JUDGMENT Agarwala J.
1. The following question has been referred to us by a Bench of this Court for decision :
"Whether a party who offers himself to be bound by the statement of any of the opposite parties or of a witness under Section 8, Oaths Act, Act X [10] of 1873, can resile from such an offer after the other party or the witness has agreed to make auoh an oath or affirmation but before such oath or affirmation had been actually administered ?"
2. The relevant facts are very few. The parties to this appeal are relations. They referred their dispute to arbitration. The arbitrators gave an award and the plaintiffs-respondents applied under the Arbitration Act to the Civil Judge of Jaunpur that the award may be filed in Court and a decree be passed in terms thereof. In defence the defendant-appellant raised several pleas. On 24-9-1945, the date fixed for the hearing of the case, the defendant-appellant stated, "If and whatever Balmakund plaintiff states on special oath of Gangajali, I will remain bound by it. I accept that the suit be decided according to it."
3. The counsel for the plaintiffs stated, "We agree to the decision of the case on the statement of Balmakund plaintiff on the oath of Gangajali."
4. The parties agreed that Balmakund's statement may be recorded on the next day. Balmakund did not appear on the next day and the counsel for the parties applied that the case may be adjourned to some other date. The case was accordingly fixed for 29-9-1945. On that date the defendant's counsel intimated to the Court by means of an application that the defendant did not want to abide by the statement of Balmakund on special oath. The learned Civil Judge held that the defendant could not at that stage resile from his earlier statement and rejected the defendant's application. The defendant's counsel then withdrew from the case.
5. The Court then proceeded to administer the special oath of Gangajali to Balmakund plaintiff in the absence of the defendant and recorded Balmakund's statement and decided the case in accordance with that statement in favour of the plaintiff-respondents, and a decree was passed in terms of the award. Against this decree the defendant filed an appeal which has given rise to this reference and his contention was that before the statement had been made by Balmakund, he had a perfect right to resile from his statement of 24-9-1945. The Bench which heard this case was of opinion that certain earlier rulings of this Court required reconsideration and hence made this reference.
6. The relevant provisions of the Indian Oaths Act are Sections 8 to 12.
7. Section 8 empowers a Court to administer an oath or solemn affirmation, such as is mentioned in the section, which may hereafter be called special oath, if a party or a witness concerned offers to take the oath in that particular form. It is merely an empowering section conferring on the Court a jurisdiction which perhaps it may not have possessed otherwise.
8. Section 9 contemplates a case in which a, party in a judicial proceeding makes an offer to be bound by a special oath taken by any other party to the proceeding or by a witness. If such an offer is made, the Court may then ask such other party or witness or cause him to be asked whether or not he will take the special oath. No doubt, the Court has a discretion to communicate the offer to the other party or witness or not to communicate it, and it is also true that the section by itself speaks of the communication of the offer to the other party or witness and not to any party other than the party upon whose special oath the offerer has offered to be bound, or if the offer be with regard to the special oath of a witness to any of the parties. Up to the stage to which Section 9 leads us, there is no question of any agreement having come into effect if the offer is withdrawn before it is communicated or after its communication but before its acceptance; and there is nothing further to be done by the Court. There is no effective offer with the Court and there is nothing which can thereafter be accepted. In such an event it is clear that the offerer can resile from his offer.
9. If, however, the offer is not withdrawn and it is accepted by the party or the witness concerned, Section 10 comes into operation. What does it say ? It says that in that case the Court may proceed to administer the special oath (or authorise it to be done by a commissioner). Here the question arises whether a party has a right to resile from his offer after it has been accepted, but before the oath has been administered. The point may be considered from two aspects: (a) upon the language of Section 10 itself and (b) upon general principles of law.
10. It is true that the section itself does not provide in express language the answer to the question to be determined by us. But, in my opinion, the language of Section 10 itself can lead to no other conclusion than that a party has no right to resile at his sweet will, but has to make out a case to the satisfaction of the Court why he should be allowed to resile from the accepted offer, and the discretion is with the Court to put into effect the terms of the offer or not to do so.
11. The section lays down what is to happen after a party or witness agrees to take the special oath "the Court may proceed to administer it." The word ''may" shows that the Court has a discretion in the matter. But the discretion is with the Court and not with the offerer. If the discretion lay with the offerer to have the offer put in force or not at his sweet will, there will be no discretion in the Court at all. The discretion vested in the Court has to be exercised according to the justice of the case. It cannot be exercised or refused to be exercised at the mere whim or caprice of, a party or even of the Court.
