Tirugnasambanthapillia V. Namasivayampillai

Present: Bertram C.J., Ennis J., and Jayewardene A.J.

TIRUGNASAMBANTHAPILLAI v. NAMASIVAYAMPILLAI.

324-C. R. Jaffna, 16,107.

Decisory oath-Agreement regarding the action-Failure to take She oath- Oaths Ordinance, No. 9 of 1895.

Where a party to an action undertakes to take the decisory oath and agrees at the same time that the action should be decided in a particular way according as he takes or does not take the oath.

Held, that judgment may be entered in terms of the agreement.

THIS ease was referred to a Bench of three Judges by Jayewardene A. J. by the following judgment:-

Jayewardene A.J.-

This case raises a question of practical importance under the Oaths 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 following agreement was come to: -

"It is agreed between the parties that the defendant bring into Court Rs. 100 on or before August 1, 1924, and that the plaintiff take oath at the Kandaswamy temple. If he does 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 against the plaintiff for Rs. 100, with costs.

"It is also agreed between the parties that if the defendant fails to bring the Rs. 100 into Court, that the plaintiff have judgment for his claim and costs.

The oath was to be taken on 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, and the oath was to be taken that evening at 6 p.m. at the Kandaswamy temple (vide proceedings of August 1). The plaintiff, when the

terms of the oath were reduced to writing, refused to take the oath an those terms. It is unfortunate that the terms of the oath were snot recorded in writing on the day the agreement was entered into. However, I find that the plaintiff did agree to take the oath recorded by the Commissioner.

The learned Commissioner, therefore, entered judgment in terms of the agreement of July 25. The plaintiff appeals against this judgment, and it is contended for him that on the refusal of the plaintiff to take the oath, the case should have been heard and decided in due course. It seems to be clear that when a party who agrees to take an oath refuses to do so subsequently, the case must be heard in the usual way (lyanohamy v. Carolis Appu.1 Sinnetamby v. Vallinatchy,2 Fernando v. Perera,3 Simon v. Silinduhamy 4).

But the difficulty arises when there is an express agreement that if the oath is taken or not taken, the action should be decided in a particular way.

In the cases above cited there was no express agreement that the case should be determined in a particular way on the party who had agreed to take the oath taking it or refusing to -do so. However, in Kuri v. Lapaya," there was an express agreement that if the plaintiff took the oath, judgment should be entered for him, and that if he did not do so, the action should be dismissed; and on the failure of the plaintiff to take the oath, his action was dismissed. De Sampayo J., after referring to Siman v. Silinduhamy (supra), held that the case could not be dismissed according to the agreement of the parties, but that it should be heard on the merits. In a subsequent case (Nonohamy v. Rodrigo6) De Sampayo J., on the analogy of the decision of the Full Bench in Mamoor v. Peer Moharnadv,7 held that if a party expressly agrees to submit to judgment if he does not take the oath, the Court may enter judgment on his failure to carry out his undertaking. I myself followed this judgment in a case which is not reported. In Fernando v. Perera (supra) and Siman v. Silinduhamy (supra), although there was no express agreement as to the decision of the action in case, the oath was taken or

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