1. The plaintiff-respondent in this case challenged the defendant-appellant under Section 9, Oaths Act, to take a particular oath on a specified day and the challenge was accepted, including a term that, if owing to plaintiff's failure to pay the cost of taking the oath, defendant did not take it, that should be treated as equivalent to his taking it. On the day fixed, as plaintiff did not pay defendant did not take the oath. He, however, in spite of plaintiff's opposition and application for a trial on the merits took it on a later day; and the District Munsif passed a decree in his favour. The lower Appellate Court in the order appealed against held that plaintiff's consent was only to be bound by the oath as originally agreed on, that he withdrew his consent on that agreement proving abortive and that he was entitled to a remand for a trial on the merits. It has been argued that this withdrawal was not open to plaintiff and did not, in fast, take place. But we deal with this part of the dispute on the shorter ground that the plaintiff's default in his part of the agreement was not a foundation on which the law could allow any decree to be founded. Section 11, Oaths Act, says that the evidence given in pursuance of the challenge shall be condusive proof of the matter stated. Section 12 says that a refusal to make the oath shall be recorded; and it has been held, for instance, in Moyan v. Pathukutti 31 M. 1 : 17 M.L.J. 545 : 3 M.L.T. 98 that such refusal is a relevant fact in a trial on the merits. But there is no provision, under which any legal effect follows on any other incident than the making of the oath or on any act or omission by the party, who gives the challenge. In these circumstances the agreement before us by which a legal result was to follow on the default of the challenger, plaintiff, was to that extent an attempt to introduce a method of decision which the law does not authorise and which can have no legal consequences. That part of the agreement, therefore, must be treated as inoperative and all argument founded on it must be rejected.
2. Defendant has then asked us to deal with the remainder of the agreement, which provides for the taking of the oath by him on a specified day and to hold that the oath he took on a later day is equally conclusive. Assuming that this part of the agreement is separable, we cannot construe it in the manner suggested. It is for defendant to show that his deviation from the terms of the agreement is immaterial and that the date specified in it is not of its essence. We see no reason for accepting and much for rejecting this view. It, moreover, is unsupported, so far as we have been shown, by authority. In the circumstances this contention also fails.
3. We must, therefore, confirm the lower Appellate Court's decision, with, however, the observation that at the renewed hearing it will be open to the District Munsif to consider the evidence as to plaintiff's conduct and his responsibility for defendant's failure to take the oath on the date originally arranged and to give it what weight it may deserve. The appeal against order is dismissed. In the circumstances there will be no order as to costs.