12. "Discretion", said Lord Mansfield in R. v. John Wilkes, (1770) 4 Burr. 2527 at p. 2539:
"When applied to a Court of Justice, means sound discretion guided by law. It must be governed by rule, not by humour; it must not be arbitrary, vague and fanciful, but legal and regular."
13. The Court may indeed refuse to proceed with the terras of the offer for sufficient cause, i.e., when the offerer has satisfied the Court that there is good reason why he should not be held bound by the offer. The reasons which would enable a party to have the contract set aside would amount to sufficient cause and the Court will in those cases not enforce the terms of the offer. Again it will be sufficient cause for resiling from the offer if the offerer was to be bound by the statement of a witness (not a party) and the other parties to the case do not similarly offer to be bound by that statement. It is obvious that in such a case where one party offers himself to be bound by the statement of a witness and the other parties do not, if the statement of the witness is in favour of the offerer it is not binding on anybody and the whole proceeding is a futile act which the Court will avoid to perform. When an offer is made by one party that he would be bound by the statement of a witness, the Cotirt should always ask the other party or parties whether they would also be bound by the statement of the witness. If they do not agree to be so bound, the Court should proceed no further.
14. But if the offerer fails to satisfy the Court that there are good reasons for his resiling from the offer, the Court is bound to enforce the terms of the offer. In the circumstances it cannot be maintained that there is nothing in Section 10 which debars the offerer from resiling from his offer.
15. The conclusion to which I arrive upon a bare reading of the provisions of the Oaths Act, apart from any consideration of the general principles of law, is that, (a) where a party offers to be bound by the statement of any of the opposite parties under Section 9, Oaths Act, he cannot resile from such an offer after the other party has agreed to make such oath, unless there be sufficient cause to the satisfaction of the Court for allowing the offerer to resile, and (b) where a party offers to be bound by the statement of a witness, he cannot resile from such offer if any of the opposite parties has accepted that offer or has made a similar offer, but the Court will allow him to resile from it if there has been no such acceptance or counter offer by any other party.
16. The same conclusion is reached if we consider the question upon general principles of law.
17. If the offerer is to be bound by the statement on special oath of a party and the party accepts the offer, there is a clear agreement between the two parties.
18. If there be parties to the case other than the offerer and the acceptor, it is clear that they are not affected by the offer and its acceptance. But the mere fact that there are other parties cannot deprive the agreement between the offerer and the acceptor from having its legal effect.
19. If all the parties or some of them agree that they would be bound by the statement of a particular witness, here again there is an agreement between the parties.
20. But where one party offers to be bound by the statement of a witness and no other party makes a similar offer, there is no agreement between the parties even though the witness may agree to make the statement. As will be shown later, there is no reason why the offerer should be allowed to resile from his offer after his offer has been accepted by tha other parties or there has been an agreement between the parties. Where there is no agreement between the parties there is no contract and the offerer can resile from his offer. The mere acceptance of the offer by a witness without a similar offer by the other party does not create a binding contract between the parties, and the offerer is in that case not bound by his offer.
21. It is contended that even though an offer to abide by the statement of an opposite party is made and is accepted by that party or where the offer is to abide by the statement of a witness and a similar offer is made by another party, there is no agreement between the parties, or even if there is an agreement it is not a contract which could be enforced at law.
22. It is urged in the first place that there is no agreement at all because the offer was made not to a party but to the Court and it was the Court which obtained the acceptance of the other party and for this reason parties never came into contract with each other. This argument is fallacious. The offer to be bound by the statement of another party, though made to the Court, is obviously intended to be accepted or refused by the other party. The offerer intends that the offer be conveyed to the other party and his acceptance or refusal obtained. When the Court communicates the offer to the other party and obtains his acceptance or refusal, it is merely acting as an intermediary between the parties; and when the offer is accepted by the other party, the acceptance is intended to be conveyed to the offerer and upon such conveyance there is a completed agreement between the parties. The mediation of the Court does not deprive the agreement between the two parties from being reached.
23. In Inder Prasad v. Jagmohan Das, 54 Ind. App. 301: 26 ALL. L. J. 7 (P.O.), the plaintiff agreed to abide by a statement made by the defendant in the presence of the family deity regarding some matter in controversy between the parties. The defendant agreed to make the statement and made it accordingly. The Privy Council treated this offer and acceptance as an agreement binding between the parties and throughout its judgment referred to it as such.
