058-NLR-NLR-V-26-TIRUGANASAMBANTHAPILLAI-v.-NAMASIVAYAMPILLAI.pdf
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1925.
i
Present: Bertara C.J., Ennis J., and Jayewardene A.-J.TIRUGJJA S AMB AXTHAPIKLAI v, XAMA-SrrAYAMPILLAI.324—C. R. Jaffna, 16,107.
Dccisory oath—Agreement regarding the action—Failure to take the oath—Oaths Ordinance, No. 9 of 1695.
IWhere a party to an action undertakes to take the ilecisory oath
and agrees at the same time that the action should be decided in aparticular way according as he takes or does not take the oath.
Held, that judgment may be entered in terms of the agreement.
T
HIS case was referred to a Bench of three Judges by Jaye-wardene A. J. by the following judgment: —
Javewardbxb A.J.— '
This case raises a question of practical importance under theOaths Ordinance, No. 9 of 1895.
The plaintiff sued the defendant to recover a sum of Rs. 110.29.The defendant denied liability. On the day of trial, the followingagreement was come t-o: —
“It is agreed between the parties that the defendant briug intoCourt Rs, 100 on or before August 1, 1924, and that theplaintiff take oath at the Kandaswamy temple. If hedoes so, the plaintiff is to have judgment for the full,amount.
“ It is also agreed that if the oath be not taken, that the plaintiff s-action be dismissed, and defendant have judgment againstthe plaintiff for Rs. 100, with cost$.
“ It is also agreed between the parties that if the defendant fail*to bring the lis. 100 into Court, that the plaintiff havejudgment for his claim and costs. "
The oath was to be taken pn or before August 1, as the case was.to be called on that day. On the morning of August 1, the terms*of the'oath which the plaintiff had agreed to take was recorded, andthe oath was to be taken that evening at 6 p.m. at the Kandaswamytemple (vide proceedings of August 1). The plaintiff, when the-
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terms of the oath were reduced to writing, refused to take the oathin those terms. It is unfortunate that the terms of the oath werenot recorded in writing on the day the agreement was entered into.However, I find that the plaintiff did agree to take the oath recordedby the Commissioner.
The learned Commissioner, therefore, entered judgment in termsof the agreement of July 25. The plaintiff appeals against thisjudgment, and it is contended for him that on the refusal of theplaintiff to take the oath, the case should have been heard anddecided in due course. It seems to be clear that when a partywho agrees to take an oath refuses to do so subsequently, the casemust be heard in the usual way (Iyanohamy v. Carolis Appv,lSinnetamby v. VaUinatcliy,2 Fernando v. Perera 3 * Simon v. Silindu-hamy l).
But the difficulty arises when there is an express agreement thatif the oath is taken or not taken, the action should be decided in aparticular way.
In the cases above cited there was no express agreement that thecase should be determined in a particular way on the party who hadagreed to take the oath taking it or refusing to do so. However, inKurt v. Lapaya,5 there was an express agreement that if the plaintiffiook the oath, judgment should be entered for him, and that if hedid not do so, the action should be dismissed; and on the failure ofthe plaintiff to take the oath, his action was dismissed. HeSampayo J.. after referring to Shnan v. Silinduham.y (supra), heldthat the ca.se could not be dismissed according to the agreement ofthe parties, but that it should be heard on the merits. In a subse-quent case (Nonohamy v. Rodrigo#) De Sampayo J., on the analogyof the decision of the Full Bench in Mamoor v. Peer Moliamadv.rheld that if a party expressly agrees to submit to judgment if liedoes not take the oath, the Court may enter judgment on his failureto carry out his undertaking. I myself followed this judgment in acase which is not reported. In Fernando v. Perera (supra) and, Siman v. Silinduhamy (supra), although there was no express agree-ment as to the decision of the action in case, the oath was taken ornot taken, there is a strong implication to that effect, and judgmentwould have followed as a necessary consequence on the taking ofthe oath or on the failure to do so.
Our Oaths Ordinance is largely a reproduction of the IndianOaths Act, No. 10 of 1873, with some alterations which are notmaterial for the present purpose. Section 9 of our Ordinancecorresponds almost word for word to sections 9-12 of the Indian Act,
1925.
