Pandrang Row, J.
1. These are appeals from the order of the Additional Subordinate Judge of Trichinopoly, dated July 11, 1931, setting aside in appeal the decrees of the District Munsif of Kulitalai, dated September 23, 1930, in O.S. No. 290 of 1928 and 498 of 1929, and directing the trial Court to restore the suits to its file and dispose of them after giving them opportunity to let in evidence. The plaintiff who is the same in both the suits challenged the defendant to take oath in a certain temple in a certain manner with regard to two principal allegations made in the plaint, and this challenge was accepted by the defendant. When a commission was issued for the taking of the oath and everything was ready, a difficulty arose by reason of the claim made by a temple servant of certain fee for the purpose of meeting 'Samprokshana' expenses as preliminary to the taking of the oath. The plaintiff would not pay the fee, and apparently the defendant did not offer to pay, and both the parties returned from the temple along with the Commissioner without the oath being taken. Later on the defendant offered to meet the expenses of a fresh commission as well as to pay the fee demanded by the temple servant. On this application by the defendant the plaintiff endorsed to the following effect: This being a fresh offer, I am not willing to agree to it.' The District Munsif instead of passing an order on this application proceeded to pronounce judgment in the suit dismissing the same on the ground that the plaintiff had refused to allow the oath to be taken, and that in consequence under the Oaths Act there was no evidence in support of his case.
2. The plaintiff appealed and the Subordinate Judge in appeal took a different view and held that the only course open to the trial Court in the circumstances was to have gone on with the trial of the suit after taking such evidence as was adduced by both sides after making such provision as was necessary to compensate the defendant in the matter of costs.
3. The point for decision in these appeals therefore, is, the facts being as stated above, what is the legal position of the parties so far as the further disposal of the suit is concerned. Two views are possible, and two views have actually been adopted by different Benches of this High Court. One view is given expression to in Umayammi v. Muthiah Nadar 17 M.L.J. 99. The other view is set out in Athermankutti v. Chandroth Moideenkutti 10 L.W. 140 : 52 Ind. Cas. 619 : A.I.R. 1919 Mad. 615 : (1919) M.W.N. 535 and Thukku Goundan v. Kuppanna Goundan 12 M.L.T. 613 : 17 Ind. Case. 339.
4. There are other cases in which this question has been referred to, but it is clear that these two different views cannot be fully reconciled. It appears to me that in cases of this kind where the form of the oath agreed to itself involves the participation of the person who agrees to be bound by the oath of the other side, and where the failure to take the oath is wholly attributable to the act or omission of the person who agreed to be bound by the oath, the result in law should be as if the oath had been taken. Otherwise, it would be open to him to resile from his offer to be bound by the oath at any time he pleases and for no reason whatever. In the present case, however, it is not clear that as a matter of fact the non-taking of the oath by the defendant was really due to the failure of the plaintiff to be present at the time of taking the oath. There was only one occasion on which the oath was offered to be taken and the non-taking of the oath on that occasion cannot obviously be attributed to any unreasonable conduct on the part of the plaintiff. The non-taking of the oath on that occasion was due to the unexpected demand of the temple servant which neither side was upreared to meet at that time, and there was no subsequent attempt made actually by the defendant to take the oath, nor did the trial Court direct the issue of a fresh commission for the purpose of taking the oath, and direct the plaintiff to be present at the time in order to co-operate in the taking of the oath as agreed to. If there had been such an order, and if nevertheless the plaintiff had refused to co-operate, it would have been quite reasonable on the part of the trial Court to have dismissed the suit as if the oath had been taken. But as this was not, done, I agree with the lower Appellate Court that the dismissal of the suits at that stage was not right. I do not, however, concur with the lower Appellate Court's view that the only course now open to the trial Court is to try the suit in the ordinary way without any reference to the plaintiff's offer to be bound by the oath of the defendant. The trial Court should issue a commission at the cost of the defendant directing the taking of the oath as agreed upon on a day to be fixed, and direct the plaintiff to be present on that occasion in the temple in question. If the plaintiff fails to be present, then the trial Court will deal with the case as if Section 12 of the Oaths Act applies. If, on the other hand, the defendant is not willing to take the oath or to meet the expenses thereof, the suit will have to be heard as directed by the lower Appellate Court.
5. The order of the lower Appellate Court is modified accordingly. The costs of these appeals as well as the costs in the lower Appellate Court will abide the event and should be provided for in the revised decree to be passed by the trial Court.