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Present: Pereria J.
PALANIAPPA v. SINNATAMBY.
71—0. R. Colombo, 30,113.
Decisory oath—Oath not taken by accident—Party challenging cannotwithdraw from undertaking to be bound by oath.
If the party who has consented to take an oath designedly ornegligently omits to do so at the time and place fixed, the oppositeparty may be allowed to refuse to continue to be bound by hisundertaking; but where the omission is due to pure accident or tounforeseen causes over which the party has no control, it will bemanifestly unreasonable, and, indeed, it will lead to an undesirableevasion of a solemn agreement entered into in open Court, to allowthe opposite party to withdraw from his undertaking to be boundby the oath. The Court should in all cases adjudicate upon thesoundness of the reasons given for the omission.
r£lHE facts appear sufficiently from the judgment.
Arulanandam, for plaintiff, appellant.—The Commissioner waswrong in refusing to adjudicate upon the circumstances which ledto the plaintiff’s failure to take the oath. Supposing plaintiff was
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run over by a motor oar while on his way to the temple to take theoath, he had a reasonable excuse for failing to attend at the temple.The Commissioner ought to be satisfied before proceeding to trialthat the plaintiff kept away from the temple by design. Here thereis no such finding. Counsel cited Bam Naran Singh v. Babu Singh,1
Jayatileke, for the defendant, respondent.—The respondent wentto the temple on the appointed day, but did not find the appellantthere to take the oath agreed. The defendant was not thereafterbound by the challenge. [Pereira J.—Would he not be bound if theplaintiff was prevented by accident?] Even then the defendantmay withdraw from the challenge, as the parties agreed to takethe oath on a -specified day, at a specified hour, and at a specifiedplace. [Pereira J.—That would be so if there was such an agree-ment. But here there is nothing more than a mere agreement to bebound by the oath.] The Commissioner has fixed a date. [Pereira
J.—But the parties did not make that a term of the? agreement.]
Cur. adv. vult.
April 24, 1913. Pereira J.—.
In this case it appears that the defendant offered to be bound byan oath to be taken by the plaintiff in a Hindu temple at Eotahena.The plaintiff failed to take the oath, and thereupon the Commissionerproceeded with the trial in spite of objection taken thereto by theplaintiff's counsel. The contention in the Court below was thesame as that pressed in appeal, namely, that the omission of theplaintiff to take the oath was due to accident. The appellant'scounsel has stated, without contradiction by the other side, thathe moved the Commissioner to decide, before proceeding with thetrial, the question whether the plaintiff's omission to take the oathwas due to accident, but that the Commissioner thought that thequestion was irrelevant. It appears from the judgment that theCommissioner was of opinion that, whether the omission was due toaccident or design, the so-called commission issued to some officer ofthe Court to administer the oath having expired, the defendantceased to be liable to be bound by the plaintiff’s oath. I cannotassent to that proposition. When a party to a judicial proceedingagrees to be bound by an oath to be taken by anotherparty, he cannot be allowed to withdraw from his undertaking,except for reasons which the Court considers to be sound. Thecase of Ram Naran Singh v. Babu Singh 1 cited by the appellant'scounsel is in point. If the party who has consented to take an oathdesignedly or negligently omits to do so at the time and place fixed,.the opposite party may be allowed to refuse to continue to be boundby his undertaking; but where the omission is due to pure accident orto unforeseen causes over which the party had no control, it will bei (18m I* L. R, 18 All. 46.
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manifestly unreasonable, and, indeed, it will lead to an undesirableevasion of a solemn agreement entered into in open Court, to allowthe opposite party to Withdraw from his undertaking to be boundby the oath. The Court should in all cases adjudicate upon thesoundness of the reasons given for the omission. The order on thisappeal will be that the case do go back to enable the Commissionerto adjudicate upon the soundness of the reason given by the plaintifffor his omission to make oath as agreed upon at the time andplace appointed for the purpose. If he rules in his favour, and theplaintiff makes oath thereafter, the judgment appealed from willbe vacated by the Commissioner and judgment entered up in termsof the agreement of December 3, 1912. Otherwise the presentjudgment will stand. The appellant will have his costs of appeal.
PALANIAPPA v. SINNATAMBY