1. The plaintiff in O. S. No. 1218 of 1961 on the file of the City Civil Court. Madras, is the appellant in this appeal. The plaintiff laid the suit for recovery of Rs. 7,620/- made up of a sum of Rs. 6,000/- said to have been given as a hand-loan to the defendant and interest thereon at twelve percent per annum. The defendant denied the loan. When the suit came up for trial the plaintiff challenged the defendant to take a special oath in a Jain temple by touching the God denying the loan. The defendant accepted the challenge. Both parties made an endorsement on the plaint to that effect. Subsequently the plaintiff took out I. A. No. 3418 of 1968 praying for permission to resile from the challenge. In the affidavit that was filed in support of the application, it was alleged that the Jain guru and certain other members of the community had found fault with the plaintiff for having made the challenge, that there will be displeasure of God if the oath was administered and that therefore, he should be permitted to resile from the challenge. The defendant opposed that application contending that a concluded contract had come into being and that the plaintiff was not entitled to resile from the contract. The trial Court dismissed that application by order dated 30th March, 1963. In view of that order the trial Court decreed that the suit shall stand dismissed with costs. It is against that dismissal that this appeal has been filed.
2. During the pendency of the appeal, the defendant died and his legal representatives have been brought on record.
3. Mr. Balasubramaniam, appearing for the plaintiff-appellant contended that even though the offer made by the plaintiff and the acceptance made by the defendant with regard to taking of oath may constitute a contract, it is necessary on the part of the defendant to take the oath that without the defendant taking the oath it cannot be said that he completed his part of the contract and that therefore the plaintiff-appellant should have an opportunity to prove his claim. We are unable to accept this argument. The lower Court has rightly held that the plaintiff was not entitled to resile from the challenge. The lower Court relied upon the decision of a Bench of this Court in Ayyakannu Nadar v. Muthiah Nadar, (1967) 17 MLJ 99. That was an identical case. There also, the plaintiff after having challenged the defendant to take oath and the defendant having accepted the challenge, resiled from it with the result that the defendant did not take the oath and the suit was dismissed, as in the instant case. The correctness of that dismissal was considered in that decision. The Bench observed:
'If the party who has agreed to be bound prevents the oath being taken, the other party is............ entitled to a decree, at any rate in a case like the present where it is the plaintiff who agrees to be bound and the result of his refusal to allow the oath to be taken in the form agreed upon is that there is no evidence in support of his case'.
Mr. Balasubramaniam drew our attention to a decision of Srinivasan, J. in Sundaram v. B. Subbamma, : AIR1965Mad412 in which, according to the learned counsel the aforesaid Bench decision was distinguished. That decision is not of any held to the appellant: In that case, the fourth defendant undertook to take an oath and made an endorsement on the plaint stating that if the oath was taken in the form endorsed, the suit shall stand dismissed. The plaintiff agreed to that Course. But subsequently the fourth defendant did not take the oath and stated that he was not agreeable to take the oath in the form endorsed but in a different form only. The plaintiff was not agreeable to that challenge. It was in that view that the learned Judge held that the suit should not have been disposed of on the oath taken by the fourth defendant in the modified form. One of us had to deal with the constitutional validity of Section 12 of the Oaths Act (1873) in Perumal v. Krishnaswami, : AIR1969Mad90 . It is pointed out that where an agreement to take a special oath is arrived at between two parties to the suit in the presence of the Court and when one of the parties, namely the challenger goes back on the understanding without proper reasons all that the Court does is to allow the other side, namely, the proposer to make the oath which he agreed to take and to decide the dispute on the basis of such oath being taken; and that the principle of mutuality available in relation to specific performance of contract cannot arise in such cases. This decision on which Mr. Balasubramaniam relied, is also not of any help to the appellant for, it is the plaintiff who challenged for an oath and the defendant was agreeable to take the oath. The lower Court has held that the reasons given by the plaintiff for resiling from the challenges are not tenable. In that view, the trial Court took the view that the suit should be dismissed as the plaintiff resiled from the agreement. The position is that there was no evidence to prove the oral loan, to recover which the suit was laid. There is no ground to interfere.
4. The appeal fails and is dismissed. As the respondents are not represented we make no order as to costs.
5. Appeal dismissed.