K.M. Singh vs Secretary, Association Of Indian ...
1991 Latest Caselaw 345 Del

JUDGMENT

P.N. Nag, J.

(1) In this revision petition, the petitioner seeks for setting aside the order dated 30th January, 1989 passed by Shri S. C. Mittal, Additional District Judge, Delhi dismissing the application filed on behalf of the plaintiff-petitioner wherein he has prayed for cancelling the order dated 14th October, 1988 vide which a part of the claim of the suit of the plaintiff covered by issue No. 1 was ordered to be dismissed as withdrawn.

(2) The relevant facts giving rise to this revision petition are that the petitioner, who was the President of defendant No. 1, was managing its affairs and according to him his resignation dated 5-4-1976 was illegal and unenforceable and that he was entitled to continue in the service of defendant No. 1 and all consequential benefits, including recovery of Rs. 19,500. Out of the pleadings of the parties, as many as 10 issues were framed. However issue No. 1, which is relevant to determine the point ill controversy between the parties in the present case, is reproduced below : "1. Whether the resignation tendered by the plaintiff involuntary and a result of fraud, coercion and threat as well as the inducement as alleged in the plaint ? OPP".

(3) During the course of proceedings, the petitioner filed an application under Section 151 of the Code of Civil Procedure, 1908 praying therein that if Shri Amrik Singh and Shri R. P. Mahendroo, officers of the defendant No. 1, took special oath in Gurudwara and Mandir respectively to the effect that the resignation of the plaintiff was not extracted from him on 5-4-1976 under duress, fear, inducement, .fraud, coercion then that part of the claim might be dismissed as withdrawn. In fact on 14-10-1988, the plaintiff made this statement before the learned Additional District Judge and Shri Amrik Singh and Shri Mahindroo accepted this challenge. They were ready to take special oath in Gurudwara and Mandir in terms of the plaintiff's statement. Consequently a local commissioner was appointed by the learned Additional District Judge who administered the oath to Shri Amrik Singh and Shri Mahendroo in Gurddwara and Mandir respectively, as desired by the plaintiff- petitioner and accordingly the learned Additional District Judge ordered on 14-10-1988 dismissal of that part of the claim covered by issue No. 1 as withdrawn.

(4) Against this order of 14th October, 1988, the present revision petition has been filed by the petitioner-plaintiff.

(5) The petitioner, who appeared in person, contended that he has challenged the respondents-defendants to take oath in Gurudwara and Mandir, as referred to above, after the Oaths Act, 1873 was repealed under Section 9 of the Oaths Act, 1969 and consequently he is not bound by the statements of the defendants made in Gurudwara and Mandir. Therefore, the learned trial court has erroneously decided Issue No. 1 against him.

(6) On the other hand, Mr. Rajinder Dhawan, learned counsel for the respondents, has argued that notwithstanding the repeal of Oaths Act of 1873, the petitioner is bound by the statement made by him before the trial court and since the oath has been taken by the respondent-defendants in accordance with the wish of the plaintiff-petitioner, the petitioner is bound by the statement so made.

(7) The petitioner in support of his submission has relied upon a decision of the Kamataka High Court in Pacharanda Nanjappa v. Pacharanda Belliappa (1979-29 2nd (Karnataka) 2018. In that a case the facts were almost similar as are in the present case. In that case the defendant No. 2 was administered oath as required by the plaintiff in Dharmashala temple before a commissioner appointed by the court and the Civil Judge dismissed the appeal and confirmed the decree for counter claim passed by the trial court. The parties had agreed to be bound by the oath after repeal of the aforementioned Oath? Act of 1873. The learned single Judge of that High Court examined the scope of Section 9 of the Oaths Act of 1969, which repealed Oaths Act of 1873 and further examined the scope of Section 9(2) of the Act whereby certain proceedings pending at the time of commencement of the Act were saved from the operation of the Oaths Act of 1969. It has been held therein that in order to apply the Oaths Act, 1873, in spite of the present Act, two conditions must be satisfied. They are : (1) that at the commencement of the present Act, the suit or proceeding must be pending; and (2) that the parties must have agreed in that proceeding that the suit or proceeding shall be disposed of by special oath contemplated under Sections 9 to 12 of the repealed Act and such agreement must have been there at the commencement of the Oaths Act, 1969. Since the special oath was administered after coming into force of Oaths Act of 1969, one of the conditions that the agreement must have been taken place before the commencement of the Oaths Act, 1969 was not satisfied and, therefore, it was held that Sections 9 to 12 of the Oaths Act, 1873 could not be resorted to in the proceedings before the Civil Judge and, therefore, the decree passed by the learned Civil Judge on the basis of the special oath was one without jurisdiction. It has been further observed by the Court that the objects and reasons of the Oaths Act, 1969 have stated, Inter aha, that 'the Law Commission has strongly opposed to retention of provisions, namely, Sections 9 to 12, relating to the conclusive or binding character of special oaths as in their opinion, it is opposed to juristic principles and public policy' ana for these reasons, Sections 9 to 12 of the Oaths Act, 1969 have not been regarded as binding by the learned single Judge.

(8) I have given carefully examined the matter but I regret I cannot subscribe to the view taken by the Karnataka High Court in P. Nanjappa's case (supra) in view of the decisions of other High Courts to be discussed later.

