(1) In a suit for recovery of a sum of money the parties agreed by an endorsement on the plaint that, if the 4th defendant took an oath as indicted in the endorsement, the plaintiff's suit should stand dismissed. It the 4th defendant did not take such an oath, then the suit should be decreed. The 4th defendant did not take the oath. Before the trial court, it was contended by the 4th defendant that he did not agree to take the oath in a temple as stated in the endorsement, but was only prepared to take the oath in court. But the learned District Munsif found that the endorsement had been signed not only by the parties but also by their advocates. Holding that the endorsement was binding, the suit was decreed in terms of the endorsement. On appeal, the learned District Judge confirmed the lower court's decision. The defendants have preferred this second appeal.
(2) The ground which was canvassed by Sri T. R. Ramachandran, learned counsel for the appellants, is that the failure of a party tot take oath cannot in law justify the passing of a decree forthwith. It is urged that the only means that the special method of the determination of the controversy is no longer available and that the court should follow the procedure governing the conduct of the suits. It may however be open tot he court to take note of this circumstance that a party having agreed to take oath has failed to do so. And draw such inference as the court pleases. What is objected to is the passing of a decree forthwith on the basis of the agreement.
(3) A decision of the Travancore-Cochin High Court reported in Sankaran Narayanan v. Kochu Pillai Kochu, AIR 1957 Trav-Co, 315 has been cited. In this decision, the learned Judge points out that the law does not authorise a court to pass a decree merely because a party has resiled from his original agreement to abide by the result of an oath and the only course left tot he court is to proceed with the trial of the suit in accordance with the law in force. Reference has been made in this decision in Moyan v. Pathukutti, ILR 31 Mad 1, in that case what was pointed out was that the refusal to take an oath might be used as part of the evidence but the dismissal of the action for failure to take the oath was irregular.
(4) An earlier decision of our court in Uthatchadayan Haji v. Raman Nambiar 4 Mad ICR 422 has also been referred to by learned counsel. But this decision no doubt did not proceed upon a consideration of the provisions of the Indian Oaths Act. There appeared to have been similar provisions in certain earlier enactments which had been repealed. But the general purport of this decision is as revealed by the following passage at pages 423 and 424.
"But the question which we have to consider is whether this suit has been disposed of in a manner sanctioned by the Code. Now it was admitted by Mr. O'Sullivan, on behalf of the Special respondent, that unless the case is brought within the 98th section of the Code, the procedure adopted cannot be justified. That section provides that, if a suit shall be adjusted by mutual agreement or compromise, such agreement or compromise shall be recorded and the suit shall be disposed of in accordance therewith, and the question is whether this suit was adjusted by mutual agreement or compromise so that it could be disposed of in accordance therewith. We think that what is meant by this language is that the parties should agree upon some terms respecting the subject matter of the suit which are capable of being embodied in a decree whereby the suit would be disposed of. In the present case there certainly was no such agreement but only an agreement that, if the defendants shall do certain things, a decree should be passed in favour of the one party, and if they should fail to do those things then in favour of the other party; so that what decree should be passed would depend upon the result of an inquiry, whether subsequently to the agreement certain acts had or had not been performed. The suit was not adjusted by the
As I said, though this decision does not refer to the Oaths Act, the principles that emerge form a consideration of the relevant provisions of the Oaths Act are really what are laid down in this decision. What the relevant provisions in the Oaths Act indicate is that if oath is taken, the point, upon which the oath is taken, is declared to the conclusive by S. 11 of the Act. On the other hand, if the oath is not taken, there is no conclusive decision with regard to the point. The court is only enjoined to take note of the fact that the oath was not taken. The Oaths Act says nothing further about the mode of disposal of suit which should thereafter proceed in accordance with the law. Mr. P. S. Ramachandran, learned counsel for the respondent has referred to a decision in Umayammai v. Muthiah Nadar 17 Mad LJ 99. In that case a decree was passed on the basis that the oath was not taken as undertaken. The question however was not examined at any great length. In Velayuda Goundan v. Narayanasami Goundan, 17 Mad LJ 536 it was observed that it was not open to the parties to resile from an agreement to be bound by an oath of the other party except for some good reason. But learned counsel concedes that the first of these cases has been expressly dissented from in Thukku Goundan v. Kuppanda Goundan, 17 Ind Cas 339 (Mad).
(5) Upon a consideration of all the decisions, I am satisfied that the mode of the disposal of the suit by passing a decree when one party fails to take an oath in accordance with the agreement cannot be said to be proper. It is obvious that no person can be compelled to take any special form of oath and if even after having agreed to do so, he refuses to do so, the Count cannot absolve itself of the responsibility of determining the suit or merits by relying only upon the agreement. I am satisfied that the weight of authority is in support of the stand taken by learned counsel for the appellants. It follows that the judgments and decrees of the Courts below have to be set aside and the suit remanded for trial on merits. The appellants will be entitled to the refund of Court fees paid in the appeal memorandum here and in the Court below. There will be no order as to costs. No leave.
(6) Appeal allowed.