This revision application is directed against the order of a Civil Judge of Naushahro, dated the 5th of May 1966, by which he declined to allow the plaintiff to resile from the offer which he had made to be bound by the statement of the defendants if it was made on a special oath, and adjourned the hearing of the case to the 20th of May 1966 for administering the oath.
2. The facts, which form the background, according to counsel for the parties, axe that the present applicant, namely, Jalal Din, filed Suit No. 165 of 1965 for the specific perform--ance of an agreement by which Fazal Din had undertaken to sell a plot of land, to the present applicant. The suit was resisted, issues were framed and evidence of the parties commenced. After the statement of the plaintiff was recorded, he offered to be bound by the statement of the defendants if it was made on a special oath. On the 20th of January 1966, an application to this effect was made jointly by the plaintiff, defendant No. 1 and the Advocate who represented all the three defendants.
Defendants Nos. 2 and 3 were not present ; therefore, the hearing was adjourned to obtain their own signatures on the application. On the 29th of January 1966. Defendants Nos. 2 and 3 signed that application but before the oath was administered the plaintiff made another application to the effect that the hearing be adjourned to enable the parties to settle their differences by compromise. The defendants gave their consent to that application with the result that the hearing of the case was adjourned to the 12th of February 1966. On that day, the plaintiff asked for further time to enable the parties to conclude their talk of compromise ; therefore tile case was again adjourned to the 19th of February 1966. On that day, the plaintiff made an application stating in it that he did not desire that the case be decided according to the statement of the defendants because, according to him they had disclosed their mind to certain persons that they would make false statements on oath. That application was opposed by the defendants and was dismissed by the trial Judge who adjourned the case, as mentioned above, for administering the oath to the defendants to the 20th of May 1966. That is the order which is sought to be revised by the present application.
3. I have heard counsel for the parties who have studied the question of law involved in the case with care and have submitted notes containing references to judicial precedents. They agree that if a party to a judicial proceedings undertakes to be bound by evidence given on special oath or solemn affirmation by the opposite-party or by a witness, then the Court may enquire from the opposite-party whether he agrees to it or not. This is done under section 9 of the Oaths Act, 1873. If the other party does not agree to it then that is the end of the matter but if the other party agrees to give evidence on oath, then under section 10 of the Oaths Act, 1873: "the Court may proceed to administer it, or, if it is of such a nature that it may be more conveniently made out of Court, the Court may issue a commission to any person to administer it, and authorise him to take the evidence of the person to be sworn or affirmed, and return it to the Court."
Section 11 of the said Act provides that if evidence is given in such circumstances then it "shall, as against a person who, offered to be bound as aforesaid, be conclusive proof of the matter stated."
4. There is no dispute in these proceedings about the above propositions of law, but a question has been raised as to whether any one of the parties can resile from such an agreement. This controversy is founded on the language of section 12 of the said Act. The section runs as follows :- "If the party or witness refuses to make the oath or solemn affirmation referred to in section 8, he shall not be compelled to make it, but the Court shall record as part of the proceedings, the nature of the oath or affirmation proposed, the facts that he was asked whether he would make it, and that he refused it, together with any reason which he may assign for his refusal."
There is a difference of opinion in the judicial precedents about the enforcibility of the agreement.
The Courts have held in a number of cases that' since the party or witness who refuses to make the oath or solemn affirmation cannot in terms of the above section be compelled to make it, it follows that the agreement to be bound by the evidence given on such oath or solemn affirmation cannot be enforced against the will of a party to it. Support has been found for this view in the proposition of law that a mere agreement to be bound by a certain type of evidence does not amount to an adjustment of disputes within the meaning of rule 3 of Order XXIII, C. P. C. ; therefore, a mere agreement cannot be enforced by the Court.
5. Of course an agreement, to be bound, by evidence given on special oath or solemn affirmation, does not amount to adjustment contemplated in rule 3 of Order XXIII, C. P. C. And that, therefore, the provisions of that rule do not apply to mere agreement. See Shahnawaz v. Ghulam Muhammad and another (AIR 1946 Lah. 78), Pudusseri Vadakkethil Vikraman v. Krishnan Nair (AIR 1953 Mad.
396), Janimal Budharmal v. Girdharidas Pokhardas (AIR 1957 Nag. 47) and Jokhu v. Bhaiyalal and others (AIR 1959 All. 93). But an agreement made in Court to be bound by evidence given on special oath is a settlement to which the Court is also a party, therefore such an agreement is not one of those agreements which a party may keep or break as it liked subject only to a claim from the aggrieved party for damages. To allow a party to resile, without adequate reasons, from an undertaking of this nature would amount to allow him to play the game of hide and seek with the other party and even to abuse the process of the Court. See Allah Rakha v. Punnun (AIR 1941 Lah.
173), Mohanlal v. Roop Kishore and another (AIR 1948 All. 125) and Gudla Venkataratnamma and others v. Sindhiri Satyanarayana and others (AIR 1957 Orissa 226). An analogy can be found in the power of the Court to enforce an undertaking of a party to give up an issue or to accept a document as a piece of evidence, or to withdraw an appeal irrespective of the legal objections available to such party against such issue or document or withdrawal-See Ramlal Sahu v. Dina Nath (AIR 1942 All. 253(1)).