24. Secondly it was urged that until the special oath was taken the agreement was not complete. This objection also has no force. The taking of the oath is the performance of the agreement and does not affect its making. The fact that the agreement has no been executed or performed does not mean that the agreement was not entered into. Agreements are of two kinds, executed or executory. An executed agreement is an agreement in which one of the parties has already performed his part, while the other party has yet to carry out his promise. In an executory contract, though the parties are ad idem, both have to perform their mutual promises and the fact that they have to perform their parts of the contract does not affect the validity of the contract.
25. Thirdly it was urged that the agreement is not valid and does not amount to a contract because it lacks mutuality. It was pointed out that the party who agreed to take the special oath may yet refuse to carry out his part, that . there was no obligation on him to fulfil his promise and that the Court could not enforce it against him, vide Section 12. Because the contract lacks mutuality it was urged that it could not be binding on the offerer also. In my opinion this argument also has no force.
26. The doctrine of mutuality has two aspects. A contract in general must be mutual in its binding character. If one party of the eon-tract is not bound and can repudiate an agreement at will, the agreement cannot be binding on the other party as well. Thus an infant cannot succeed in an action for specific performance since he cannot himself be sued for the breach of contract, vide Lumley v. Bavenscroft, (1895) 1 Q. B. 683.
27. Again it is said that the Court will not enforce the obligation of the defendant by a decree of specific performance unless it can also enforce the obligation of the plaintiff. This is mutuality qua the remedy available under the contract. To both these propositions there are numerous exceptions. "So numerous and so varied are the exceptions to this rule that it is at present of little force as a rule", says Pomeroy in his "Equity Jurisprudence", Edn. 5, Vol. 4, para. 1405.
28. It is the view of the American Law Institute that :
"The fact that the remedy of specific enforcement is not available to one party is not a sufficient reason for refusing it to the other party." vide Restatement, Contracts, para. 372.
29. For instance, if A promises to sing in a theatre on payment of a certain sum of money, his claim for the recovery of the amount due to him after he has performed his part cannot be refused merely because the other party to the contract could not have compelled A to sing. The binding character of the contract at the time when it was concluded is one thing and the enforcement of the remedy available under the contract is another. A contract cannot be said to be not binding simply because the performance of the promise cannot be specifically enforced provided that there is some relief obtainable. In the illustration given the other party can sue against the singer if he refused to sing, even though he could not be compelled to sing.
30. It appears to me that the agreement in the present case is of a binding character in spite of the fact that the specific relief cannot be given to the offerer as against the person agreeing to take the special oath. Section 12 provides that if oath is refused to be taken by the party or witness concerned, this fact will be recorded in the proceedings. Unless there be sufficient reasons for the refusal, the refusal to take the oath after one has agreed to take it raises a presumption against him and in favour of the truth of the case of the other side.
31. Fourthly it was urged that there is no consideration for the agreement and that, therefore, it is not binding. This argument is also without substance. Consideration in a case of this kind is a decision of a dispute or a point at issue. This is a valid consideration sufficient to sustain a contract. If there is a valid agreement between the parties and there is no sufficient reason why one of the parties should be allowed to resile from it, the Court is bound to give effect to it.
32. The view that I have expressed above is supported by numerous authorities, vide: Ram Narain Singh v. Babu Singh. 18 ALL. 46; Chiddu v. Kuar Sen, 29 ALL. 49 ; Siya Ram Das v. Jagannath, 55 ALL. 298 : 1933 ALL. L. J. 588 ; Thoyi Ammal v. Subbaroya Mudali, 22 Mad. 234; Abuji v. Bala, 22 pom. 281 ; Badha Kishun v. Kashi Nath, A.I.R. 1926 ALL. 266; Salik Ram v. Wali Ahmad. 49 ALL. 388; Chet Ram v. Bhup Singh. A.I.R. 1927 Lah. 99 ; Allah Bakha v. Pun-nun, A. I. R. 1941 Lah. 173; Moti Ram v. Karu Fakira, A.I.R. 1937 Nag. 212 ; Baldeo Singh v. Niras Singh, A. I. R. 1946 pat. 272; Arunachala v. Valli Ammal, A.I.R. 1936 Mad. 406; Valli Ammal v. Arunachala, A. I. R. 1938 Mad. 385 and Khan Mahmud v. Syedali, A.I.R. 1931 Cal. 549.