(9) No doubt. Section Ii of the Oaths Act, 1873 has been amended by Section 9 of the Oaths Act, 1969 and the conclusiveness contemplated by Section Ii of the old Act of 1873 is no longer there but notwithstanding such a repeal, the statements given by the parties in terms of the agreement arrived at between the parties on oath cannot be deprived of its status as evidence. Reference may usefully be made to a decision of Madras High Court reported as A. Munuswami Naidu v. K.S.P. Thyamaraya Chettiar and another . In that case also special oath was taken in ignorance of the fact that the Oaths Act, 1873, under which the procedure as to the taking of special oath was admitted, had been repealed and that the new Oaths Act had no provision for such a procedure. The Division Bench in that case relied upon another judgment reported as Vasudeva Shanbog v. Naraina Pai [(1880) 2nd 2 Mad. 356] wherein it has been observed : "REGARDING the effect of the special oath under Act 10 of 1873, the court pointed out that by requiring that the oath agreed to be taken shall be repugnant neither to justice nor to decency nor purport to affect any third person and making the oath a kind of special sanction, under which the evidence of a party or witness may be made conclusive by conduct., divested it of its character as an arbitrary and at times objectionable mode of settlement, and at the same time utilised its effect upon the conscience of a party or a witness, in the interests of justice, by constituting the agreement when it is observed into pre-appointed and irrebuttable evidence by consent".

Further, has been observed that no doubt the Oaths Act of 1873 had been repealed and that special oath was taken in ignorance of this fact that such Act had been repealed, this itself will not deprive its status as evidence.

(10) A similar question arose in Rustam etc. v. The Financial Commissioner, etc. (1981-83 Plr 759). In that case, the petitioners sought the ejectment of the respondents from the land in dispute on the ground that they were small land owners under the Punjab Security of Land Tenures Act, 1953 and the respondents took up the stand that they entered into an agreement with the petitioners to purchase the land under his tenancy for a sum of Rs. 20,500 and had paid Rs. 6,500 to the petitioners by way of advance and, therefore, he was no more a tenant under the petitioners. During the course of proceedings, the respondents made an offer to the petitioners that if they were prepared to take an oath in the mosque after taking the holy Koran in their hands to the effect that they had not received the above noted advance money, then the claim of the petitioners be accepted and he be ejected from the suit land. The petitioners accepted this offer and in the presence of a local commissioner, appointed by the court for administering such an oath, the petitioners took the oath. As a result of this, the Assistant Collector ordered the ejectment of the respondent. However, in revision, the Financial Commissioner set aside the order of ejectment by holding that the repeal of Oaths Act of 1873 in 1969, the taking of oath by the petitioners was of no consequence and remanded the case to the Assistant Collector to decide the case on merits. This order of the Financial Commissioner which was subject matter of challenge before the High Court, was set aside by the High Court by holding that the Financial Commissioner has taken a wholly erroneous view of the relevant law. According to the Punjab & Haryana High Court, the oath taken by the petitioners in pursuance of the offer of the respondent amounted to an admission of petitioners' claim on his part, which undoubtly was admissible in evidence against him under Section 20 of the Evidence Act. In fact that High Court came to the conclusion on the basis of a Full Bench decision of Punjab & Haryana High Court reported as Mrs. Florabel Skinner and others v. Jai Bajrang Kala Mandir Ram Lila Mandal, Hissar [(1980) 82 Plr 755 Air 1980 P&H 284] wherein the material observations reads as under:- "FOR the view I have already taken above, even if the 1873 Oaths Act was either not applicable in a given case or stood repealed or that there was no corresponding provision like section 9 to 12 thereof in the 1969 Oaths Act, then in such a situation the offer and acceptance of the parties to abide by the statement of a party would amount to a contract and the statement made by a party on the basis of the contract would be conclusive for the decision of the suit".

IN the present case, it may be noticed that oath in fact has already been administered before the local commissioner in terms of the plaintiff's statement made by the plaintiff-petitioner and that was administered in Gurdwara and Mandir in terms of the plaintiff's statement. In these facts and circumstances, in view of the law laid down by the Punjab & Haryana High Court and Madras High Court, with which I am in respectfull agreement, there is no manner of doubt that the oath taken by the respondents in pursuance of the offer of the petitioner amounted to an admission of the respondents' 'claim on his part which undoubtedly is conclusive against the petitioner and that the petitioner cannot be permitted to resile from such offer, more particularly when oath in fact has already been administered in terms of the offer of the petitioner which has been accepted by the other party, notwithstanding the fact that the Oaths Act, 1873 has been repealed and the statements made by the parties were in ignorance of the repeal of the 1873 Act by 1969 Act.

(11) The petitioner next contended that his statement on 14-10-1988, when he challenged the defendants-respondents to take oath in Gurudwara and Mandir,in fact has been extracted out of him by the defendants-respondents under threat and by exerting undue pressure on him and in case any binding agreement has been created between the petitioner and the respondents on this account, such an agreement is void ab-initio in the eyes of law and should be ignored. This argument advanced by the petitioner has been made merely to be rejected. There is no material on the record to substantiate his submission.

INthe context of foregoing, there is no merit in the revision petition, which is dismissed.