GANDI APPALANAIDU Vs. GANDI APPALANAIDU

JUDGEMENT

(1.) This is a second appeal against the judgment of the Subordinate Judge, Srikakulam, dismissing the appeal from the decision of the District Munsif, Parvathipuram, in O.S. No. 655 of 1953, whereby he decreed the suit of the plaintiffs as a result of a special oath. It is necessary to state a few facts. A suit was filed by the five plaintiff-respondents against defendants 1 to 8 for an injunction restraining them from interfering in any way with the possession and enjoyment of the suit lands and all properties and things thereon by the issue of a permanent injunction. The suit was posted for appearance of the parties on 24th December, 1953 and one Shri T. Suryanarayana filed his appearance on behalf of defendants 1 to 8. It was then adjourned to 7th January, 1954, for firing written statements, but on that date no written statements were filed. Instead I.A. No. 22 of 1954 was filed under theOaths Act signed not only by defendants 3 and 7, but by Shri T. Suryanarayana and one A. S. R. Krishna Rao for Shri T. Suryanarayana. It appears that on the same day, namely, 7th January, 1954, one Sriramamurti, Advocate, filed a vakalat on behalf of the 6th defendant and Shri T. Suryanarayana endorsed thereon that he had no objection and that he had no instructions on behalf of the 6th defendant. A question appears to have been raised before the first appellate Court whether Shri T. Suryanarayana's signature on the petition signed and filed by defendants 3 and 7 and by A.S.R. Krishnamurthy was appended by him on that date. The first appellate Court held that this signature must have been appended on 7th January, 1954, having regard to the fact that Shri T. Suryanarayana had endorsed on the vakalat filed by Sriramamurti on 7th January, 1954, that he had no instructions on behalf of the 6th defendant. With this inference I agree. The petition for special oath stated that if the first plaintiff takes a special oath by the Ramayana that the suit kallam belongs to the plaintiffs and that defendants 1 to 6 have no right in it and that the paddy heaps on the kallam contained only the paddy crops raised on the plaintiffs' lands, defendants 1 to 6 would give up their contest and that a decree may be passed in favour of the plaintiffs. It was also stated therein that if the first plaintiff took an oath as to the approximate quantity of paddy contained in the heaps, defendants 1 to 6 would give the plaintiffs that quantity of paddy. After the petition was presented, it was adjourned to nth January, 1954,when the 6th defendant endorsed on the petition that he had no objection for the special oath being taken by the 1st plaintiff. One other fact to which I should advert is that on the date when the petition was filed defendant No. 3 who is the brother of defendant No. 2 and son of defendant No. 1 was present in person. On nth January, 1954, after the 6th defendant had endorsed on the petition that he had no objection for the special oath being taken by the 1st plaintiff, the 1st plaintiff took the special oath by the Ramayana and deposed that the suit kallam belongs to the plaintiffs and that defendants 1 to 6 have no right in it. The advocate for defendants 1 to 6 did not put any questions regarding the paddy in the kallam. The plaintiffs' advocate elicited with the permission of the Court the quantity of paddy in the kallam and the value thereof, but the lower Court did not decree this amount as the suit was only for a permanent injunction. Against this decree defendants 2 and 4 alone appealed and raised the contention that they had not signed the petition and consequently were not bound by the special oath. The first appellate Court dismissed this contention holding that the advocate for the defendants was authorised to sign and did in fact sign on their behalf.

(2.) The short question in this second appeal is whether the appellants are bound by the special oath in the absence of their agreeing to the special oath being taken by the first plaintiff, by personally signing the petition. Though the petition appears to have been presented under section 10 of the Oaths Act, it is a petition under sections 8 and 9 thereof. Section 10 applies only after the party or the witness agrees to make special oath or affirmation when the Court is empowered to proceed to administer it. Sections 8 and 9 are as follows :-

(3.) Are the words "any party to any judicial proceeding" appearing in these sections to be confined to the parties as such or their advocates also. It would prima facie appear that a party to the judicial proceeding would include the advocate of the party also and there are several judgments to this effect. In Amir and another v. Mohamed Baksh and others, A.I.R. 1929 Oudh 56. a Bench of the Oudh Chief Court construed the word