1. This is a plaintiffs' second appeal against an order dismissing his suit by both the courts below. The plaintiffs commenced a suit for recovery of a certain sum of money on the foot of a promissory note. The defendant admitted the execution of the said promissory note, but denied the receipt of the consideration thereunder. His defence was that the plaintiffs assured him that the money would be paid to one L.K Biswanadham within a few days of the execution of the handnote; but they never paid it to him, and thus he was not liable.
2. After some evidence was recorded at the trial, the plaintiffs filed a petition on 29-9-51 for a special oath to be taken by the defendant to which he agreed in writing. The trial court accordingly issued a writ for administering the special oath fixing 16-10-51 for return. Since the plaintiffs took objection that the defendant must repeat all the averments in his written statement on special oath the defendant was not agreeable and consequently, it was returned unexecuted on 25-10-51. After another unsuccessful attempt to get the writ executed, the trial Judge finally issued a writ with a direction to the commissioner to administer the oath in accordance with the plaintiffs' petition dated 29-9-51. The oath was Ultimately administered and the writ was received executed in Court on 21-1-52.
The plaintiffs not being satisfied, filed their objections both before the Commissioner as well as in Court. The trial Judge, however, on 22-1-52 accepted the report of the Commissioner and dismissed the suit. Against this dismissal of the suit, the plaintiffs carried an appeal to the District Judge. The lower appellate court held that the special oath is binding on the plaintiffs and the dismissal of the suit is in accordance with law. It was further held that it would not only bind the major plaintiffs, but it would also bind the minor plffs as well. It is against the appellate decree that the present second appeal is directed.
3. Mr. K.S.R. Murty, learned counsel appearing on behalf of the appellants vehemently urged that the plaintiffs could have resiled, under the circumstances, from the agreement and, in fact from the very beginning, after the writ was issued by the trial Judge, they had been putting forth their objections. According to him, they had sufficient reasons to resile from the said agreement. At any rate, Mr. Murty contended that even assuming that the special path as administered is conclusive evidence against the plaintiff No. 1, it would not in any event, bind the plaintiff-2, nor the other three minor plaintiffs.
4. Before dealing with the above contentions, I would like to state the nature of the special oath intended to be administered. The plaintiffs challenged that if the defendant by placing his hand on the head of his son in the present of Nilakantheswar of Iswar Temple at Gunupur says that he did not receive the consideration under the suit pronote, and that the statements made in the written statements are true, the plaintiffs would forego the claim in suit. The relevant portions of the petition dated 29-9-51 are in the following terms : 'I did not receive the consideration under the suit pronote and the writ-ten statement allegations are true'.
5. Mr. Murty in support of his first contention, relied upon a decision reported in Pethayya Pillai v. Karuppia Nadar, AIR 1953 Mad 708 (A) and contended that since the special oath affected a third person, that is, the son or the defendant, it is not an oath contemplatedunder Section 8 of the Indian Oaths Act, and therefore it is void ab initio, and the plaintiffs were free to resile from the said agreement. The facts of that case were that the second plaintiff only was present at the time the offer was made, and the other plaintiffs lodged their protest before the oath was actually administered. Therefore the third party affected by the oath was the absentee plaintiff and not the son of the defendant on whose head the hand was to be placed at the time of taking the oath. The principle decided in that case, relying on a previous decision of that court Vailli Animal v Arunachala Moopanar, AIR 1938 Mad, 385 (B) was that once a challenge to take an oath was accepted, the challenger should not be permitted to resile after his offer had been accepted by the other party unless good ground is shown by the challenger to the satisfaction of the Court.
Mr. Murty frankly conceded that this case does not help his contention very much. But he relied upon the principle under which the special oaths in this country are administered. Mr. Murty's main contention, therefore, was that the Indian Oaths Act having made a provision in case of refusal by the acceptor to make the oath, a similar provision should have been made for the challenger. That, however, is a matter for the Legislature. Thus, it necessitates an examination of the very scheme of the Indian Oaths Act (Act X of 1873). The Indian Oaths Act was enacted to consolidate the law relating to judicial oaths, affirmations and declarations. Section 8 gives the power to Court to tender special oaths in any form common amongst the parties in case it does not purport to affect any third person.
Then under Section 9, when any party offers to be bound by any such oath as is contemplated under Section 8 the Court may ask the party, or any witness whether he would take the special oath proposed by the opposite party. If he agrees, under Section 10 the Court would himself administer the oath or issue a commission for that purpose. Under Section 11 the special oath once administered, it would be conducive proof of the matter against the person who offered to be bound by it. The Act thereatferprovides the procedure in case of refusal by the acceptor. Section 12 provides that if the party or the witness refused to take the oath as contemplated under Section 8, he shall not be compelled to make it.
