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Banarasi Lal Vs. Neelum - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtDelhi High Court
Decided On
Case NumberLetter Patent Appeal No. 30 of 1970
Judge
Reported inILR1971Delhi748
ActsOaths Act, 1873 - Sections 8
AppellantBanarasi Lal
RespondentNeelum
Advocates: P.N. Lekhi,; G.S. Vohra,; S.N. Chopra and;
Cases ReferredPethayya Pillai v. Karuppiah Nadar and
Excerpt:
.....it dismissed as withdrawn :; that if the evidence given on oath under section 8 of the said act forms the basis of the judgment of the court, it may have to be seen whether the oath was given in the manner prescribed by section 8. ; that in the instant case, the court was not concerned with the validity or otherwise of the oath. it was concerned only with the statement of the applicant that he would have his appeal dismissed as withdrawn after the oath had been taken. it is always open to an appellant to withdraw his appeal whatever his reasons for the withdrawal may be. the court is only concerned with the statement of the party seeking to withdraw the appeal and not with the reasons which impel him to do so. ; that the impugned order of the court dismissing the appeal cannot be..........oath was taken by the respondent in the form offered by the appellant, the appellant will have his appeal dismissed as withdrawn. the learned single judge was not concerned with the validity or otherwise of the oath. he was concerned only with the statement of the appellant that the appellant would have his appeal dismissed as withdrawn after the oath had been taken. the learned single judge did not' decide the appeal on the oath taken by the respondent and he passed the order of its dismissal on the statement of appellant that it may be dismissed as withdrawn if the respondent takes the oath. thereforee, the dismissal of the appeal was not based upon the oath taken by the respondent but on the statement of the appellant that the appeal may be dismissed as withdrawn. it is always open to.....
Judgment:

S.N. Andley, J.

(1) This appeal has been filed against the judgment dated December 17, 1969 of Jagjit Singh J. whereby he dismissed F.A.O. No. 30 of 1969 as withdrawn. This dismissal was in pursuance of a statement made by the appellant undertaking not to press the said F.A.O. which should be deemed to have been withdrawn if the respondent took an oath detailed later. The respondent took the oath as offered by the appellant and Jagjit Singh J. dismissed the appeal as withdrawn.

(2) The respondent was granted a decree for judicial separation on January 31, 1969, by Mr. K. S. Sidhu, Additional District Judge, Delhi, against the appellant. F.A.O. No. 30 of 1969 was filed in this Court by the appellant and was heard by Jagjit Singh. J. On December 17, 1969, the appellant made a statement that if the respondent would state in the Court by taking an oath in the name of the .parties' son, Megh Kumar alias Vishal, that she had not met or talked to the appellant after June 30, 1967 on the occasions to be mentioned by him, then he would not press his appeal and the same shall be deemed to have been withdrawn. The occasions were detailed in the appellant's statement. This offer was accepted by the respondent and she stated before Jagjit Singh J. after taking an oath in the name of aforesaid Megh Kumar alias Vishal that she never met or talked to the appellant after June 30, 1967 on any of the occasions mentioned in the appellant's statement. The oath and the statement made by the respondent were recorded by the learned Judge. Thereafter, it is stated in the judgment that the appellant, in accordance with his statement, did not want to press his appeal which was accordingly dismissed as withdrawn.

(3) Mr. Lekhi, learned counsel for the appellant, has urged that the oath taken by the respondent was vocative of section 8 of the Oaths Act, 1873, inasmuch as it affected a third person, namely, the son of the parties. Section 8 of this Act is in these terms :-

'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, notwithstanding anything hereinbefore contained, tender such oath or affirmation to him.'

(4) It is contended that inasmuch as the oath taken by the respondent affected a third person, namely, the son of the parties in whose name the oath was taken, it is not a valid oath under the said section and the appellant cannot be bound by his statement for not prosecuting the appeal and having it dismissed as withdrawn. It has been held in : AIR1952All678 in re: Budhan v. Sukhan and : (1953)2MLJ766 in re : Pethayya Pillai v. Karuppiah Nadar and others that an offer to take an oath on the head of the son of the person taking the oath is to give evidence on oath not contemplated by section 8 of the Oaths Act which requires that the oath should be one not purporting to affect any third person. The contention of Mr. Lekhi finds support from these two cases but in this case it is not necessary for us to decide whether the oath taken by the respondent by her son purported to affect a third person and was, thereforee, not an oath contemplated by section 8 of the Oaths Act.

(5) The provisions of the Oaths Act are for the purpose of proving facts in a given case. Section 11 of this Act provides that the evidence given on oath shall, as against the person who offered to be bound by the oath, be conclusive proof of the matter stated. It follows that the Court will also take the matter stated on oath to have been conclusively proved. If the evidence given on oath under section 8 of the said Act forms the basis of the judgment of the Court, it may have to be seen whether the oath was given in the manner prescribed by section 8. But the enquiry will be only for the purpose of ascertaining whether the facts which were the subject matter of the oath have been conclusively proved.

(6) The learned Single Judge did not decide the appeal before him on the basis of any evidence which could be said to have been conclusively proved by the oath taken by the respondent. The appeal was decided on the statement of the appellant that if an oath was taken by the respondent in the form offered by the appellant, the appellant will have his appeal dismissed as withdrawn. The learned Single Judge was not concerned with the validity or otherwise of the oath. He was concerned only with the statement of the appellant that the appellant would have his appeal dismissed as withdrawn after the oath had been taken. The learned Single Judge did not' decide the appeal on the oath taken by the respondent and he passed the order of its dismissal on the statement of appellant that it may be dismissed as withdrawn if the respondent takes the oath. thereforee, the dismissal of the appeal was not based upon the oath taken by the respondent but on the statement of the appellant that the appeal may be dismissed as withdrawn. It is always open to an appellant to withdraw his appeal whatever his reasons for the withdrawal may be. The Court is only concerned with the statement of the party seeking to withdraw the appeal and not with the reasons which impel him to do so. It is true that the appellant in the present case stated that on the respondent taking an oath in the manner suggested by him, the appeal may be dismissed as withdrawn. But his insistence on oath being taken by the respondent was only the reason for his statement to the Court that he will withdraw the appeal and, thereforee, the order of the Court dismissing the appeal cannot be said to be dependant on the validity or otherwise of the reason for the withdrawal, namely, the oath taken by the respondent.

(7) In this view of the matter the validity or otherwise of the oath taken by the respondent does not arise for consideration and since the appellant's statement that he will have the appeal dismissed as withdrawn was the basis of the dismissal of the appeal, the dismissal cannot be questioned. This appeal is, thereforee, dismissed but in the circumstances of the case, there will be no order as to costs.


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