33. As against these authorities, learned counsel has relied upon five cases, Lekhraj Singh v. Dulhma Kuar, 4 ALL. 302 ; Tumman Singh v. Sheodarshan Singh, 1930 ALL. L. J. 397; Bishambhar v. Badha Kishunji, 1931 ALL. L. J. 893 ; Ramdeo Ahir v. Naipal Ahir, 1933 ALL. L. J. 69 and Rup Singh v. Mrs. Arjun Sen, 1935 ALL. L. J. 212.
34. In Lekhraj Singh v. Dulhma Kuar, 4 ALL. 302, the plaintiffs and some of the defendants in a suit agreed that the matters in difference between them should be decided in accordance with the statement made on oath by one J after he had made a local inquiry into such matters. Stuart C. J., held that the provisions of Sections 8 to 12 were not applicable to the reference of the case to J, and that such reference was in the nature of a reference to arbitration and was not valid because all the parties interested in the suit were not parties to the reference. Oldfield J., was of opinion that the reference was not a reference to arbitration, that the defendants were competent to revoke that agreement and that assuming that the reference was made under the provisions of the Oaths Act, there was no rule of law prohibiting the revocation of such a reference. The learned Judge referred to the Oaths Act. He did not discuss the matter at all and no reasons were given by him.
35. In Tumman Singh v. Sheodarshan Singh, 1930 ALL. L. J. 397, parties agreed to abide by the statement of one A. It was held that the agreement did not come within the purview of Order 23, Rule 3, Civil P. C., and was not binding so long as the statement was not made. There was no discussion of the point and no reasons were given by the Court.
36. In Bishambhar v. Badha Kishunji, 1931 ALL. L. J. 393, parties stated that one B. Jwala Prasad pleader be appointed as referee and that the case be decided in accordance with the statement without oath. Before the statement was recorded, the plaintiff resiled from his statement. It was held that the statement of B. Jwala Prasad would not be an admission by which the plaintiff was bound. It was further held that the agreement, though not invalid under Section 23, Contract Act and was for consideration, the consideration being in the case of each party that the opposite party had also made a promise to abide by the result, but that :
"although the breach of such an agreement might entitle a party to sue for damages, we do not consider that such an agreement binds the parties to it and prevents them from resiling from such an agreement and we do not consider that such an agreement must necessarily be specifically enforced."
Bennet, J. was of the opinion that the procedure for deciding a ease in accordance with the statement of a party is not one of the modes mentioned in the Civil Procedure Code, that there are only two modes sanctioned by law--(a) under the Oaths Act and (b) upon a reference to arbitration under the Civil Procedure Code, and that there is no third mode for decision of a case.
37. With all respect, I see no reason why such an agreement between the parties should not be given effect to. The Civil Procedure Code is not exhaustive of the modes in which a proceeding may be decided. When two parties agree that the decision of a case may be reached in a particular manner, e. g., according to the statement of a particular person, common sense and natural justice point to the conclusion that the case may be decided in that particular manner. There is nothing in the Code of Civil Procedure or any other law which prevents the Court from following the procedure suggested by the parties.
38. This matter was dealt with by a Full Bench in Akbari Begam v. Rahmat Husain, 1933 ALL. L. J. 1127 and it was held that an agreement like the one under discussion is binding on the parties, that the case, can be decided according to it and that the Court has a power to follow the procedure indicated by the parties in deciding the case. It was further held that the agreement was not opposed to public policy nor repugnant to the provisions of the Contract Act or any other law and was binding on the parties.
39. In my opinion where an agreement is made between the parties to abide by the statement of a person, it is a valid agreement enforceable by the Court except when there are sufficient reasons for resiling from it in which case the Court may allow one of the parties to resile from the agreement. In the absence of any such sufficient cause the Court is bound to enforce the agreement, to take down the statement of the party concerned and to decide the case accordingly. The true basis of the power of the Court to decide a case in accordance with the agreement between the parties is neither Section 20, Evidence Act, nor Order 23 Rule 3, Civil P. C., nor the Arbitration Act but the agreement of the parties themselves. If the agreement is valid, the Court has a power under its inherent jurisdiction to give effect to it.
