JUDGMENT
Nirmal Singh, J.
1. An important question of law has been raised in this petition as to whether a party has a right in law to retract the offer made by it under the Judicial Oaths Rules, 1950 (here-in-after referred 10 as the Rules of 1950)?
2. The relevant facts for the disposal of this petition are that the petitioner filed a suit for recovery of Rs. 36,000/- against respondent in the court learned Sub Judge, Rajouri. The respondent appeared before the learned trial court and contested the suit. The case was posted for hearing on 29th of Sept’ 05. 1 he respondent on the said date moved an application for giving special oath of Holy Quran to the petitioner by pleading that he has paid an amount of Rs. 32,000/- to the petitioner and only Rs. 4000/- is outstanding against him. It was pleaded that the petitioner has instituted a false suit against the respondent and in case he takes a special oath of Holy Quran and gives a statement that he has not received any amount from respondent-defendant and that full amount of Rs. 36000 is payable to him, then the respondent is ready to keep the whole amount on the Holy Quran and the petitioner after making the aforesaid statement can take away the said amount for which the respondent would have no objection.
3. The learned trial court on 29th of Sept’ 05, when the aforesaid application was presented by the respondent, passed the order, the English translation of which is as under:
Parties present along with their counsel. At this stage, the defendant presented the application for giving oath to the plaintiff stating that in case the plaintiff takes oath he will place the amount on the Holy book of Quran and plaintiff is free to take it. Copy of application has been given to the plaintiff in the open court. The parties have no objection in. this regard. The signatures of parties have been obtained on the margin of file. To come for further proceedings on 29th of Oct’ 05. Order announced.
4. On 29th of Oct’ 05, the matter was adjourned to be taken on 21st of Nov’ 05. On the said date, following order came to be passed:
Plaintiff present in person. Advocate of defendant present. Defendant’s counsel submits that he does not want to press the application dated 29th of Sept’ 05 and intends to produce evidence. Hence the file be put up for defendant’s evidence as requested by the counsel for the defendant….
5. It is against the aforesaid order passed by the learned trial court, the present revision petition has been filed by the petitioner.
6. Mr Sharma, learned Counsel for the petitioner submitted that under the Rules of 1950, once a party gives an offer for administering oath to the other party and the other party accepts it, then the said party cannot retract from its offer. He submitted that the learned trial court has committed a legal error by permitting the respondent to withdraw the offer given by it by way of moving the application aforementioned dt. 29th of Sept’ 05, when the petitioner-plaintiff had also conveyed his no objection to the same.
7. Before considering the submission made by the learned Counsel for the petitioner, it would be apt to notice Rules 7 to 11 of the Rules of 1950. These read as under:
7. If any party to, or witness in, any judicial proceeding, offers to give evidence on oath or solemn affirmation in any form common amongst, or held binding by persons of the race or persuation to which he belongs, and not repugnant to justice or decency, and not purporting to affect any third person, the Court may, if it thinks fit, notwithstanding anything hereinbefore contained in this Circular, tender such oath or affirmation to him.
8. If any party to any judicial proceeding offers to be bound by any such oath or solemn affirmation as is mentioned in rule, 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;
9. If such party or witness agrees to make such oath or affirmation, 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 authorize him to take the evidence of the person to be sworn or affirmed, and return it to the Court.
10. The evidence so given shall, as against the person who offered to be bound as aforesaid, be convulsive proof of the matter stated.
11. If the party or witness refused to make the oath or solemn affirmation referred to in Rule 7, he shall be punished with a fine, but the Court shall record, as part of the proceeding, 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.”
12. After going through the aforesaid provisions and considering the submission made by the learned Counsel for the petitioner, I am of the considered opinion that this revision petition has merit and deserves to succeed.
