1. The suit in this case was one in ejectment. The plaintiff obtained a decree in the District Munsif's Court. On appeal, that judgment was reversed. When the appeal came on for hearing on the 30th March 1911, the plaintiff offered to be bound by an oath to be taken by the defendant at a temple in a certain form. The defendant agreed to make the oath. The lower Appellate Court has found that the plaintiff attached further conditions as to the way in which the oath should be made when both the parties were at the temple for the purpose of the oath. The defendant refused to make the oath observing the further conditions imposed by the plaintiff. The oath was in consequence not made. The judgment of the Appellate Court dismissing the plaintiff's suit is not based on the ground that plaintiff resiled from his agreement to be bound by the defendant's oath or that he prevented him from making the oath, but is based on the merits of the suit. The plaintiff has appealed against that judgment.
2. The appellant and the Pleader who appeared for him before the Judge, have both put in affidavits stating that the appeal was never heard on the merits. This statement, has not been denied on the defendant's side. We accept the statements contained in those affidavits and must, consequently, hold that the Judge was wrong in dismissing the suit on the ground on which he did without hearing arguments.
3. It is argued by Mr. Seshachari for the respondent that the plaintiff having varied the agreement with regard to the oath and thereby made it impossible for the defendant to take it, he must be taken to be bound by his offer in the same manner as if the defendant had made the oath in accordance with the original agreement. He is not able to cite any provision in the Oaths Act which would support such a contention. The Act provides (section 11) that 'If an oath is taken...the evidence so given shall, as against the person who offered to be bound as aforesaid, be conclusive proof of the matter stated 'We find it difficult to see how an oath which is not given can furnish any evidence Section 12 provides that: 'Where one of the parties offers to give evidence on oath but afterwards refuses to do so, he shall not be compelled to make it.' But the Court is to make a record of the fact of his refusal. But there is no provision for a case where a party who offers to be bound by the oath made by another person afterwards refuses to be so bound. There is no reason why the contract which he entered into should not be held to be binding on him. In such a case, if the oath be taken by the other party in accordance with the agreement originally entered into, it must furnish conclusive proof of the facts to which the evidence given on oath relates. The respondent's Vakil goes further and argues that a party who agrees to be bound by an oath of the opposite party but afterwards resiles from the agreement should be bound by his agreement as if his opponent had performed his part, although his opponent has not, as a matter of fact, performed his part of the contract by taking the oath. We cannot agree with this contention. Mr. Seshachari relies on a case reported in Umayammai v. Muthiah Nadar 17 M.L.J. 99. The facts of that case do not appear in the report. The learned Judges observed: 'If the party who has agreed to be bound prevents the oath being taken, the other party is, in our opinion, 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.' Possibly, the judgment was founded on the special circumstances of the case. If that be so, there is nothing more to be said about it. It does not appear from the judgment whether the plaintiff failed to give any evidence after he had repudiated his agreement to be bound by his opponent's oath. If so, he would, of course, have only himself to blame. The learned Judges do not say that the plaintiff was prevented by the Court from adducing any other evidence he had in support of his claim. We do not think it could have been intended to lay down that the Court would have any right to prevent him from giving evidence on the mere ground that he refused to be bound by the opponent's oath. If the learned Judges intended to lay down any such rule, then we are, with all respect, unable to follow it. In Moyan v. Pathu Kutti 3 M.L.T. 98 the learned Chief Justice, who was a party to the judgment in Umayammai v. Muthiah Nadar 17 M.L.J. 99 explains that case. He observes (see page 3): 'In that case, the plaintiff's guardian agreed to be bound by the defendant's oath to be made in a certain form which required something to be done by the plaintiff's guardian. The defendants attended for the purpose of making the oath in the form agreed to but the plaintiff's guardian declined to perform his part of the ceremony and the oath as agreed upon was not made for this reason.' In Moyan v. Pattu Kutti 3 M.L.T. 98 the plaintiff who had agreed to take the oath refused to do so afterwards. It was held that that did not deprive him of the right to give other evidence in support of his claim. We are of opinion that the defendant is entitled to enforce the plaintiff's agreement that he would abide by his oath to be taken according to the agreement originally entered into. We are unable to accept the argument that the defendant rescinded the contract by his refusal to take the oath in accordance with the fresh conditions insisted on by the plaintiffs. We reverse the decree of the lower Appellate Court. As Mr. Seshachari, the Vakil for the defendant, says that his client is still willing to take the oath, he must be given an opportunity to give evidence on oath in the manner originally agreed upon between the parties. If he does so, the evidence so given will be conclusive evidence of the facts to which the evidence relates. If he refuses to do so, then the District Court must proceed to hear the appeal on the merits. The decree of the Appellate Court is set aside. The appeal is remanded to the District Court for fresh disposal according to law. The costs of this second appeal will abide the result.