Jays war-dens A.J.
Tirugna-
sambaniha*
pillaiv.
vayampiUai
1 (1900) 4 N. L. R. 7S* (1011) 14 .V. L. R. 410.
8 (1906) 10 iV. L» R. 62.* (1919) 6 (J. W. R. 261.
3(1909) 12 N. L. R. 206)• (1933) I T. 0. L. R. 110.
' (1932) 6 V. L. li. 33.
1*£&
►TAVBWATt-UENI3‘
Tirugna-■ifunbattth<t-pillai v»tfamftoi-
vrtJjampiUai
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and iii support of his judgment in Fcvnaudo v. Pcvera (supw), WoodBenton C.J. (then Wood Benton J.) referred to two Indian decisions.In the first df the two cases referred to, there (Majun v. Nathkotki l),the Court was of opinion that the undertaking by the plaintiff thatif he failed to make the oath, the suit should be dismissed was not anadjustment of the suit so as to entitle the defendant to judgmentif the plaintiff committed a breach of his undertaking. This casefollowed the earlier case which Contains an important exposition ofthe law on the point. As the question is one of frequent occurrencein our Courts,, an authoritative decision is desirable. The questionson which I desire a decision are: '(Jet) If a party agrees to taketin oath, and al$o agrees at the same time that the action should bedecided in a particular way, if he takes or does not take the oath,cun judgment be entered in terms of the agreement, or must theaction be , tried in the usual way ? (2nd) Does the addition offurther terms to this agreement make any difference, if, forinstance, at the same time the defendant undertakes to bring the.sum claimed by the plaintiff into Court, and the plaintiff agrees , topay a penalty if, he does not take the oath?
I direct that these questions be submitted for argument 'anddecision before a Bench of three Judges. .
H. I* Pcfera, for plaintiff; appellant.—An agreement of the landin question is outside the scope of section 9 of the Oaths Ordinance.When the party who undertakes'to take the oath afterwards declines,the Court is bound to proceed with the action following the directionslaid down in sub-section (4).
In India it has been held, that aii agreement to dismiss an actionunder similar circumstances is not an adjustment of the actionwithin the meaning of section 408 of the Civil Procedure Code.
It is submitted that consent cannot empower a Court to do whatthe Civil Procedure Codes does not permit (2 G. L. R., p. 8$).This is ;not an immediate adjustment that is capable of being'embodied in a decree. Section 408 does not deal with> a conditionaladjustment, and cites Konnapalen Uthdtchadayan Haje v. PcroHo?Melodeh- Bamcn Nambiar 3 and Moyan v. Patliukutti*
James .Joseph, for defendant, respondent.—An agreement of thiskind is usual in our Courts. The parties have agreed to abide by theresult of the oath, .and there is not reason why they should not becompelled to adhere to its terms.- Cites Suppiah v. Abdulla,4
H. V. Perem, in reply.-^The decree under section 200 determinesfinally the rights .Of the parties.The decision on therightisnot
conditional. The payment of themoney is the peculiarconsequence
of the right determined.
i {1907) 17 Mad. L. J-. S4S.3 L L. R. 31 Mad. 1.
* {1809) 4 Mad. H, G. R. 422.4 {1924) 26 X. L. if. 79.
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.February 6. 1925. Bertram C-.J.—
Upon this reference I have come to the conclusion that thelearned Commissioner was in substance right, and that the appealshould be dismissed. It is clear from the authorities set out bymy brother Jayewardene in the reference that where a person hasundertaken to take a decisory oath under the Oaths Ordinance, heis at any time entitled to draw back, and that all that the Courtcan do in the circumstances is to take into account his vacillation asan element in the case. But as my* brother Jayewardene observesin the reference: “The difficulty arises when th$re is an expressagreement that if the oath is taken, the action shall be decided in aparticular way.” In this case a most explicit agreement providingapparently for all possible contingencies was drawn up and wassubmitted to the Court in accordance with the procedure prescribedin section 408. On tbe face of it this agreement constituted anadjustment of the action.