13. Rule 7, aforequoted, makes it clear that if any party to or a witness in any judicial proceeding offers to give an evidence on oath or solemn affirmation in any form common amongst or held binding by the persons of the race or persuation to which he belongs and not repugnant to justice or decency and is not affecting any third party, the court may if it thinks fit, tender such oath or affirmation to the said party. Rule 8 further makes it clear that if an offer is made by one party and the other party accepts it, then, a binding agreement enforceable in law comes into existence between the parties. This proposition has been considered by this Court in the case of Mohammad Din and Ors. v. Sayed Ahmed 1969 KLJ 21. What was observed in paras 6 and 9 of the aforesaid judgment is being reproduced below:
6. The interpretation sought to be placed by the learned Counsel for the appellants cannot be accepted as that would not only cut at the root of the option given to the court but would also make Rules 9 and 10 wholly inoperative. According to Rule 9 of the Oath Rule, if a party or a witness agrees to make the special oath or affirmation, referred to in rule7 and 8 above, the Court is empowered to administer it or cause it to be administered by a Commissioner appointed for the purpose and under Rule 10 the evidence given by a party or witness on special oath or affirmation is to be taken as conclusive proof of the matter stated by the party or the witness and the statement so made has to be treated as binding on the person who offered to be bound by the said statement, and a decision has to be given in accordance therewith.
14. It is also well settled that it is not open to a party making an offer to abide by the statement made on special oath of a witness to withdraw it on frivolous ground after the said offer has been accepted by the other party. It must, therefore, be held that the plaintiffs appellants are bound by the offer to abide by the special oath of Zail Singh and the learned trial court did not commit any error of law or jurisdiction by proceedings to dispose of the case in accordance with the statement of Zail Singh. The plaintiff, it seems, did not expect that Zail Singh would make a statement injurious to their interests and being placed in an embarrassing predicament because of the statement have been trying hard to wriggle out of their aforesaid offer of the 7th June, 1957, to abide by the statement of Zail Singh. They cannot, however, be allowed to resile from their offer specially when the defendant also app-ears to have accepted the offer and the witness not be agreed to take but has actually taken the special oath proposed by them i.e. the plaintiffs themselves.”
15. In Mohan Lal v. Roop Kishore and Anr. , it has been held as under:
…What is the legal position of the parties when an offer made by one to the other is accepted by the latter upon an inquiry made by the Court under Section 9, Oaths Act? One view is that a binding agreement comes into existence and the party making the offer has no right in law to resile from it. This view is fully supported by the case in 55 A11.298. We find ourselves in general agreement with this view but with this modification that though the party making the offer may not have any right in law to resile from the agreement, yet the matter being entirely in the discretion of the Court it is open to him to appeal to that discretion and to ask the Court not to proceed to administer the oath proposed by him under Section 10 and if he can satisfy the Court that there are good grounds for refusing to exercise the discretion given by Section 10 to proceed to administer the oath, the Court may accept his prayer with the result that the agreement though binding in its nature, may not be enforced against him….
16. In the instant case, the respondent, as noticed above, moved an application before the learned trial court giving an offer to the petitioner that in case he takes an oath that he has not received any amount from the respondent then he will keep the whole disputed amount on the Holy book of Quran and the petitioner can take away the same. This offer was accepted by the petitioner on 29th of Sept’ 05. The case was posted for further proceeding i.e. for administering oath in terms of the offer given by the respondent and its acceptance by the petitioner. Therefore, a valid agreement in terms of the Rules of 1950 came into existence between the parties and the respondent cannot resile from the said agreement. Even though the court has a discretion to proceed or not to proceed to administer the oath, but this discretion has to be exercised judiciously. The court can use the discretion not to administer the oath only if sufficient cause is shown by the party concerned to resile from the offer made by it, which in the present case has not been shown by the respondent while withdrawing its offer. The learned trial court, in the present case, has not even invited the objections from the petitioner before allowing the respondent to withdraw its offer made to the petitioner vide his application dated 29th of Sept’ 05, which offer was accepted by the petitioner. Therefore, the impugned order is not in consonance with the provisions of Rules of 1950, and cannot sustain.
17. For the reasons mentioned above, this revision is accepted. Order impugned dated 21st of Nov’ 05, is set aside with a direction that the learned trial court shall call objections from the petitioner and thereafter a speaking order would be passed as to whether there is a sufficient cause shown by the respondent to resile from the offer made by him. If no sufficient cause is shown by the respondent in this regard, then the court below will administer the oath as provided under Rule 9 of the aforesaid Rules.
Parties to appear before the learned trial court on 10th of Dec’ 07.
Disposed of accordingly.