40. In Ramdeo Ahir v. Naipal Ahir, 1933 ALL. L. J. 69, a single Judge of this Court, and in Bup Singh v. Mrs. Arjun Sen, 1935 ALL. LJ. 212, another single Judge of this Court, followed the decision in Bishambhar v. Badha Kishunji, 1931 ALL. L. J. 393.
41. In my opinion these cases were not rightly decided.
42. My answer to the question referred to us, therefore, is: (1) Where a party offers to be bound by the statement of any of the opposite parties under Section 9, Indian Oaths Act, he cannot resile from such an offer after the other party has agreed to make such oath, unless there be sufficient cause to the satisfaction of the Court for allowing the offerer to resile, and (2) Where a party offers to be bound by the statement of a witness, he cannot resile from such offer if any of the opposite parties has accepted that offer or has made a similar counter offer, unless there be sufficient cause to the satisfaction of the Court for allowing the offerer to resile, but he can resile from it if there has been no such acceptance or counter offer by any other party to the judicial proceeding.
V. Bhargava, J.
43. I have had the benefit of reading the judgment of my brother Agarwala J. The facts have been given by him in his judgment and it is, therefore, unnecessary to repeat them. The question, which has been referred for decision to the Full Bench is :
The Indian Oaths Act, 1873, as its provisions show, is designed to confer on Courts and certain other authorities the power to administer oath and prescribes the procedure thereof. Sections 4 to 7 of the Act lay down the form and the manner of administration of an ordinary oath. Sections 8 to 12 provide for administration of special oaths. An examination of these provisions of the Indian Oaths Act shows that, apart from making provision for the administration of an oath, this Act does not purport to lay down the procedure to be adopted in the decision of the case in which the oath under the Act is administered nor to regulate the rights of the parties which might arise due to their own actions in connection with the proceedings in Court including the administration of the oath. While the power under the Act is specifically granted to the Court to administer an ordinary oath to witnesses, interpreters or jurors, there is no provision made by this Act itself for action to be taken by the Court in case any of them refuses to take the oath. For such a purpose, resort has to be taken to other laws, such as the Indian Penal Code. Similarly, this Act, in no way, affects the procedure to be adopted by the Court in a civil proceeding which is governed by the Code of Civil Procedure or other similar laws. It is clear that the provisions of this Act have not been designed to affect the rights of the parties that may have been prescribed by other statutes or the procedure which they are required to follow.
In the case of a special oath, the power of the Court is of a more limited character. Under Section 8 Oaths Act, a party or a witness can be given special oath if he offers to give evidence on such oath. The Court cannot, of its own accord, compel a party or a witness to take such special oath.
Under Section 9 of the Act, any party to a judicial proceeding can offer to be bound by any such oath if such oath is made by the other party to or by any witness in the proceeding. Thereupon the Court may ask such party or witness whether or not he will make the oath. If the party or witness agrees to make the oath, the Court is empowered to administer that special oath and to take the statement on it. Section 11, Oaths Act merely makes applicable the general principle of estoppel and lays down that a party, who offers to be bound by the evidence given by the opposite party or a witness on special oath, shall not have the right to challenge the evidence so given and the evidence so given shall be conclusive proof of the matter stated.
Section 12 enjoins the Court, in case of refusal by the opposite party or witness to make the special oath, to record the nature of the oath, 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. It is significant that though Section 12 lays down what the Court is to do in the case of refusal by a party or a witness to make special oath, it does not anywhere lay down the consequences of such refusal. In order to draw any presumption from the refusal, the provisions of the Indian Evidence Act would have to be looked into. It will thus be seen that even in the case of special oath to be administered under this Act, the provisions of other general laws have been kept in view and it has been intended that they should be made applicable. Consequently, in considering the question as to whether a party, who has offered to be bound by the statement of any of the opposite parties or a witness, can resile from such offer, we cannot be confined to the provisions of the Indian Oaths Act only and the right of the party to resile from the offer must, therefore, be determined with reference to other laws, such as the Code of Civil Procedure and the Indian Contract Act.
44. I may first consider the case of an offer by one party to be bound by the special oath of the opposite party. In such a case, it is clear that the offer made under Section 9, Oaths Act is a proposal as defined in the Indian Contract Act and the party, who makes the offer, is the promisor. The offer is accepted by the opposite party who clearly becomes the promisee. In such a case, there clearly comes into existence an agreement in which the promise by the person to be bound by the Special oath of the opposite party is the consideration for the act of taking special oath by the opposite party. A contract of this nature, of course, remains a contingent contract because the law vests in the Court the discretion either to enforce or not to enforce it. As has been pointed out by my brother Agarwala J. the discretion of the Court is not to be exercised arbitrarily but must be sound discretion guided by law. It must be governed by rule; not by humour; and it must not be vague and fanciful, but legal and regular. Even such a contingent contract cannot be revoked by either party to it, once, the offer has been made by one party and accepted by the other.
