KUNJAYYAPPAN KATTUPARAMBIL MAMU Vs. MARIAM

JUDGEMENT

(1.) For more reasons than one the decision of the lower appellate court has to be vacated and the decision of the Trial Court restored.

(2.) The parties to the suit agreed to settle the suit by oath as contemplated by O.23 R.3A of our Code of Civil Procedure. The plaintiff respondent examined eight witnesses on her side, after which she closed her case. Thereafter, the first defendant (the first appellant) entered the box; and he was cross examined at length by the counsel of the respondent. Just before the cross examination was closed on 4-1-1963, the counsel threw out a challenge to the witness whether he was willing to take oath before the Bhagawathi Temple, Cranganore and was willing to have the suit decided on oath. The first appellant agreed; and the suit was consequently adjourned to 8th January for filing the oath agreement. On that day the oath statement containing the agreement of the parties as well as the actual oath to be taken was filed. The court then directed the oath to be taken on 11th January before a commissioner appointed by court; and also directed the return of the commission by 15th January. Two days thereafter, on 10th January, the respondent filed I. A. No. 72 of 1963 praying that permission might be given to her to resile from the oath agreement. The Trial Court refused permission; but the respondent failed to deposit the expenses of the commission and the expenses payable to the temple as agreed to under the oath statement. Consequently, the suit came to be dismissed with costs. The respondent took up the matter in appeal; and the lower appellate court has reversed the decision of the Trial Court and remanded the suit for further consideration and disposal on merits.

(3.) The lower appellate court has observed several times in its judgment that the oath agreement was the result of the heat of the moment. There is no warrant for this conclusion as will presently appear. The respondent examined as many as eight witnesses and closed her case. It was thereafter that the first appellant entered the box; and at the very close of his cross examination the challenge to take oath emanated from the respondent's counsel. Even conceding for the sake of argument that the challenge was the result of the heat of the moment, I mean the heat of the cross examination, still, there was enough time for cooling down and for all the heat to disappear, because the oath agreement as contemplated by O.23 R.3A was filed only on 8th January, four days after. It is patent therefore that there could not have been any heat which was responsible for the oath agreement; it must have been a cool and deliberate act.