1. This Second Appeal raises questions under the Indian Oaths Act. The plaintiff who is the appellant agreed to accept the oath of the first defendant as conclusive of the matter in issue and the agreement was that the parties should appear before a certain temple, that the-plaintiff should light camphor and the defendant should extinguish it while taking the required oath. The agreement did not stipulate the time or the date of the oath, which were left to be fixed by the Court. The Court, accordingly, issued a warrant to a commissioner appointing him to take the oath from the first defendant in the presence of the plaintiff between the hours 8 and 11 A.M. on the 17th March, 1933. The parties and the commissioner duly appeared at the temple as required, but the commissioner's report shows that just as the first defendant was about to take the oath the partisans of both sides told the plaintiff and the first defendant that they should abide by the decision of panchayatdars and accordingly a panchayat went on, but the parties did not agree to act according to what the panchayatdars said; and then both the plaintiff and the first defendant said that the time mentioned in the warrant had elapsed and they went away without any oath being taken. It thus appears that the warrant was not executed owing to circumstances for which neither, party can be blamed more than the other.
2. When the warrant was returned to the Court the plaintiff tried to make capital out of these circumstances by alleging that the first defendant had failed to take the oath and contending that her defence should therefore be struck off. The trial Court, quite rightly, refused to accept this contention, and required the plaintiff to deposit Rs. 6 for the expenses of a fresh commission to take the oath, the first defendant professing herself still ready to take the oath. The plaintiff refused to deposit the money and his suit was dismissed, no opportunity being given to him to adduce evidence on the merits. In the lower appellate Court the first defendant not only professed willingness to take the oath but also offered to bear the expenses, an offer which apparently was not made in the trial Court. The plaintiff contended that the agreement to take the oath was at an end and that the Court had no jurisdiction to force him into a fresh agreement or to make him pay the expenses of the proceedings. The appeal was therefore dismissed and the plaintiff comes up in Second Appeal.
3. Three arguments have been advanced here. They are : (i) that the Court had no jurisdiction to force the plaintiff into a second agreement to be bound by the first defendant's oath; (ii) that the reference to the panchayat superseded the oath agreement; and (iii) that even if the plaintiff's position be put at its worst and he be taken to have resiled from the oath agreement, the Court had no jurisdiction to shut out his evidence and dismiss his suit.
4. As to the first point, it cannot be said as in the case reported in Athermankutti v. Chandroth Moideenkutty (1919) 10 L.W. 140 that the original oath agreement specified a particular date or hour for taking the oath. Seeing that both parties were agreed that the oath could not be taken validly after the time appointed by the Court, it seems to me that the original agreement of plaintiff to abide by the first defendant's oath must be held to subsist (subject, of course to the power of the Court to make arrangements for a fresh commission) always provided that there is nothing in the events which occurred at the time of the first commission which would indicate that the parties by common consent put an end to the agreement to abide by the oath. This leads to the second point, namely, whether there was any such common consent that the matter in dispute should be referred to arbitration and that the oath agreement should be treated as cancelled. Appellant quotes a recent case Shanmuga Reddiar v. Perumal Reddiar 1935 M.W.N. 370, in which the parties filed statements agreeing that the matter might go before an arbitrator and that it need not be decided by oath and it was held that a subsequent oath commission issued by the Court was invalid, as there was no subsisting agreement to abide by the oath. That decision, however, proceeded on facts which were more explicit than those of the present case. It is clear that on the morning of the 17th march 1933 there was an attempt to compromise the suit. I am not satisfied on the evidence that there was any agreement between the parties to treat this interference of mediators as a cancellation of the agreement to abide by an oath. It follows, therefore, that when the plaintiff wrongly tried to get a decree against the first defendant on the basis of the latter's refusal to take the oath and when he refused to obey the Court's direction to deposit funds for a fresh commission, he must be taken to have resiled from the oath agreement.
