SUNDARAM RAMAN Vs. BHAYAVATHIAMMA SUBBAMMA

JUDGEMENT

(1.) IN a suit for recovery of a sum of money the parties agreed by an endorsement on the plaint that, if the 4th defendant took an oath as indicted in the endorsement, the plaintiff's suit should stand dismissed. It the 4th defendant did not take such an oath, then the suit should be decreed. The 4th defendant did not take the oath. Before the trial court, it was contended by the 4th defendant that he did not agree to take the oath in a temple as stated in the endorsement, but was only prepared to take the oath in court. But the learned District Munsif found that the endorsement had been signed not only by the parties but also by their advocates. Holding that the endorsement was binding, the suit was decreed in terms of the endorsement. On appeal, the learned District Judge confirmed the lower court's decision. The defendants have preferred this second appeal.

(2.) THE ground which was canvassed by Sri T. R. Ramachandran, learned counsel for the appellants, is that the failure of a party tot take oath cannot in law justify the passing of a decree forthwith. It is urged that the only means that the special method of the determination of the controversy is no longer available and that the court should follow the procedure governing the conduct of the suits. It may however be open tot he court to take note of this circumstance that a party having agreed to take oath has failed to do so. And draw such inference as the court pleases. What is objected to is the passing of a decree forthwith on the basis of the agreement.

(3.) A decision of the Travancore-Cochin High Court reported in Sankaran narayanan v. Kochu Pillai Kochu, AIR 1957 Trav-Co, 315 has been cited. In this decision, the learned Judge points out that the law does not authorise a court to pass a decree merely because a party has resiled from his original agreement to abide by the result of an oath and the only course left tot he court is to proceed with the trial of the suit in accordance with the law in force. Reference has been made in this decision in Moyan v. Pathukutti, ILR 31 Mad 1, in that case what was pointed out was that the refusal to take an oath might be used as part of the evidence but the dismissal of the action for failure to take the oath was irregular.