RUP SINGH NAYAL Vs. MRSARJUN SEN

JUDGEMENT

(1.) This is a civil revision by a defendant against a decree of the lower appellate Court. The facts found are that on 6 July 1932, there was an application by a mukhtar of the defendant stating that if the plaintiff took an oath by Buddha that she had advanced Rs. 100 to the defendant then the suit should be decreed in favour of the plaintiff, and if the plaintiff did not take this oath then the defendant would take an oath by God that the defendant did not take any money from the plaintiff, and the suit should be dismissed. Neither parties were present on this date. The plaintiff's counsel stated that his client agreed and 12 July 1932, was fixed for the oath or oaths to be taken. On 9 July the defendant appeared in person and made a written application to the Court stating that he did not desire the proceeding by oath as the plaintiff was a Buddhist and the defendant would be out cased if he agreed to the proceeding. The Court did not agree to that application. On 21 July, there was a report by a peon to the Court that the defendant did not go to the temple but the plaintiff went to the temple. The report did not state that the plaintiff took the oath. The plaintiff made a statement that she did take the oath. The lower Court did not accept this allegation and directed that the suit should proceed in the ordinary way and the suit was tried by the Court and dismissed. The plaintiff brought an appeal. The lower appellate Court has held that the case should be decided by the oath of the plaintiff and that no good ground had been shown by the defendant for resiling and that the defendant is bound by his offer.

(2.) The lower appellate Court therefore has remanded the case for disposal by the procedure which was the subject to the agreement of 6 July 1932. The defendant has filed this revision and alleges that the defendant was entitled to resile and that the Court has acted without jurisdiction in ordering that the case should be disposed of on oath. One of the chief questions is whether the defendant is entitled to resile. For the respondent-plaintiff reliance was placed on two rulings : Mithu Lal V/s. Sri Lal 1924 All. 126 and Indar Ram V/s. Wali Ahmad 1927 All. 1927 P.C. 165. In neither of these cases was there any question of resiling. In Salik Ram V/s. Wali Ahmad 1927 All. 590, a learned Single Judge of this. Court held that a party could resile for satisfactory reasons. On the other hand in Tumman Singh V/s. Sheodarshan Singh 1930 All. 162, a Bench of this Court held that a party could resile although the Court had found that the reason for resiling given by him was untrue. The resiling of course must be before the statement on oath has been taken. In Bishambhar V/s. Radha Kishanji 1931 All. 557 reference was made to this ruling on p. 395 of 1931 A.L.J. and it was followed, Similarly in Chand Rekha v. Janki Prasad 1932 All. 404, it was held : by a Bench of this Court that a party could resile at any time before a proper statement had been made by the reference. These rulings show that no conditions are attached to the desire to resile and it is not necessary that the Court should be satisfied that the party had good reasons for resiling. Under these circumstances I consider that the Courts, below were incorrect in holding that the defendant did not have a right to resile when he applied to do so on 9 July 1932. That being the case the resiling has terminated the agreement to refer to oath and the order of the lower Court that the trial Court should determine the case in this manner is an order which purports to give jurisdiction to a Court which the Court cannot have.

(3.) For these reasons I allow this application in revision and I remand the appeal to the lower Court for disposal according to law. The costs hitherto incurred in this Court and in the lower Courts will abide the result. The court-fee may be refunded under Section 13, Court-fees Act.