A presumption, adverse, to him, however, can be drawn by the Court in that event. Mr. Moorty strongly relies upon this provision of Section 12, and, by way of anology, urges that if in case of the acceptor the provision is made that he can resile from taking the oath, then why should not the proposer or the challenger also be similarly given an opportunity to resile from the agreement. This contention of Mr. Murty cannot be accepted, because under the very scheme of the Act it was not necessary and hence no provision has been made for the proposer to resile, because once the proposal is made under Section 8, and it is accepted by the acceptor under Section 9, it becomes a completed contract and as such becomes irrevocable. It can only be revoked by one or the other way by which a contract is ordinarily revoked. That isthe reason why the Indian Oaths Act has made no provision whatsoever so far as the proposer is concerned. The rule of law in the words of the Privy Council is based on 'grent good sense'. It is directed by public policy and is independent of any other consideration. Reference wag made to two cases reported in Mahadeo Prasad v. Srjug Prasad AIR 1952 Pat, 208 (C), and, Saheb Ram v. Ram Nawaz, AIR 1952 All 882 (FB) (D). Inthe Patna case, their Lordships held that once an offer to be bound by the special oath has been made and accepted by the offerer, it cannot be revoked and he cannot be allowed to resile from the offer. Sections 8, 9 and 10 do not entitle a party to withdraw from the offer of being bound. The Allahabad Full Bench decision is to the same effect and has further considered the effect of Section 2 (e) of the Contract Act. What their Lordships decided was that when a party offers to be bound by the statements of any of the opposite parties under Section 9, he cannot resile from such an offer after the other party has agreed to make such oath.
The Court, however, on sufficient cause being shown to its satisfaction may allow the offerer to resile. While considering the effect of Section 2 (e) of the Contract Act, their Lordships held that where a party offers to be bound by a special oath, and the other party accepts the offer, there is a completed agreement which cannot be revoked I respectfully agree with the above decisions and find no substance in the argument of Mr. Murty.
6. Now, coming to his second contention regarding the binding nature of the agreement on the plaintiffs other than plaintiff 1, he had relied upon a decision reported in Parbhu Dayal v. Jamil Ahmad, AIR 1922 All 160 (E). In that case, it, was held that minor defendant was bound so Far as the plaintiff's statement that he had not refused to purchase the property was concerned, but the agreement that the suit should be decreed was not binding in as much as it amounted to a compromise of the suit which could not be made without the sanction of the Court. The facts in that case are clearly distinguishable.
That was a suit for pre-emption in which not only the question of a prior purchase, but also the question of customary right under the Wazibularz were urged. That is why their Lordships of the Allahabad High Court held that so far as the first part was concerned, the minors were bound, but so far as the second part was concerned they were not so bound, because a prior compromise does not bind the parties. Mr. Chatterji appearing on behalf of the respondents drew my attention to a case reported in Deoraj Misra v. Mt. Abhai Raji, AIR 1927 All 584 (F), wherein this decision of the Allahabad High Court was considered and their Lordships had distinguished the same and did not approve of it. In that case, it was held that an agreement by the guardian on behalf of the minor to be bound by the statement of a certain witness does not amount to a compromise requiring sanction of the Court for its validity, and is binding upon the minor without such sanction. After dealing with the case of AIR 1922 All 160 (E), their Lordships held that:
'We are of opinion that the minor was bound by the statement made by Munshi Balgobind Prasad in view of the clear provision, of Section 11 of the Oaths Act, 1873'.
Undoubtedly, the plaintiffs could have resiled from the agreement before it was accepted. Therefore, the settled position in law is that the plaintiffs could have resiled from the agreement before it was actually accepted under Section 9 of the Indian Oaths Act if they had shown sufficient cause as has been held by the Patna and Allahabad decisions cited above. Mr. Murty frankly conceded that no cause whatsoever has been shown by the plaintiff 1, except that from the very beginning she had been resenting the administration of the special oath in the form in which the defendant wasprepared to make. Mere resentment, in my opinion, would not allow the plaintiff any relief. The defendant, in fact, had taken the special oath in exactly the terms as stated in the plaintiffs' petition dated 29-9-51 and consented to by him in writing. The plaintiffs are thus bound under Section 9 of the Oaths Act. Further, the proposal having been accepted and the oath having been administered in accordance with the above petition, the courts below were justified in holding the plaintiffs to be bound by it and in dismissing the plaintiff's suit. Thus, I see no reason to interfere with the judgment of the courts below. The appeal is accordingly dismissed with costs throughout.