056-NLR-NLR-V-12-FONSEKA-et-al.-v.-PERERA.pdf
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FONSEKA el at. b. PERERA.V. It., P,mature. 8,889.
1909.
July .19.
T
HE plaintiffs sued the defendant to recover a sura of Rs. 104,being balance, principal, and interest due on a promissory
note dated March 5, 1903.
The defendant filed answer admitting the making of the note,and pleading payment of the whole amount due on the note.
On the day of trial the following proceedings took place :—
“ Mr. Dias, for plaintiff.
“ Defendant present.
“ Defendant challenges plaintiffs to swear at the Awasa Viharethat he (plaintiff) did not receive the amount of the promissorynote. Plaintiff agrees.
“ Judgment to follow swearing.
“ Court Mudaliyar to administer the oath.”
The plaintiff having failed to take the oath, the Commissionergave judgment for the defendant.
The plaintiff appealed.
Ta.inba.yah (with liim II. A. Ja.y'ewardeue), for the plaintiff,appellant.
L. Pereira. for the defendant, respondent.
Cur. udv. uull.
July 19, 1909. Wood Renton J.—
The appellants sued the respondent to recover a balance, ofRs. 104, alleged to be due on a promissory note for Rs. 311*75,made by the respondent in their favour. The respondent pleadedpayment, the burden of proving which, of Gourse, rested on him.At the hearing, however, he challenged the first appellant to swearat the Awasa Vihare that he had not been paid in full. The firstappellant agreed. The journal entry adds : “ Judgment- to followthe swearing,” and the first appellant signed the entry to that effect.There was here, therefore, an offer by the respondent to be boundby the result of, and an agreement by, the first appellant to take,the oath proposed, and if that agreement had been carried out, theevidence given would no doubt have been immediately decisive ofthe case. The first appellant, however, failed to take the oath, andon the evidence I am prepared to infer that his default was wilful;and on proof of the fact the Commissioner of Requests at once gavejudgment for the respondent. Counsel on both sides agreed thatthe fate of this case should be governed by my decision in
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,1909.July 19.
WoodRenton J.
the case of Fernando v. Perera.1. For the reasons that Ihave given in my judgment in that case, I set aside the deoreenow under appeal. The parties were acting, and must be takento have been purporting to act, under ‘The Oaths Ordinance,1895.” Under that Ordinance the refusal, or failure under circum-stances tantamount to refusal, of a party challenged to take thejudicial oath is not in itself a ground for deciding the suit againsthim. It is a circumstance to be recorded and weighed in disposingof the case on the merits. This view was taken by the High Courtof Madras in Majan v. Palhukutti,* a case in which there was a farstronger agreement than can be alleged here. While setting asidethe decree, however, I merely send the case back for further inquiryand adjudication on the merits. The evidence already taken,including that as to the appellant’s default to abide by his agree-ment, may stand. All costs must be costs in the cause.'
Appeal allowed ; case remitted.