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Present; Jayewardene A.J.
UKKU MENIKA v. APPUHAMY.
211—C. R. Badulla, 4,556.Derisory oath—Undertaking by plaintiff and his witnesses—Failure ofone witness to take the oath—Dismissal of action.
An undertaking to refer the decision of an action to the test of anoath may provide that the oath be taken by a party to the action,a witness, or by a party and a witness.
A PPEAL from a judgment of the Commissioner of Requests,
^ Badulla. The facts appear from the judgment.
H. V. Perera, for plaintiff, appellant.
R. C. Fonseka, for defendants, respondent.
October 27, 1925. Jayewabdene A.J.—
In this case the plaintiff sued the defendants for declaration oftitle to a portion of a field called Gedera-arawa. The defendantsfiled answer claiming the portion in question as a part of theirland Narangahawatta.
On the day of trial, after a good deal of evidence had beenrecorded, the defendants challenged the plaintiff, Geheterala, exArachchi, and the Arachchi of Morahela to take their oaths atKataragama Dewala “ that the plaintiff cultivated the land indispute as a paddy field till he planted it with plantains and otherplants about five years ago.”
The ex Arachchi and the Morahela Arachchi were the plaintiff’switnesses. The challenge was accepted by all three. If theoath was taken, judgment was to be entered for the plaintiff asprayed for, with costs. If the oath was not taken, the plaintiff’saction was to be dismissed, with costs. The oath was to be takenon the very day the challenge was made and accepted. The plaintiffand the Morahela Arachchi took the oath, but Geneterala, exArachchi, declined to do so.* Thereupon the learned Commissionerdismissed the plaintiff’s action, with costs, in terms of the agree-ment of the parties.
The plaintiff appeals, and on his behalf several contentions areraised. It is said that the plaintiff, or at least Geneterala was undera mistake of fact, as the latter did not understand clearly theterms of the oath he had to take, and that as the agreementdid not provide for a contingency like the present, where one ofthe three persons agreeing to take an oath fails to do so, the case
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J A YE WAR-DENS A.J.
should have been decided on evidence. Counsel also proposed toread an affidavit in support of his appeal. I refused to allow himto do so. I do not believe that there was any mistake. It was notsuggested in the lower Court that Geneterala’s, acceptance of thechallenge was due to any misapprehension on his part. It is madefor the first time in appeal. The terms of the oath were clear.The defendants agreed to be bound by the oath if it was taken byall the three persons named by them. If all these three personshad not agreed to take the oath, the defendants1 challenge wouldnot have been accepted, and the suggestion to have the case decidedon oath would have fallen through, and the case would have beenfought out on evidence. If the plaintiff had suggested that if anyof the persons failed to take the oath the case should be tried onevidence, I am sure the defendants would have withdrawn theirchallenge. I do not think there is any substance in the plaintiff’scontention.
It has been held in the case of Tirugnasambanthapillai v. Namasi-vayampillai1 that where a party to an action undertakes to takea decisory oath and agrees at the same time that the action shouldbe decided in a particular way according as he takes or does not takethe oath, judgment may be entered in terms of the agreement. I donot think it makes any difference whether the decisory oath is to betaken by a party to the action, or by a witness or witnesses, or by aparty to the action and a witness. See section 9 (1) of the OathsOrdinance, 1895.
Such an agreement is in every way a lawful one, and has to beconsidered an adjustment of the action under section 408 of theCivil Procedure Code in view of the judgment cited above. Thedismissal of the plaintiff’s action is right, and the appeal must bedismissed, with costs.
1 (1925) 26 N. L. R. 344.
UKKU MENIKA v. APPUHAMY