' This appeal is directed against the order dated 19-10-1968, passed by the learned Addl. District Judge, Sheikhupura, accepting the appeal of respondent No, 2 and remanding the case to the learned trial Court for fresh decision.
2. The admitted facts of the case are that the appellant, Riaz Ahmad, filed a suit for dissolution of partnership, rendition of accounts and recovery of the amount due against the respondents, respondent No, 2 Muhammad Ibrahim being his father. According to the appellant, the parties to the suit entered into partnership on the basis of a written document, dated 22-9-1959, under the name and style "Muhammad Ibrahim-Muhammad Ismail Company". The concern as such was to deal in the business of rice as commission agents, According to the partnership agreement each partner was to invest Rs, 5,000 at the initial stage and the profit and loss was to be shared equally.
According to the terms and conditions of the partnership, the business accounts were to be maintained by Muhammad Ismail and Muhammad Ibrahim, respondents. Since, according to the appellants, the accounts were not maintained properly, therefore, he filed the above-mentioned suit against the respondents.
' Muhammad Ibrahim, father of the appellant, who was one of the defendants before the trial Court, supported his claim, which was, however, resisted by Muhammad Ismail and Ghulam Sabir, respondents. They, inter alit:4 pleaded that accounts were maintained by Muhammad Ibrahim and as such they not being the accounting party, suit against them was not maintainable.
3. During the proceedings of the case Riaz Ahmad, plaintiff-appellant made an application before the trial Court to the effect that if Muhammad Ismail respondent was prepared to state while taking oath on Holy Qur'an that accounts books were not in his possession and otherwise he was always prepared to show the accounts, then his suit might be dismissed; and if Muhammad Ismail respondent was not prepared to take such oath then he was prepared to take such oath and in that case his suit might be decreed. Muhammad Ismail, at this application made counter statement on the same date to the effect that if Riaz Ahmad, the plaintiff-appellant, was prepared to state while taking oath on Holy Qur'an that accounts books were in his (Muhammad Ismail's) possession and so much amount was due from him to the appellant then the suit might be decreed for that amount against him otherwise the same might be dismissed. Similar statement was made by the other respondent, Ghulam Sabir. The record shows that Riaz Ahmad, appellant, got adjournment of the case on the said date of hearing on the ground that since he had not calculated the amount due to him from Muhammad Ismail, respondent, therefore, an opportunity should be granted to him in this behalf. The case was adjourned to 20-2-1968, on which date Riaz Ahmad made statement while taking oath on Holy Qur'an that amount of Rs, 16,930 was due to him from Muhammad Ismail. It is interesting to notice that before oath could be administered to Riaz Ahmad, Mukammad Ismail made an application before the trial Court that since Riaz Ahmad was in the habit of taking false oaths and telling lies, therefore, oath may not be administered to him and the case might be decided on merits. This application was, however, rejected by the learned trial Court on the same date on the ground that since the parties had entered into an agreement in this behalf, therefore, Muhammad Ismail, respondent, was not competent to resile therefrom. The learned trial Court passed decree for the amount in question on the basis of the oath taken by Riaz Ahmad against Muhammad Ismail.
4. Muhammad Ismail having felt aggrieved against the judgment and decree passed by the learned trial Court preferred appeal against the same before the learned District Judge, which was disposed of by Qazi Muhammad Dastgir, then Addl. District Judge, Sheikhupura by bis impugned order. He held that Muhammad Ismail was competent to resile from the agreement in the given circumstances and as such his application should have been accepted on the payment of coats.
The learned lower appellate Court, as such, burdened Muhammad Ismail, respondent, with the payment of cost of the proceedings in its Court as well as in the learned trial Court including court- fee of Rs, 1,166.62 affixed by Riaz Ahmad appellant on his plaint. Muhammad Ismail was further burdened with compensatory cost of Rs, 200.
5. Riaz Ahmad, plaintiff-appellant, has challenged the validity of the impugned order on the grounds-
(a) that respective statements of the parties amount to agreement between them and as such Muhammad Ismail respondent was not competent to resile therefrom; he was bound to abide by that; and
(b) that Muhammad Ismail respondent is liable to make up deficiency in the payment of court-fee on the memo. Of appeal preferred before the learned District Judge, as the suit was not disposed of on a preliminary point and the decree was not reversed, as such, under rule 23 of Order XLI, C. P.
C. The suit was decreed on merits and the appeal was also disposed of on merits.
6. Offer and counter-offer in this case were made by the appellant as well as Muhammad Ismail, respondent, under section 8 of the Oaths Act. The counter-offer made by Muhammad Ismail, respondent, was accepted by the appellant. The manner and form of the oath proposed by Muhammad Ismail required the appellant to state while taking oath on Holy Qur'an that accounts books were in possession of Muhammad Ismail and so much amount was due from him to the appellant. According to law, if oath is taken in terms of the form suggested by the person to be bound by the oath, then oath taken as such is conclusive evidence against him and order or decree, as the case may be, can be passed against him on the basis thereof under section 11 of the Oaths Act.
7. The first question which requires determination in this case is: as to whether the oath taken by Riaz Ahmad was precisely in the manner and form suggested by Muhammad Ismail respondent.