The contract may become void if the Court decides not to exercise its power to administer the oath for sufficient reasons in exercise of its discretion but unless the Court does so, the contract remains binding and no party can be allowed to resile from it.
It is also clear that if the party, offering to be bound by the special oath, were to be allowed to resile from the offer even after it had been accepted by the opposite party, the former would be placed in a position where he could take unfair advantage of the provisions of the Indian Oaths Act. Every party, in a judicial proceeding, may, knowing that he has the right to resile from the oath after its acceptance by the opposite party, make the offer without hesitation though never really intending to abide by the offer. If the opposite party refuses to make the oath, he can take advantage of the note made by the Court under Section 12, Oaths Act and request the Court to take presumptions against the opposite party. On the other hand, if the opposite party agrees to make the oath and accepts the offer, he can then safely resile from the offer without any presumption being taken against him. It is obvious that such could not have been the intention of the law. The provisions of the Act cannot be so interpreted as to give such an unfair advantage to one party over the other. In the case of an offer to be bound by the oath of the opposite party, it must, therefore, be held that the party making the offer has no right to resile from it after the offer has been accepted though, in exercise of its discretion, the Court may refuse to administer the special oath.
45. In the case of an offer to be bound by the oath of a witness, two different situations can arise. There may, firstly, be a case where after one party has offered to be bound by the special oath of a witness, the other party may give a similar undertaking in which case there is a mutuality of the offers by both parties and an agreement in the form of a contingent contract would clearly come into existence. In such a case, gain neither of the two parties can subsequently be permitted to resile from his offer to be bound by the oath of the witness though the contract may never be fulfilled either because the witness may refuse to take the oath, or, because the Court may, in its discretion, refuse to administer it. In any case, neither of the two contracting parties can be permitted to resile from the contract.
Secondly, there may be a case where the offer made by the party to be bound by special oath may never be conveyed to the opposite party by the Court, or there may not be a counter offer by the opposite party to bind himself also with that statement on special oath. In such a case, it appears to me that no contract would come into existence. The witness, who is to make the oath, cannot be treated -as a party to any contract and his acceptance to take the oath without reference to the opposite party to the judicial proceeding in which the offer has been made cannot bring into existence any contract of a binding nature. In such a case, there would only be a promise on behalf of the party making the offer but no agree ment would come into existence and consequently, there would be no bar to the revocation of the offer by the party making it. Such revocation would be permissible under Section 5, Contract Act.
The Court cannot, in any circumstances, be considered to be a party to the contract arising out of an offer made by a party under Section 9, Oaths Act to be bound by the oath of the other party or a witness. There can be no agreement between the Court and a party to a judicial proceeding pending before it and further, there can be no question of the passing of any consideration between the Court and such a party. A contract can come into existence in the course of a judicial proceeding only if the parties to the agreement are also parties to the judicial proceeding and there is mutuality of promises between them.
46. The case law on this subject has been fully discussed by my brother Agarwala, J. in his judgment and I do not think that any useful purpose will be served by my reviewing it afresh. I would, therefore, answer the question referred to the Full Bench as follows :
(1) Where a party offers to be bound by the statement of any of the opposite parties under Section 9, Oaths Act, he cannot resile from such an offer after the other party has agreed to make such oath, unless there be sufficient cause to the satisfaction of the Court for allowing the offerer to resile, and (2) Where a party offers to be bound by the statement of a witness, he cannot resile from such offer if any of the opposite parties has accepted that offer or has made a similar counter offer, unless there be sufficient cause to the satisfaction of the Court for allowing the offerer to resile, but he can resile from it if there has been no such acceptance or counter offer by any other party to the judicial proceeding.
Malik C. J.
47. The question referred to the Full Bench for decision has already been quoted in the judgment of brother Agarwala who has discussed the rulings that were cited at the Bar. It is not necessary, therefore, for me to refer to those cases again.
