058-NLR-NLR-V-47-ANCHAPULLE-et-al-Appellants-and-MUDIYANSE-Respondent.pdf
Anchafulla v, Mudiyonse.
181
1946
Present : de Silva J.ANCHAPULLE et aL, Appellants, and MU1XTYANSE, Respondent.
310—C. R. Teldeniya, 724.
Decisory oath—Duty of Court to give sufficient directions.
Where parties agree to settle their case by the taking of an oath, theCourt should, in fixing the date for taking the oath, give directionswith regard to the person by whom the oath is to be administered andthe time and place where it should be administered.
^ PPEAT, from a decree of the Court of Requests, Teldeniya.
{1911) 14 N. L. R. 193.
wzDE SILVA J.—AnehapvUe v. Mudiyame.
8. R. Wijayatilake, for the defendants, appellants.
S. A. Marikar, for the plaintiff, respondent.
March 4, 1946. de Silva J.-—
The plaintiff in this case sued the defendants for damages incurredby him owing to the action of the defendants in taking possession of afield which had been given to thfe plaintiff for cultivation on ande basis.The defendants denied the claim of the plaintiff. On September 5,five issues were framed and at that stage the plaintiff challenged thedefendants to take an oath that the field was given to the plaintiff onlyfor one year on ande and the plaintiff did not repair the field and manurefor the maha season of 1944. The defendants accepted the challengeto take the oath in the Maligawa. It was moreover agreed between theparties that if the oath was taken, the plaintiff’s action was to be dismissedwith costs and if the oath was not taken, plaintiff was to have judgmentwith costs. After this was agreed to an order was made that the oathfees should be deposited by the plaintiff on September 12. It was alsoprovided that if the fees were not deposited, the plaintiff’s action wasto be dismissed with costs. On September 12, the oath fees were paidand the Commissioner ordered the oath to be taken on September 17.The oath was not taken on the 17th and on the 26th, Mr. Mudannayakostated that he was ill on the 12th and was not present in Court and thatthe defendants were unaware of the date for taking the oath and askedfor a further date to have the oath taken. The learned Commissionerrefused this application and entered judgment for the plaintiff as prayedfor with costs. The defendants appeal from this order and urge that theorder of the Commissioner-that the oath should be taken on September17 did not give sufficient details and did not appoint a Commissioner forthe purpose of administering the oath. They urge that if a Commissionerhad been appointed he would have probably communicated with themand they would have been in a position to arrange the time on which theoath was to be taken. There seems to be some substance in this con-tention. The Commissioner should have in fixing the date for taking theoath given directions with regard to the person by whom the oath wasto be administered and the time and place where it should be administered.In the circumstances, I set aside the decree of the Court of Requestsand send the case back for trial in due coulee. If the parties are stillwilling to abide by their agreement to take the oath, the Commissionershould fix a date for the purpose and give proper directions for theadministering of the oath. The appellant is entitled to the costs ofappeal, all other costs would be costs in the cause.
Appeal allowed ~