T.C. Raghavan, J.
1. For more reasons than one the decision of the lower appellate Court has to be vacated and the decision of the trial Court restored
2. The parties to the suit agreed to settle the suit by oath as contemplated by Order XXIII, Rule 3-A of our Code of Civil Procedure. The plaintiff-respondent examined eight witnesses on her side, after which she closed her case. Thereafter, the first defendant (the first appellant) entered the box; and he was cross-examined at length by the counsel of the respondent. Just before the cross-examination was closed on 4th January, 1963, the counsel threw out a challenge to the witness whether he was willing to take oath before the Bhagawathi temple, Cranganore and was willing to have the suit decided on oath. The first appellant agreed; and the suit was consequently adjourned to 8th January for filing the oath agreement. On that day the oath statement containing the agreement of the parties as well as the actual oath to be taken was filed. The Court then directed the oath to be taken on 11th January before a commissioner appointed by Court; and also directed the return of the commission by 15th January. Two days thereafter on 10th January, the respondent filed I. A. No. 72 of 1963 praying that permission might be given to her to resile from the oath agreement The trial Court refused permission; but the respondent failed to deposit the expenses of the commission and the expenses payable to the temple as agreed to under the oath statement. Consequently, the suit came to be dismissed with costs. The respondent took up the matter in appeal; and the lower appellate Court has reversed the decision of the trial Court and remanded the suit for further consideration and disposal on merits.
3. The lower appellate Court has observed several times in its judgment that the oath agreement was the result of the heat of the moment There is no warrant for this conclusion us will presently appear. The respondent examined as many as eight witnesses and closed her case It was thereafter that the first appellant entered the box, and at the very close of his cross-examination the challenge to take oath emanated from the respondents counsel. Even conceding for the sake of argument that the challenge was the result of the heat of the moment. I mean the heat of the cross-examination, still, there was enough time for cooling down and for all the heat to disappear, because the oath agreement as contemplated by Order XXIII Rule 3 A was filed only on 8th January, four days after. It is patent therefore, that there could not have been any heat which was responsible for the oath agreement: it must have been a cool and deliberate act.
4. The reason given by the respondent and accepted by the lower appellate Court. The next ground, is that the Bishop of Trichur was consulted: and that he informed the respondent that she as a true Catholic, should not be a party to any non-Catholic religious ceremony. First of all, there is no evidence for this alleged consultation and advice. No witness has been examined after the alleged advice. The respondent's son, who is himself a priest, has already been examined as Pw 1, and he has admitted in the box that it was he that was conducting the litigation on behalf of his mother. If really there was a religious objection, for one thing. Pw 1, being a priest himself, would have known it. For another. the time for consulting the Bishop and taking advice wasnot after the oath agreement was filed in Court on 8th January, but before. Obviously, the respondent bad sufficient time to do it if she wanted. Secondly, the canon that is relied on is Canon 1258 given by Rev Stanislaus Woywod in his work entitled a Practical Commentary on the Code of Canon Law, Vol II, at page 65. The canon lays down that it is unlawful for the faithful to assist in any active manner, or to take part in the sacred services of non-Catholics. It proceeds to state that at funerals of non-Catholics, at their marriages, and similar solemnities, provided there is no danger of perversion or scandal, passive or merely material presence on account of a civil office or for the purpose of showing respect to a person may be tolerated for a grave reason, which in doubtful cases must be approved by the bishop. I am not sure that this canon can be pressed into service in a case like this. It is patent that this canon is not intended in meet cases like the one before me. Suppose, for instance the oath is to be taken in the Court itself, which is also provided by Order XXIII Rule 3-A. Even then, the first appellant, being a Hindu, might take the oath in the name of the Bhagawathi Cranganore. Can it be said that the oath taken in the Court is any the less a religious ceremony if taking the oath before the temple is a religious ceremony? The respondent can obviously have no objection to the first appellant taking the oath in the Court. Therefore, the respondent cannot resile from the oath agreement on the strength of this canon.
6. Then I come to the effect of Rule 3-A of Order XXIII of our Civil Procedure Code. It provides that after the agreement has been accepted by the Court it shall not be competent to any of the parties to withdraw therefrom without the leave of the Court. It further provides that if any party withdraws or refuses to take oath without lawful excuse the Court may decide the case against him or pass any such order as it deems proper Mr. V. Parameswara Menon, the counsel of the appellants, draws my attention to the Division Bench ruling of the Patna High Court in Mahadeo Prasad v. Sarjug Prasad AIR 1952 Pal 208. That was a case arising under the Oaths Act of 1873 and the Division Bench held that once the oath agreement had been accepted by both sides, it was a concluded contract as contemplated by Section 5 of the Indian Contract Act and that such a concluded contract could be avoided or resiled from only on grounds contemplated by the Contract Act. Under the Contract Act a validly concluded contract can be avoided only on the grounds of coercion undue influence fraud misrepresentation or mistake of fact, as contemplated by Sections 14 - 22 of the Act Mr. Parameswarn Menon is right when he points out that the provision of the Contract Act that may he applicable to the present case is only Section 22 which says that a contract reached on a mistake of fact of one party cannot be avoided by him if the contract was the result of a mistake of fact of both the sides the contract is void under Section 20. It is therefore, clear that in this case even if there was a mistake of fact which induced the respondent to agree to the contract, still for that reason she cannot avoid the contract. It may also be noted that the expression used in Order XXIII Rule 3-A is 'lawful' excuse.
6. The decision of the lower appellate Court is thus erroneous; and the decision of the trial Court is the correct one. The miscellaneous appeal is allowed, the decision of the lower appellate Court is set aside and the decision of the trial Court is restored. The respondent will pay the costs of the appellants in this Court and in the lower appellate Court.
7. Before I leave this case. I would enter my strong opinion that the provision for settlement of suits by oath, which. I am told, is available only in the Civil Procedure Code of our State and not in the Codes of other States must be deleted. This is only one case where the unworkability of the provision has come out where the parties to the litigation belong to two different religions. Even otherwise, I am of opinion that deciding cases on oath alone should be discouraged.