Sinnetamby V. Vallinatchy Et Al.

Present : Mr. Justice Wood Renton.

SINNETAMBY v. VALLINATCHY et al.

C. R., Batticaloa, 11,445.

Oaths Ordinance, 1895," ss. 8 and 9-Refusal of plaintiff to take decisory oath after having agreed to take it-Dismissal of action in consequence.

    Where a party agreed to be bound by a decisory oath and then failed to take it, and where the form of oath nor its nature was stated,-

    Held, that the case fell under sub-section (4) of section 9 of the Oaths Ordinance, No. 9 of 1895, and that the Commissioner should therefore have proceeded to record the reason for the refusal as therein provided.

    THIS was an action on a promissory note, in which the endorsee sued the makers. The makers denied the endorsement, and pleaded payment to the payee. On the day of trial all that transpired was as follows:-

    23rd August, 1906. Parties present save first defendant.

    D. W. Kadramer, for the plaintiff.

    Guruswamy (with him Kandappa), for defendants.

    Gurusivamy is prepared on behalf of his client to let judgment be entered, if plaintiff would take a decisory oath.

    The plaintiff is prepared to do so.

G. W. WOODHOUSE,
Commissioner.

    The plaintiff has failed to take the oath. The action is dismissed with costs.

G. W. WOODHOUSE,
Commissioner.

    The plaintiff appealed.

    E. H. Prins, for appellant.-The dismissal is wrong. It is not shown what the oath offered was. This is important, for the Ordinance in section 8 provides against oaths which are repugnant, to justice or decency, and which affect third persons. The Supreme Court has condemned as forbidden an offer " to swear on another's head " [see Hatingira v. Andrissa (1)]. Nor is it stated where the oath was to be taken. In Banda v. Banda (2) it was held that it was wrong to dismiss plaintiff's action by reason of his failure to attend at a place where the defendant has elected to swear. The refusal here is not merely arbitrary, as referred to in Narain Singh v. Babu Singh (3). The appellant seems to have had good ground for withdrawing. The case would therefore fall under sub-section

Foot Notes:

(1) (1900) 1 Browne 106.
(2) 1 Tambayah 35.
(3) I. L. R. 18, All. 46.

(4) of section 9 of the Ordinance. If that be so, the dismissal is wrong, for the Commissioner should have recorded as part of the proceedings " the nature of the oath or affirmation proposed, the fact that he was asked whether he would make it and that he refused it, together with any reason which he may assign for his refusal. " The witnesses, too, should have been called [ Iyanohamy v. Carolis Appu (1)1.

    Redlich, for respondent.-No objection seems to have been taken as to the oath offered. Even the petition of appeal is silent as to this objection. When parties to civil suits agree to be bound by an oath, it is conclusive. So held by Lawrie J. in Mohideen v. Nambirale (2). The plaintiff's refusal after having first consented should not be listened to, and his action is therefore rightly dismissed.

    Prins, in reply.
   

    7th November, 1906. WOOD RENTON J.-

    In this case the plaintiff, appellant, as endorsee of a promissory note for the sum of Rs.120, has sued the defendants, who are the makers. In the answer the defendants admit the making of the note, but they deny the endorsement to the appellant, and plead, further, payment in full to the plaintiff, and that the appellant was himself well aware of this fact. When the case came on to trial the defendant's counsel stated that he was prepared to allow judgment to be entered against them, " if "-and here I am following the very words of the requests Court record-" plaintiff would take a decisory oath. " The learned Commissioner then proceeds to record the fact that the plaintiff was prepared to take the oath in question, and he (the Commissioner) signs this entry. Immediately below his signature he makes two further entries, which are as follows :--

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