SALIK RAM Vs. WALI AHMAD

JUDGEMENT

(1.) This is an application in revision against an order of a Judge of the Small Cause Court. It appears that the plaintiff-applicant brought a suit on a bond against the defendant opposite party. On the 16 of April 1926, both parties joined in making a petition to the Judge in which they were willing to be bound by the oath of one Naziruddin. It was stated in the petition that Naziruddin was present in Court but for some reason or other which does not appear, Naziruddin was not examined on that day. The Court ordered the 30 of April to be fixed for taking the evidence of Naziruddin. The witness was not served for that date and was summoned again for the 14 May. On that date Naziruddin was examined. He deposed against the plaintiff and the suit was dismissed.

(2.) In this application for revision it is stated that prior to the date on which Naziruddin was examined the plaintiff had expressed his desire to resile from the petition of the 16 April 1926. I find that on the 20 April the plaintiff put in an application saying that he was no longer willing to be bound by the oath of Naziruddin as he had come to know that Naziruddin was a close friend of the defendant. On this the Judge recorded an order saying that the plaintiff was not entitled to resile from the agreement to refer. Another application was presented by the plaintiff on the 8 of May in which he reiterated the same prayer. This too was refused by the Court for the same reason.

(3.) I do not think it was correct for the Court below to hold that the plaintiff could not resile from the agreement to refer. The law on the subject has been explained in a judgment of the Madras High Court to be found in Thoyi Ammal V/s. Subbaroya Mudali [1899] 22 Mad. 234. At pages 236 and 237 of the report their Lordships observe: There is nothing in Secs.9 to 11 of the Act (Indian Oaths Act) which allows a party to retract after the opponent has accepted the proposal. The Act gives the Court a discretion to administer the oath or not, and if a party, after agreeing to an oath, satisfies the Court that there is good ground for retracting, the Court would probably exercise a wise discretion in refusing to administer the oath, but when a party puts forward frivolous reasons for retracting we think the Court is justified in administering the oath notwithstanding the retraction. This has been expressly decided in Ram Narain Singh V/s. Babu Singh [1895] 18 All. 46 and Abaji V/s. Bala [1898] 22 Bom. 281, and there is nothing in the case of Vasudeva Shambog V/s. Naraina Pai [1878] 2 Mad. 356 to support the contrary view.