As discussed above, Riaz Ahmad while taking oath on Holy Qur'an only stated that amount of Rs, 16,930 was due to him from Muhammad Ismail. He never stated on oath that the accounts books were in possession of Muhammad Ismail. The relevant provisions of the Oaths Act as contained in sections 8 to 11 also show that specific form of Oath can be suggested and unless oath is taken in that form the party who has offered to be bound thereby will not be bound by that. A party to the proceedings can, under section 8 of the Oaths Act, offer to make statement in any form purporting to affect a third person. The other party who offers to be bound by that form of B oath will make statement accordingly and at this the party who suggests to make statement on oath in a particular form will be asked to make statement according to the same. Under section 10 of the Act, after the parties agree to be bound by special form of oath the Court will administer the sam to them and the statements so made according to the special form of oath, will be conclusive proof against the person who offered to be bound by that. This view is supported by Chhedl Lal v. Jawala Prasad (1) where the plaintiff offered that he would accept the defendant's statement if he would give on Ganges water and on his honour. The oath was taken in the form suggested by the plaintiff and it was held that since the form of the oath was followed precisely, therefore, the plaintiff was bound by that. The same view has been taken in Manji and others v. Paramaya Hebbara alias Yediyala (2).
(1) 2 I C 201 (2) 9 I C 260 Is that ease the plaintiff agreed generally to abide by the oath of the defendant and the defendant agreed to take oath in any from at any place; still the form and place were never actually agreed upon. It was held that according to section 10 of the Oaths Act, agreement as to the oath must be such that the Court is in a position to administer it forthwith and if the form and place have not been settled the Court cannot administer it.
' Similar view has been taken in another case from the Indian jurisdiction, reported as Pudusseri Vadakkethil Vikraman alias Kunnikuttan Nair v. V. Krishanan Nair (1). It has been found that unless the oath is taken as agreed to by the parties there cannot be said to be any evidence on the basis of which the Court can proceed to dispose of the case one way or the other. In that case the defendant agreed to take oath only at a temple on a certain day, but he could not do so as the temple was closed. It was held that fresh opportunity should be made available to the defendant to take the oath.
8. The above discussion would show that a party who wants to bind down any other party by special oath must make statement on oath in a specific form agreed to between the parties. In the present case, special oath was to be taken to the effect that accounts books were in possession of Muhammad Ismail, respondent, and so much amount was due from him to the appellant while the appellant never made any statement on oath that accounts books were in possession of Muhammad Ismail. It means that the form suggested by Muhammad Ismail and agreed to between the parties was never followed by the appellant while making the statement. In the circumstances there was no conclusive material before the Court, as contemplated by the provisions contained in sections 8 to 1 I of the Oaths Act, to pass decree against Muhammad Ismail, respondent. The judgment and decree passed by the learned trial Court against Muhammad Ismail, therefore, cannot be sustained in law.
9. The learned Addl. District Judge, Sheikhupura while holding that the counter offer made by Muhammad Ismail respondent could be withdrawn by him after having been burdened with costs has remanded the case for decision on merits. Since I have not found the judgment and decree passed by the learned trial Court sustainable in law for the reasons discussed above, though different from that of the learned lower Appellate Court, therefore, the remand order need not be interfered with directing the trial Court to decide the suit afresh on merits. Since the judgment and decree passed by the learned trial Court have been set aside for the reasons given above, therefore, I need not dilate upon the point: whether Muhammad Ismail respondent was competent to resile from the contract entered into between the parties,
10. The learned lower appellate Court has observed that since the case was remanded to the trial Court, therefore, Muhammad Ismail respondent was not required to pay court-fee on the memo. Of appeal filed before the learned District Judge, as in that case the court-fee paid by him would have to be refunded in accordance with section 13 of the Court Fees Act. The objection taken with regard to this observation by the learned counsel for the appellant appears to be correct. The suit was not decreed on preliminary points by the learned trial Court and the said decree has not D been reversed in appeal, rather on the contrary, decree was awarded in
(1) AIR 1953 Mad. 396 favour of the appellant on merits and the same has been reversed under rule 23-A of Order XLI, C.
P. C. And not under rule 23 of the said order. Under section 13 of the Court Fees Act if appeal or plaint which has been rejected by the the lower appellate Court on any of the grounds mentioned in the Code of Civil Procedure, is ordered to be received, or if a suit is remanded in appeal on any of the grounds mentioned in Order XLI, rule 23, C. P. C. For a second decision of the lower Court, the Appellate Court shall grant to the appellant a certificate authorising him to receive back from the Collector the full amount of fee paid on the memo. Of appeal. As mentioned above, the present suit having not been decreed on preliminary points, section 13 of the Court Fees Act will not be applicable. In this view of the matter Muhammad Ismail, respondent, who was appellant before the lower Appellate Court, would be liable to pay court fee in the amount of Rs, 1,166.62 on the memo. Of his appeal within a period of one month, failing which his appeal before the learned Addl. District Judge would not be deemed to have been pending and disposed of as such.
11. For the aforesaid reasons there is no force in the appeal which is hereby dismissed, without any order as to costs, in the terms stated above.