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Present: De Sampayo J. and Schneider A.J.
PITCHE v. ANNAMALAI CHETTY.
80—D. G. Kurunegala, 7,265.
Derisory oath—Challenge by next friend of minor plaintiff—Special sanctionof Court not (Stained—Agreement to take oath a/ a dewale—Oathtaken at the first step.
The next friend of the minor plaintiff challenged a witness forthe defendant to take an oath at the Rambathe dewale that C paidthe amount of the mortgage due to her husband. It was agreedthat, if the oath was taken, the plaintiff’s action should be dismissed.
Held, that the taking of the oath at the first of a series of stepsof the temple was not a compliance with the direction that theoath should be taken at the dewale.
Held further, that the agreement that the plaintiff’s action bedismissed if the oath be taken was in the nature of a compromise ofthe plaintiff’s claim, and should have had the special sanction ofthe Court.
rj~^HE facts appear from the^udgment.
Weeraswiya (with him Nagatingam), for appellant.
Arulanandan, for respondent.
October 6, 1920. De Sampayo J.—.
I think this case has not been rightly disposed of in the DistrictCourt. The plaintiff, who is a minor, brought this action througha next friend for declaration of title to a certain land which had beenseized by the defendant in execution of a writ against a third partyand unsuccessfully claimed by the plaintiff. The defendant deniedthe plaintiff’s title, and set up certain other defences. The issuesstated are not very illuminating, but. they were “ whether theplaintiff was the absolute owner of the share of the land he claimed,and was the saidshare liable to beseized under thewrit ? ” Evidencewas called on behalf of the plaintiff, and at a certain stage, of theproceedings the plaintiff, meaning by that the next friend of theplaintiff, challenged a witness for the defendant, a woman, namedUkku Menika, to take an oath at the Rambathe devale that CopraTamby and Kutfcamassa Tamby paid the amount of the mortgagedue to her husband. It is not very clear how this question wasrelevant to the dispute as to title. But it is not necessary to gointo that .matter. The witness accepted the challenge, and it wasagreed that, if the oath was taken, the plaintiff’s action should bedismissed with half the costs, and the land declared to be liable to besold under the defendant’s writ. The Court then ordered that ehe
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oath be taken in the presence of the Court peon Siyadoris onJanuary 31 at 2 p.m. To me it is very astonishing that a Courtpeon should be entrusted with such a responsible duty. But theground on which the plaintiff afterwards attempted to get over theproceedings connected with the oath was that the oath was nottaken by the witness as directed in respect of place and time. Inthe original order the Court noted that the case should be oalled onFebruary 2, meaning, I suppose, thatthe oath would in the meantimehave been taken and a report to that effect would be before theCourt. When the'case was called on February 2, the Court hadbefore it a report of the peon that the oath was duly taken. At thesame time the plaintiff submitted a petition to the Court, and also areport of the police officer to whom he had complained as to theirregularity, pie Court peon was examined by the Court, but anapplication on the part of the plaintiff to call two persons, who wereadmittedly present at the taking of the oath, was disallowed. Theparticular reason for refusing to hear the plaintiff’s witnesses was that,according to the Judge, the plaintiff was not consistent with himselfas regards the objections. The police officer’s report only statedthat the plaintiff had complained that the oath was taken on thefirst step of the dewale, and nothing is stated there as to the time.But the Court failed to notice that, in the petition which was pre-sented at the same time, both the objections were stated, and,therefore, there was no attempt on the part of the plaintiff to putforward a different case from what he had previously relied on.However all these things may be, the point is whether in the circum-stances the oath was rightly taken as directed, and whether it is notwithin the power of the plaintiff to object to the proceedings adoptedby the next friend. It seems to be agreed that the oath was takenon the first step of the dewale. It appears that the dewale is anancient temple, some eight miles from Kurunegala, and probablyit is one of those temples which have a series of a steps in front ofit for people to enter. I cannot myself regard the taking of theoath on the first step of such a temple as a serious compliance withthe direction that the oath should be taken at the dewale. The gistof the proceedings is that a party puts the opposite party or a wit-ness on the obligation to take a solemn oath in a sacred place.Taking the oath in any place outside the dewale itself does not appearto me to be a compliance with the requirement. Moreover, thisarrangement is in the nature of a compromise of the plaintiff’s claim.It seems to me that for that purpose the next friend should have hadthe special sanction of the Court as required by section 500 of theCivil Procedure Code. There was no such sanction, and the Court,I think, ought now to discountenance the proceedings by whichthis compromise was effected, as was remarked in similar circum-stances in the case of Kiri Menika v. Punehirala.1 It was the duty
11 Cur. L. R. 13.
of the Court to protect the interest of the minors, even if the nextfriend was. inclined to prejudice them. That same ease is likewisean authority for the principle that, even if a proceeding of this kindbe taken by the next friend, he himself would be able to withdrawfrom it. In this case it is the minor who wishes to withdraw fromit, assisted as he may be by the same next friend, and I think theCourt ought to see that justice is done by having a proper trial ofthe case instead of making it depend upon doubtful proceedings,like the one before a Court peon. I would set aside the judgmententered, and send the case back, in order that the Court might itselfhear the case and determine it on evidence. In the circumstances,there is no need to make any order as to costs.
Schneider A.J.—I agree.
PITCHE v. ANNAMALAI CHETTY