HARAKCHAND ROOPCHAND Vs. SUKRAJ DEVAJES

JUDGEMENT

(1.) THE plaintiff in O. S. No. 1218 of 1961 on the file of the City Civil Court. Madras, is the appellant in this appeal. The plaintiff laid the suit for recovery of Rs. 7,620/made up of a sum of Rs. 6,000/- said to have been given as a hand-loan to the defendant and interest thereon at twelve percent per annum. The defendant denied the loan. When the suit came up for trial the plaintiff challenged the defendant to take a special oath in a Jain temple by touching the God denying the loan. The defendant accepted the challenge. Both parties made an endorsement on the plaint to that effect. Subsequently the plaintiff took out I. A. No. 3418 of 1968 praying for permission to resile from the challenge. In the affidavit that was filed in support of the application, it was alleged that the Jain guru and certain other members of the community had found fault with the plaintiff for having made the challenge, that there will be displeasure of God if the oath was administered and that therefore, he should be permitted to resile from the challenge. The defendant opposed that application contending that a concluded contract had come into being and that the plaintiff was not entitled to resile from the contract. The trial Court dismissed that application by order dated 30th March, 1963. In view of that order the trial Court decreed that the suit shall stand dismissed with costs. It is against that dismissal that this appeal has been filed.

(2.) DURING the pendency of the appeal, the defendant died and his legal representatives have been brought on record.

(3.) MR. Balasubramaniam, appearing for the plaintiff-appellant contended that even though the offer made by the plaintiff and the acceptance made by the defendant with regard to taking of oath may constitute a contract, it is necessary on the part of the defendant to take the oath that without the defendant taking the oath it cannot be said that he completed his part of the contract and that therefore the plaintiff-appellant should have an opportunity to prove his claim. We are unable to accept this argument. The lower Court has rightly held that the plaintiff was not entitled to resile from the challenge. The lower Court relied upon the decision of a bench of this Court in Ayyakannu Nadar v. Muthiah Nadar, (1967) 17 Mad LJ 99. That was an identical case. There also, the plaintiff after having challenged the defendant to take oath and the defendant having accepted the challenge, resiled from it with the result that the defendant did not take the oath and the suit was dismissed, as in the instant case. The correctness of that dismissal was considered in that decision. The Bench observed: