( 397 )
Present: Lascelles C.J. and Wood Renton J.MUTTUSAMY v. MUTTUKARPEN.
85—D. C. Badulla, 2,326.
Derisory oath—Party challenging cannot withdraw from his engagement.
A litigant who had challenged his adversary to take the decisoi voath, and who has agreed to abide the result of the oath, cannotretract from his undertaking and escape from the obligation toabide by the oath.
'jpHE facts appear sufficiently from the judgment.
Tamhyah„ for the plaintiff, appellant, referred to Lekhraj Singh v.Duhlma Kuar,2 Segu Mohamadu v. Kadiravail Cangany?
Cooray, for the defendant (not called upon).
May 19, 1911. Lascelles C.J.—
I do not think that it is necessary to call on the other side. Inthis case the only question raised is whether the plaintiff, who haschallenged the defendant, and has agreed to abide the result of anoath taken by him with certain formalities, is able to retract fromhis undertaking and to escape from the obligation to abide by thedefendant’s oath. Now, it is obvious to me, that, if we concede theargument which has been addressed to us, we open the door wide foravoiding the conditions of the provisions of the Oaths Ordinance,and personally, unless some express authority is cited, I am notprepared to hold that a person who has consented to abide theresult of an oath is able to withdraw from his undertaking. I thinkthat the judgment of the District Judge is right, and that the appealshould be dismissed with costs.
1 3 Bat. 200.2 [1880) 7. L. R. 4 All 302.
8 [1908) n N. L, i?, 277, at page 283.
( 398 )
Wood Renton J.—
1 am of the same opinion, and, as the point is an interesting one;
I will add a few words. I do not think that, apart from anystatutory provisions, it would be open to a litigant in the positionof the appellant to withdraw from a solemn undertaking of this kindinto which he has entered in a Court of Justice. If that view iscorrect, then we must turn to the provisions of the Oaths Ordi-nance and see whether they confer upon him any privilege in thematter. There is nothing in the Oaths Ordinance which dealswith the case of a litigant who challenges another to take the oath.There is, however, a provision in section 9, sub-section (4), in favourof the person challenged, and one can easily see why such a provisionshould have been enacted. It would be practically impossible tocompel any person to fulfil an undertaking to take an oath. It doesnot result from that fact that a litigant, who challenges his adversaryto take the oath, should be allowed to withdraw from his engagement,and the introduction in the Oaths Ordinance of a special exceptionin favour of the party challenged seems to me to tell against theexistence of such a privilege. I agree that the appeal should bedismissed with costs.
MUTTUSAMY v. MUTTUKARPEN