agreement for a special oath within the meaning of sections 8 and 9 of the Oaths Act. I think these sections of the Oaths Act only show that such an agreement may be binding on the parties, even though it relates to an oath not ordinarily recognised by the procedure of the Court, provided it is an oath which the Court is permitted to administer under Section 8. It is only an argument by analogy. The argument for the appellant is that, as such agreements are sanctioned by this Act, there can be nothing illegal in an agreement relating to an ordinary oath. I agree and, apart from that I think the decision in the case of Muhammad Asghar Ali Khan v. Muhammad Imtiaz Ali A.W.N. (1898) 200 is to the same effect and, therefore, binding on me.
5. I do not know why the Court seemed so unwilling to give effect to the agreement of the parties. An appeal was brought to the lower Appellate Court on the ground that the Munsif had totally ignored the agreement, which he did. The learned District Judge has treated the matter as though it was a question whether the learned Munsif was bound to believe the defendant. That has nothing to do with it at all. The very reason for the plaintiff signing the agreement may be that he knows the defendant is going to commit perjury. The agreement makes the truth or untruth of the defendant's story immaterial for the purpose of the immediate decision. The learned Judge is probably right when he says that this question should be decided by a consideration of the circumstances rather than by hard swearing. But that was not what he was bound to decide. He seems to think the defendant an unscrupulous person and the plaintiff a fool. But if the plaintiff has made a binding agreement it does not matter to the Court how foolish it is, and after all the plaintiff probably knows his own business better than the Court, and it may not be so foolish in the eyes of the plaintiff as in the eyes of the Court. I have no alternative but to remand the suit to the lower Appellate Court to decide in accordance with the agreement, that is to say, according to the evidence given by the defendant. The appellant must have the costs of this appeal with fees on the higher scale. The other costs will depend on the result of the suit.