5. The question how the Court should act when a party to an oath agreement resiles therefrom presents certain difficulties. I do not, however, think that this Court has ever gone so far as to say that a party cannot resile from an oath agreement for good reasons. The Act itself in Section 12 lays down the procedure when the person who is to take the oath refuses to do so. No procedure, however, is prescribed in the Act for the contingency of a refusal by the challenger to abide by the agreement. It is argued that he should not be put into a worse position than that which Section 12 of the Act prescribes for a defaulting oath-taker and that the proper course is to make a record of the fact of the refusal of the challenger, to record such evidence as may be available and to draw such inference as may be justified in the circumstances of the case from the conduct of the party who refuses to carry out the agreement. There are cases in which it has been held that when the plaintiff having agreed to abide by an oath resiles from that agreement, the oath should be taken under the orders of the Court and should be treated as binding in spite of the plaintiff's refusal e.g., Kunhi Krishnan Nair v. Kunnath Kunhamed (1927) 28 L.W. 58 Bhagavathi Vannan v. Veera Vannan (1935) 42 L.W. 370 and the decision of a Bench in Thoyi Ammal v. Subbaroya Mudali (1889) 22 Mad. 234. None of these rulings, however, can be applied to a case like the present, in which an act of the plaintiff forms part of the ritual of the oath which has been agreed on, so that it becomes impossible to carry out the contemplated ceremony without the co-operation of the plaintiff. Certain observations in the case reported in Ayyakannu Nadar v. Muthiah Nadar (1906) 17 M.L.J. 99 have given rise to difficulties. The actual decision was to the effect that, when the plaintiff agrees to be bound by an oath of the defendant 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, the suit must be dismissed. But a Bench of this High Court has referred to this ruling, in the case reported in Thukku Goundan v. Kuppauda Goundan (1912) 17 I.C. 339 and has observed that if Ayyakkannu Nadar v. Muthiah Nadar (1906) 17 M.L.J. 99 means that the Court can prevent the plaintiff after he has resiled from the oath agreement from adducing his evidence the decision is erroneous. It is well established that if it is the person who has to take the oath that resiles, a decree cannot forthwith be passed and the procedure prescribed in Section 12 must be followed, vide Ulagappa Chettiar v. Peria Karuppan Chetty (1912) M.W.N. 361 A similar procedure has also been suggested by Devadoss, J., in the case of a default by the plaintiff who challenged the defendant to take the oath (vide Okkilikkara Siddayya v. Ambu Nair : AIR1925Mad1264 , and I am inclined to think that this is the better course to follow in a case such as the present. It seems to me quite clear that under the oaths Act there is nothing to justify a dismissal of the plaintiff's suit. The only legal basis for that dismissal must, therefore, be the default on the part of the plaintiff in obeying the Court's order to deposit Rs. 6 for the expenses of the second commission. I am very doubtful whether the trial Court was justified in insisting on this deposit. The plaintiff had agreed to pay the expenses of the original commission but he had not agreed to pay the expenses of a series of commissions and the circumstances which led to the failure of the first commission were such that he could not be blamed any more than the defendant for its failure and that neither of them is likely to have contemplated such circumstances when the original agreement was made. I am inclined to think that the fact that the parties had spent some three hours in discussing a ' possible compromise in the presence of mediators did not amount to a valid contract to cancel the original oath agreement, but it so altered the circumstances in which both parties stood as to give the plaintiff some justification for saying that the position was no longer the same as that in which he had agreed to abide by the defendant's oath. In such a case and in view of the objection of the plaintiff to the issue of a second commission, I am of opinion that the trial Court ought to have recorded his objection and proceeded with the trial of the suit, on the merits, drawing such inference as the circumstances might warrant from the conduct of the plaintiff. I do not think that this was a case in which the plaintiff should have been compelled to treat the oath agreement as though it subsisted when he was of opinion, rightly or wrongly, that it had come to an end. In the result, therefore, I allow the appeal and remand the suit to the trial Court for disposal in the light of the observations in this judgment, after recording such evidence as the parties may adduce. Costs will abide the result.
6. Leave to appeal granted.