6. Counsel for the applicant next argued that an under--taking given by a party to be bound by evidence given on special oath i9 revocable in terms of section 10 of the Oaths Act, 1873, because the Court "may" not administer the proposed oath even after the offer is accepted by the opposite- party. Counsel said that this discretion of the Court is unlimited as well as indicative of the permissive nature of the provision. It appears to me that this is a misunderstanding. The word "may" appears in the sentence but has not been used in order to confer a discretion on the Court. It is meant to create flexibility in order to enable the Court to administer oath or affirmation itself or, according to the circumstances, to issue a commission to any person to administer it. The word "shall" could not be used in the context, because it would have eliminated the alternative given to the Court to issue a commis--sion to any person to administer an oath or affirmation. The word 'may' has, in the context, the force of the word---shall".
7. The above situation, however, does not lead to the conclusion that once an offer has been made and accepted or when evidence on oath has been given and recorded it, becomes impossible for one or both of the parties to be relieved of the consequences. The reason is that a transaction can, in certain circumstances, be vitiated by misunderstanding, mis--representation or fraud and that there can also be an agreement amongst the parties to depart from the course adopted by them and to take a different line of action for the settlement of their disputes. In this case itself the parties had agreed, after the offer and its acceptance to be bound by the evidence given on special oath or affirmation to get their disputes settled by negotiation and compromise ; therefore, the Courts have often taken the view that a Judge may, for good reasons, allow one or both parties to be relieved of the consequences of offer and acceptance-See Babu Ram v. Nathu Ram (AIR 1927 Lah.
78(1)), Salik Ram v. Wali Ahmed (AIR 1927 All. 590), Valli Ammal and another v. Arunachala Moopanar and others (AIR 1938 Mad. 385) and Saheb Ram v. Ram Nawaz and others (AIR 1952 All.
882).
8. Counsel for the petitioner tried to find support for his stand, namely, that a party could resile from his undertaking to be bound by evidence given on special oath or affirmation, from the language of sections 10 and 13 of the Oaths Act, 1873, and laid stress on section 12. He made an attempt to build up an argument on the provision that refusal to make an oath or solemn affirmation entails no legal consequence by arguing that it followed from the provision that any party could for any reason, repudiate its obligation to be bound by an oath or affirmation. Such arguments appear to have been advanced in the past also because references to them are found in legal .Precedents but the error from which they suffer is that section 12 refers to the party who makes the oath or solemn affirmation and not to the party who agrees to be bound by evidence given on such oath or solemn affirmation. The reason for this distinction seems to be that administration of oath involves the invocation of religious beliefs which is a delicate affair. Yet the Court has to record, as a part of the proceedings the nature of the proposal, the fact that the person concerned was asked to make an oath or affirmation and that he refused to do so, together with the reasons which he assigned for his refusal. The requirement of eliciting the reasons of refusal and of recording them indicates that unreasonable or wanton refusal is not contemplated. Section 13 provides that neither proceedings nor evidence is invalidated by the omission to make such oath or affirmation, but it clarifies that the obligation of a witness to state the truth is not affected. In other words, religious susceptibilities are saved but the refusal to make a special oath or affirmation does not reduce other legal responsibilities. The reason for coming to the conclusion that sections 12 and 13 aim at saving religious susceptibilities only is that there is no provision in the Oaths Act, 1873, to relieve of any obligation the party who agrees to be bound by the evidence given on special oath or affirmation. The relief which is provided for the party who has to make a special oath, or affirmation is not intended to provide any relief to a party which agrees to be bound by evidence given on special oath or affirmation.
9. In the present case the defendants were prepared to make the oath, therefore, the learned Judge was right in forming the opinion that the plaintiff could not resile from his agree--ment to be bound by itself this was the only relevant aspect of this case, then the view of the Learned Judge should have been upheld, but there is an intervening incident in this case which should be given due weight. It is, as mentioned above, that after the agreement was reached, adjournments were asked for and granted for settling disputes by negotiation and compromise, which in other words, means that attempts were made to settle the differences otherwise than by evidence given on oath or solemn affirmation. Counsel for the petitioner contended that the applications which were made for adjourn--ments should be construed as abandonment of the agreement to be bound by the evidence which was to be given on oath. Mr. M. A. I. Lakhani, counsel for the respondents, said that the agreement was irrevocable ; therefore, the parties could not by agreement revoke it. This contention, I am afraid, ignores the legal principle that even an irrevocable agreement may unless there is any legal impediment, be revoked or modified by the agreement of the parties, because the authority and the force of such an agreement is nothing more than the consensus of the parties.
10. It follows from the above that this revision application should be accepted and the order of the learned Civil Judge, Naushabro Feroze, which is under revision, be set aside. It is ordered accordingly. The parties are left to bear their own costs.
S. A. H.