062-NLR-NLR-V-25-RANKIRA-v.-SETUWA.pdf
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Present: Jayewardene A.J.
RANKIRA v. SETUWA.130—C. R. Oampola, 5,633,
Derisory oath—Oath to be administered in ike very terms agreed upon—Party agreeing to take the oath may refuse to take oath if the form isvaried—Party challenging cannot back out of challenge if failureto take oath was due to variation inform of oath.
Where a person agrees to take a specified oath, the oath, must beadministered in the very terms in which the oath is worded.
Where the failure to take the oath on the day specified was dueto the person administering the oath asking him to take the oathin a slightly altered form, he is entitled to insist upon his beingallowed to take the oath, and the party challenging is not entitledto withdraw from it.
'JpHE facts appear from the judgment.
Navaratnam, for plaintiff, appellant.—The oath that the appellantwas called upon to take was not precisely the same as the oath hehad agreed to take. The omission of the word sampoorana (full) fromthe former makes all the difference. The assertion that, in substance,the two oaths are the same does not solve the difficulty. A departurefrom the precise terms of the oath is opposed to both principle andauthority. The appellant is entitled to insist on his right to takethe oath in terms of the agreement. Counsel relied on Palaniappav. Sinnetamby.1
Schokman, for defendant; respondent.—There is no substancein the appellant’s contention that the two oaths materially differfor the word " full55 in the expression “ full discharge of the debt ”is a mere redundancy. If the Court is not disposed under the
1 {1913) 16 N. L. R. 236.
1928.
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circumstances to give defendant judgment at once, it must in view ofMankira «. the failure of the party challenged to take the oath on the date dulySetuwa, fixed, and the agreement being no longer binding on the partychallenging, now proceed to try the case in the ordinary course.Counsel cited Simon v. Silunduhamy.1
Navaratnam, in reply.—A clear distinction has been drawnbetween the position of the party challenging and that of the partychallenged. The party challenged may withdraw from his engage-ment, but not the party challenging. Vide Muttusamy v. Muttu-karpen.2
July 16, 1923. Jaybwabdbnb A.J.—
In this case the plaintiff sued the defendant to recover a sum ofRs. 300, being principal and interest due oh a mortgage bond. The.land mortgaged had, during the subsistence of the bond, becomethe property of the added defendant, intervenient. The addeddefendant filed answer and pleaded his title to the land, and addedthat there was nothing due to the plaintiff in respect of the saidbond. On January 27, 1923, when the case came on for trial,, theintervenient defendant challenged the plaintiff to take an oath atthe Maligawa, before the tooth relic, on January 31, at 11 a.m.,that “ the full amount claimed by the plaintiff is due to him, andthat the receipt annexed, D 1, was not given by the plaintiff tointervenient defendant in full* discharge of Kirisaduwa’s share ofthe debt.” If the plaintiff took the oath, judgment was to beentered in his favour as prayed for,'with costs ; if he failed to takethe oath, his action was to be dismissed, with costs. In terms ofthe agreement, the plaintiff went to the Maligawa on January 31,but refused to take the oath which was sought to be' administeredto him. He now seeks to justify his refusal on the ground that theoath so sought to be administered differed from the oath which hehad undertaken to take. It is conceded that the two oaths aredifferent, the oath which he agreed to take haying reference to afull discharge of Kirisaduwa’s share of the debt, while the oathwhich the priest wanted him to take had the words “ in dischargeof Kirisaduwa’s share of the debt,” the word “ full ” being omittedfrom the latter oath. The learned Commissioner says that thetwo oaths are “ substantially the same,” and that the plaintiffshould have taken the oath which the priest asked him to take.I am unable to agree with the learned Commissioner. I thinkwhere a person agrees to take a specified oath, the oath must beadministered in the very terms in which the oath is worded. Itis not possible for us to say that the oath which he was asked totake was substantially the same as the oath which he undertookto take, and that there was therefore no justification for his refusing1 {1911) 14 N. Lr R. 410.* {1911) 14 N.L.R. 397.
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to take the oath. The omission of the word “ full ” makes the oathwhich the priest wanted him to take different from the oath whichhe had agreed to take. In the circumstances, I think his refusalwas justified, that he is now prepared to take the oath in the termsin which he agreed to take it. The defendant says that plaintiffshould not be given an opportunity of taking the oath again. Hesays that the plaintiff on the first occasion lost courage and failedto swear before the tooth relic at the Maligawa, and that now hehas evidently mustered up sufficient courage to take what he saysis a false oath. The failure to take the oath was not due to anydesign or act on the part of the plaintiff, it was dueJx> circumstancesover which the plaintiff had no control* In such cases it has beenlaid down by this Court (see the case of PaJaniappa v. Sinnatamby{supra)) that a party is entitled to insist upon his being allowed totake the oath, and the party challenging is not entitled to withdrawfrom the agreement.* I would, therefore, set aside the judgment ofthe learned Commissioner, and direct that the plaintiff be given anopportunity of taking the oath which he had agreed to take in thevery terms of that oath as given in the record. The appellant isentitled to his costs in appeal, all other costs to be costs in the cause.
Set aside.
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1928.
Jayewab-DISKS A. J.
Rankira v.S&uwa