Decided on August 22,1955



- (1.) THE question that arises for consideration in this second appeal is whether the trial court was right in passing a decree against the 2nd defendant on the ground that he resiled from his agreement to abide by the oath of the plaintiff. THE suit was once decreed on account of the failure of the second defendant to pay his share of the batta in connection with the taking of the oath. An appeal was preferred to the District Court as A. S. No. 99 of 1125 and the case was remanded as the second defendant represented that he was willing to deposit the batta. During all these proceedings the relevant enactment which applied was the Travancore Civil Procedure Code. After remand, when the case came up for hearing on 7. 6. 1951 the second defendant filed a petition for permission to resile from the agreement. THE lower court dismissed the petition and decreed the suit. By that time the Indian Code of Civil procedure had come into force in the Travancore area. Against this an appeal was preferred to the District Court. It was dismissed. Now it is contended on behalf of the second defendant that the decree passed without going into the merits of the case after the coming into force of the Indian Code of Civil procedure was irregular and hence it is to be set aside and the case remanded for fresh trial according to law.
(2.) IN the Travancore Civil Procedure Code, in O. XXIII, r. 4, dealing with settlement by oath it was definitely laid down that "if any party withdraws or refuses to take the oath without lawful excuse the court may decide the case against him or pass such other order as it deems proper. " There is no corresponding provision in the INdian Civil Procedure code. S. 10 of the INdian Oaths Act refers to the administration of oath and s. 11 says that the evidence of the oath shall be a conclusive proof of the matter stated. S. 12 deals with the procedure to be adopted in case of refusal to make oath. That contemplates only the recording of the said fact. Thus, the law as it now stands after the extension of the INdian Civil Procedure Code to this State does not authorise the court to pass a decree merely because a party has resiled from his original agreement to abide by the result of an oath. This position has been clearly laid down in decisions of the INdian High Courts. IN moyan v. Pathukutty (I. L. R. 31 Mad. 1) the plaintiff agreed that if he failed to take the proposed oath the suit might be dismissed. When the trial court dismissed the suit on his failure the High Court held that the dismissal was irregular and the same had to be decided on merits though the fact of refusal recorded as provided in S. 12 of the Oaths Act might be used as part of the evidence. IN Raja of Venkatagiri v. Chinta Reddi (A. I. R. 1914 Mad. 449)regarding a party's rights in a suit it is observed as follows: "notwithstanding the pendency of a suit the parties may settle their disputes as they like by any lawful arrangement and the court is then bound to give effect to the settlement. Again, they may ask the court to refer the questions in dispute to an arbitrator in which case though the decision of the cause is primarily transferred to another tribunal the court still retains some control over the proceedings. The parties may also enter into agreement making the oath of one of them conclusive evidence of all or any of the facts in issue between them. This again is subject to the control of the court Our attention is not drawn to any rule or principle which would compel a party to adhere to any agreement by him that the suit may be decided in a manner different from that prescribed by law". These Madras decisions are referred to and followed in shah Nawas v. Ghulam Mohammed (A. I. R. 1946 Lahore 78) cited on behalf of the appellant. So before the oath is taken a party has a right to resile and the only consequence will be that the court might take into consideration the fact of such refusal as part of the evidence against him. Such a party has the liberty to demand an adjudication of the question involved in the suit on merits. So the law under the INdian Code is clear. What is contended on behalf of the plaintiff is that though the INdian Code was in force at the time of the passing of the decree, as the remand by the appellate court was for the specific purpose of giving an opportunity to the defendant to carry out the agreement regarding oath and all the prior proceedings were under the travancore Civil Procedure Code it is the provision of the same that applied. There is no force in this argument. The remand reopened the whole case. The effect of the said order was to start the case afresh from the stage at which it was posted for deposit of batta. So when the INdian Code came into force during the pendency of the suit a decree like the one passed here after that is clearly irregular. In the result, the decree passed against the second defendant is set aside and the suit remanded for fresh trial and disposal according to law as regards him, The costs in the appeals will abide the result of the suit and will be provided for in the decree of the trial court.;

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