48. In dealing with this matter we must first remember that the Indian Oaths Act mainly concerns itself with the form of judicial oaths, how they are to be administered and the effect thereof. The question of the procedure to be . followed by Courts in decision of cases cannot legitimately be expected to form part of this Act.
49. After having dealt with the question as to the persons by whom oaths or affirmations can be made and the authority to administer them we come to the part of the Act dealing with the forms of oaths and affirmations. Sections 9 to 12 in that part deal with special oaths by which a party agrees to be bound Section 9 is as follows :
''If any party to any judicial proceeding offers to be bound by any such oath or solemn affirmation as is mentioned in Section 8, if such oath or affirmation is made by the other party to, or by any witness in, such proceeding, the Court may, if it thinks fit, ask such party or witness, or cause him to be asked, whether or not he will make the oath or affirmation. Provided that no party or witness shall be compelled to attend personally in Court solely for the purpose of answering such question."
50. It will be noticed here that the offer is made by one party to be bound by special oath to be taken by the other party or by any witness. If there are only two parties to a case and one party accepts to be bound by the special oath of the other, that other by agreeing to take special oath has also impliedly agreed to be bound by his own statement. If, on the other hand, there are other parties, before they can be bound by such a statement their consent will have to be taken. In the case of an offer to abide by the statement of a witness, unless parties agree to be bound by the statement made by him, the mere fact that one party has agreed would not in most cases enable the Court to dispose of the case finally. The section, however, does not deal with this aspect and only the party or witness required to take the oath has to be asked under this section.
51. Section 10 is as follows :
"If such party or witness agrees to make such oath or affirmation, the Court may proceed to administer it, or, if it is of suoh 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."
This section only deals with the question how such special oath is to be administered.
52. Section 11 deals with the effect of such oath and provides that :
"The evidence so given shall, as against the person who offered to be bound as aforesaid, be conclusive proof of the matter stated."
53. Section 12 provides that :
"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."
The section makes it clear that the Court may draw such inferences as may be reasonable from the conduct of the party or witness in refusing to make the oath or solemn affirmation and the reasons which he may give for such refusal.
54. There is no section in the Indian Oaths Act dealing with the question whether a party making an offer to abide by a statement on oath, or special oath, by another party or witness can resile from such an offer and, if so, at what stage and under what conditions. This matter must, therefore, be decided on general principles of law.
When an offer is made to a party or a witness direct the ordinary rules governing a contract might be applicable, but, in case of an offer made in Court, it appears to be difficult to apply the ordinary rules of contract. Proceedings in Courts are solemn proceedings where every statement made must be deemed to have been made with due regard to the rights and obligations of the party making it. Whether, therefore, a party or a witness has agreed to make the oath or has not yet given his consent should not be the sole determining factor in deciding the question whether the offer made should be allowed to be resiled from. I am, therefore, reluctant to say that a party has an absolute right to resile from an offer before it is accepted. The Court should have complete control over the proceedings before it and it. should not be possible for a party to trifle with it. At the same time an application to abide by the oath of a party or a witness must be treated like any other application in Court, e.g., an application to add a party or to withdraw a part of the claim.
In all such cases Courts have readily agreed to give a right of locus paenitentiae if the prayer to withdraw the application is made at the earliest stage before it has been acted upon. After the other party or a witness has accepted the offer, the Court would no doubt require very strong reasons to permit a party to resile from the offer, but before such acceptance, unless there are special reasons, the Court would certainly allow the party making the offer to resile from it. After the oath has been taken there can of course be no question of resiling from it, as Section 11 provides that the evidence so given shall be conclusive proof of the matter stated against the person who offered to be bound by it.
55. My answer to the question, therefore, is that a party who offers himself to be bound by the statement of any of the opposite parties or of a witness has no right to resile from such an offer after the other party or the witness has agreed to make such an oath or affirmation.
The Court
56. The answer to the question referred to the Full Bench is as below :
(1) Where a party offers to be bound by the statement of any of the opposite parties under Section 9, Oaths Act, he cannot resile from such an offer after the other party has agreed to make such oath, unless there be sufficient cause to the satisfaction of the Court for allowing the offerer to resile, and (2) where a party offers to be bound by the statement of a witness, he cannot resile from such offer if any of the opposite parties has accepted that offer or has made a similar counter offer, unless there be sufficient cause to the satisfaction of the Court for allowing the offerer to resile, but he can resile from it if there has been no suchfe acceptance or counter offer by any other party of the judicial proceeding.