There are, however, certain very explicit Indian authorities whichdeclare that such an adjustment is not the kind of adjustmentwhich is contemplated by the section. These authorities start witha decision of the Madras High Court in the year 1869 (KonnapalenUthatchadayan Haje v. Perotta Meloden Ramon Nambiar (supra)).There it was said: “ That what is meant by this language is that theparties should agree upon some terms respecting the subject-matterof the suit which are capable of being embodied in a decree,whereby the suit would be disposed of. In the present ease therecertainly was no such agreement, but only an agreement that, if thedefendant should do certain things, a decree should be passedin favour of one party; and if they should fail to do those things,then in favour of the other party; so that what decree should bepassed would depend upon the result of an inquiry, whethersubsequently to the agreement certain acts had or had not beenperformed.’'
That case was followed by a decision of the Appeal Court ofMadras in which Subramania Aiyar J. reduced this question to theform of a small Code embodied in three propositions. See VasudevaShanbog v. Narain Pai.1 That authority was' further followed inanother Madras case (Etakkott Manmod Iiutti’s son Moyan v. Etak-kott Kuthayi's daughter Pathuhutii [supra) and Mtij&n v. Nathkothi2).Further, the case of Vasudeva Shanbog v. Narain Pai (supra) wasfollowed in the Allahabad High Court (Muhammad Zahur v. GhedaLai.c There the circumstances were somewhat different, but arevery interesting. The pleaders on both- sides signed and presentedto the Court a petition that, if upon a particular bond in thewitness’s possession it should be stated that certain money was
1 /. L. B. 2 Mad. 350 on p. 360.* /. X. B. 17 Mad. I* J. 545.
* L X. B. 14 AU. 141.
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Ttmgna-sambanf/Ht-pUlai r.Nattuuti-vayampiHai
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t
1925.received through the defendant, the Court should decree the suit..
Bertram otherwise the suit should be dismissed, with – costs. There the*C.J. previous authorities were recited and followed.
Tirugna- This is undoubtedly a series of authorities entitled to high respect..
The opinion formed by the learned Judges is expressed in forcible-Namari- and unqualified terms. I should prefer, if possible, to follow sovayampillni wejgj1ty a chain of authority. But I am unable to appreciate thereasoning on which these expressions of opinion are based, because-no explanation is given of that reasoning. I am unable to see-where parties have come together and have made an agreement-disposing of the subject-matter of the* action, subject to a particular-contingency, and have agreed that the suit shall be decided withreference to that contingency, and have provided for all alternative-results, why this should not be considered an adjustment of theaction within the meaning of section 408. It is quite true thatthere is a convenience in not leaving anything to be worked outwhen the decree is entered. But it is conceded that an adjustmentunder the section might well include a provision for accounts andinquiries. If that is so, I cannot see why an adjustment might notalso provide for the determination of some question in doubt in aparticular way. I cannot help being impressed with the form ofthe decree provided for in section 200 of the Civil Procedure Codewith reference to an action for pre-emption.
Mr. Per era very truly says that there the actual rights of theparties are determined, and the provision for the dismissal of theaction upon a contingency relates only to fulfilment of a subsidiarycondition. Nevertheless that decree is in such a form that it wouldnot be possible to ascertain which party was entitled to judgment.,unless some inquiry was made subsequent to the decree.
For these reasons, I am of opinion that the learned Judge wassubstantially right. I think, as a matter of fact, that the decreeought to have been entered up at once in pursuance of the learnedJudge’s order, and that there should not have been a delay until the*contingency contemplated was actually determined. That, how-ever, is a question of form. For these reasons, I would dismiss theappeal, with costs.
Ennis J.
I entirely agree. I know nothing in the Civil Procedure Codewhich would prevent parties coming to an agreement amongthemselves for the settlement of their disputes, and by consenthaving that agreement embodied in a decree of the Court. I alsoagree that the Indian cases, although strong, are not sufficientauthority for limiting the scope of our own section 408.
Jayewardene A.J.—
I agree with the conclusion arrived at by the rest of the Court.
Appeal dismissed.