RAMDEO AHIR Vs. NAIPAL AHIR

JUDGEMENT

(1.) This is an appeal from an order of the lower appellate Court by which that Court set aside the decree of the trial Court and remanded the case with a direction to re-admit it to its original number in the register of original suits and to try it according to law and merits. The facts of this case are that on 28th November 1930, the parties to the suit made a statement before the trial Court to the effect that they constituted Jagrup Ahir as a Munhasir IIahe in the case and that the case should be decided according to the statement of that witness. The case came up for hearing on 6 December 1930, but before Jagrup could be examined the plaintiffs submitted an application to the effect that undue influence was being exercised by the defendants on Jagrup and therefore a special kind of oath like Gangajali or sacred book be administered to Jagrup or the plaintiffs would not be bound by his statement. The trial Court without recording any reasons simply rejected this application and proceeded to examine Jagrup Ahir whose statement was favourable to the defendant. Upon the basis of this statement alone the trial Court dismissed the plaintiffs suit on 6 December 1930.

(2.) On appeal to the lower appellate Court it was contended on behalf of the plaintiffs that they were entitled to resile from their agreement dated 28th November 1930, and it was unfair to pin them down to that particular statement, that they in fact did resile from the aforesaid agreement and consequently there has been no proper adjudication of the case and the suit should therefore be remanded for disposal on the merits according to law. The lower appellate Court acceded to this contention and relied upon the case of Turnman Singh v. Sheodarshan Singh . It set aside the decree of the trial Court and remanded the case. In the present appeal before me it is contended that the decree of the Court of first instance was correct and the order of the lower appellate Court was not warranted by law. It is argued that it was not open to the plaintiffs to withdraw from the position that they took up on 28 November 1930. It is conceded that if the status given to Jagrup by the application of 28 November 1930, was only that of a referee who was to make a simple statement as to the manner in which the case ought to be decided, that statement not being on oath, then the parties could resile from their original position and on the trend of authorities this concession is quite fair. It has been held in the case of Bishambhar V/s. Radha kishanji and Turnman Singh V/s. Sheodarshan Singh , that where the parties agree to abide by the statement of a third person it is open to the parties to resile from that agreement before the statement of the: third party had been recorded. It has also been held in the same two cases-that such an agreement did not come-within the purview of Order 23, Rule 3, Civil P.C. inasmuch as Rule 3 refers only to adjustments which have already been made.

(3.) It is however contended that the provisions applicable to the present case are the provisions contained in the Oaths Act, and where a party agrees to abide by the oath of a third person he should not be allowed to resile from that agreement on frivolous grounds. Indeed, at one stage the position taken up by the appellant before me was that under those circumstances it is not open, to a party to retract at all. It is however well settled that if a party after agreeing to abide by an oath satisfied, the Court that there is good ground for retracting, the Court would exercise a. wise discretion in refusing to administer the oath and it is only when a party puts, forward frivolous reasons for retracting that the Court would be justified in administering the oath notwithstanding the retraction, vide the cases of Ram Narain Singh V/s. Babu Singh (1896) 18 All 46, Salik Ram V/s. Wall Ahmad , Thoyi Ammal V/s. Subbaroya Mudali (1899) 22 Mad 234 and Mahbub V/s. Syedali . Accepting this position the learned Counsel for the appellant argues that a bald statement to the effect that undue influence was being exercised upon Jagrup, without indicating the nature of that undue influence, was not a good reason for retracting, specially as the plaintiffs did not unequivocally withdraw from the agreement, but declared themselves willing to abide by the statement of Jagrup, provided a special kind of oath was administered to him. He further argues that the Court of first instance treated the application of the plaintiffs dated 6th December 1930, with contempt and did not consider it necessary to assign reasons in writing for rejecting the said application because the reasons were absolutely frivolous.