( 62 )
Present: Mr. Justice Wood Renton.J3INNETAMBY u. VALLINATCHY et aL
C.R., Batticaloa, 11,445.
" Oaths Ordinance, 1895,” ss. 8 and9—Refusalof plaintiff to
take decisory oath after having agreed to take it—Dismissal of actionin consequence.
Where a party agreed to be bound by a decisory oath and then failedto take it, and where the form of oath nor its nature was stated,—
Held, that the case fell under sub-section (4) of section 9 of theOaths Ordinance, No. *9 of 1895, and that the Commissioner shouldtherefore have proceeded to record the reason for the refusal as-therein provided.
HIS was an action on a promissory note, in which the endorseesued the makers. The makers denied the endorsement, and
pleaded payment to. the payee. On the day of trial all that trans-pired was as follows:—
23rd August, 1906. Parties present save first defendant.
D. W. Iia'dramer, for the plaintiff.
Guruswamy (with him- Kandappa), for defendants.
Gumstvamy is prepared on behalf of his client to let judgment beentered, if plaintiff would take a decisory oath.
The plaintiff is prepared to do so.
G. W. Woodhouse,Commissioner.
The plaintiff has failed to take the oath. The action is dismissedwith costs.
G. W. Woodhouse,
The plaintiff appealed.
H. Prim, for appellant.—The dismissal is "wrong. It is notshown what the oath offered was. This is' important, for theOrdinance in section 8 provides against oaths which are repugnantto justice or decency, and which affect third persons. The SupremeCourt has condemned as forbidden an offer “ to swear on another'shead ” [see Hatingira v. Andrissa (1)]. Nor is it stated where theoath was to be taken. In Banda v. Banda (2) it was held that, itwas wrong to dismiss plaintiff’s action by reason of his failure toattend at a place where the defendant has elected to swear. Therefusal here is not merely arbitrary, as referred to in Narain Singhv. Bahu Singh (3). The appellant seems to have had good groundfor withdrawing. The case would therefore fall under sub-section
(1) (1900) 1 Browne 106.(2) 1 Tamhayah 35.(3) I. L. R. 18, AIL 46.
( 63 )
;(4) of section 9 of the Ordinance. If that be so, the dismissal is wrong, 1906*for the Commissioner should have recorded as part of the proceedings^ the nature of the oath or affirmation proposed, the fact that he was■asked whether he would make it and that he refused it, togetherwith any reason which he may assign for his refusal. " The witnesses,too, should have been called [lyanohamy a. Carolis Appu (1)].
Bedlick, for respondent.—No objection seems to have been takenas to the oath offered. Even the petition of appeal is silent as tothis objection. When parties to civil suits agree to be bound byan oath, it is conclusive. So held by Lawrie J. in Mohtdeen v. Nambi-rale (2). The plaintiff's, refusal after having first consented shouldnot be listened to, and his action is therefore rightly dismissed.
Pm?s, in reply.
7th November, 1906. Wood Renton J.—
In this case the plaintiff, appellant, as endorsee of a promissorynote for the sum of Rs. 120, has sued the defendants, who are themakers. In the answer the defendants admit the making of thenote, but they deny the endorsement to the appellant, and plead,further, payment in full to the plaintiff, and that the appellant washimself well aware of this fact. When the case came on to trialthe defendant’s counsel stated that he was prepared to allow judg-ment to be entered against them, ** if ”—and here I am followingthe very words of the Requests Court record—“ plaintiff would take adecisory “oath. ” The learned Commissioner then proceeds to recordthe fact that the plaintiff was prepared to take the oath in question,and he (the Commissioner) signs this entry. Immediately below hissignature he makes two further entries, which are as follows:–
*' The plaintiff has failed to take the oath.
M The action is dismissed with costs. ”
All the entries to which I have referred are under the same date,and so far as I can see the whole transaction took place at the sametime and in open Court. It appears to me—and the point was infact conceded here by counsel for the respondents^that this is theonly interpretation which the entries of the record, as they stand,will bear. There is nothing stated as to the Court having orderedthe decisory oath to be tendered in any other way than in the Courtitself. Under these circumstances, I have to consider the applicationof the Oaths Ordinance of 1895, which regulates proceedings ofthis kind. In virtue of that Ordinance, the Court is efnpoweredin any judicial proceeding to tender to, any party or witness, whois willing to be bound by it. an oath or affirmation which is common(1) (1900) 4 N. L. R. 78.(2) (1896) 3 N. L. R. 147.
( 64 )
1906/ amongst, or held obligatory by, persons of the race or persuasion 'toNovember!, which he belongs. If the oath so tendered by the Court is acceptedWood by the party or witness, it is the duty of the Judge, after the oath orRbhton j* affirmation has been ordered, to record the evidence which it isintended to safeguard; and the Ordinance goes on to provide thatevidence so given shall be conclusive proof against a party orwitness of the matter which he states. On the other hand, if theoath tendered has been refused—and my interpretation of thestatute on this point is covered by judicial decision (vide the case ofIyanohamy v, Carolis Apput which is reported in 4 N. L. R. 78)—itis the duty of the Court simply to record as part of the proceedings• the nature of the oath or affirmation proposed, and the fact that itwas tendered and refused, tbgether with any grounds which theparty or witness may choose to assign for such refusal. There is nopower under that section to enter judgment against the party who-,or whose witness, was responsible for the refusal. In my opinion,the whole proceedings of the learned Commissioner of Bequests inthe present case have been at variance with both the letter and thespirit of the Ordinance. I think that, even if the party or witnessto whom an oath is tendered accepts it, it is desirable that thenature of the oath and the circumstances under which it is adminis-tered, as well as the evidence which is given under its sanction,should be recorded, for if these cases come up in appeal we oughtto be in a position to see that the oath or affirmation tendered infact does really, satisfy section 8 of the Ordinance of 1895. Butwhere the decisory oath is refused (and I think this observationapplies also to a case of a person who at first agreed to be bound bythe oath, and afterwards, before he has taken it, withdraws hisconsent), it seems to me that the Court has no option. The casemust then be heard on its merits, and the refusal of the party orwitness to take the decisory oath is only an element, of which-account should be taken in weighing the value of his evidence.
I set aside the judgment and decree appealed against, and sendthe case baek for re-trial. It will be competent for the defendant'scounsel, if so advised, to renew at the second trial his formerproposed reference to a decisory oath. If such an offer is made, thelearned Commissioner of Requests should follow the procedurewhich the Ordinance lays down, and which 1 have also cventuredto put before him in the course of this judgment. If there is nooffer to be bound by a decisory oath, the case must be tried anddetermined in the usual way. I think the appellant should haveall costs of the Appeal and in the Court below.*
Appeal allowed: case remanded.
SINNETAMBY v. VALLINATCHY et al