Amaravathi Ammal vs Periyanayagammal

K. Veeraswami, J.—This Civil Revision Petition comes before us, as Venkatadri, J.; thought there was divergence of authority on a certain

point relevant to the case.

The petitioner had executed a promissory note in favour of the respondent who assigned it to a third party. In the suit instituted by the assignee

of the promissory note, the petitioner challenged the respondent who figured as a witness to take oath and deny that the debt under the promissory

note had been discharged. The respondent took oath to that effect which the Court naturally accepted, with the result the suit was decreed. The

present Suit, out of which the Civil Revision Petition arises, has been instituted by the petitioner against the respondent to recover from him the

amount covered by the earlier decree. The suit was resisted on the ground that it was barred by res judicata, in view of the oath taken in the

previous proceeding. This ground was accepted and the suit was dismissed. When the Civil Revision Petition came before Venkatadri, J., in the

first instance, his attention was invited to Keshava v. Rudran ILR (1882) Mad. 259, Sanyasi Baritya v. Arteswaro (1913) 24 M.L.J. 312 : ILR

(1913) Mad. 287, and M.R. Ranganatha Aiyar Vs. Jayavelu Mudaliar and Another, , and in view of the conflict of decision on the question of res

judicata, he thought it desirable that the question should be decided by a Division Bench.

We are of opinion that no question of res judicata as such arises in the present proceedings. The respondent figured in the earlier suit only as a

witness. The difference of opinion between Keshava v. Rudran ILR (1882) Mad. 259, and M.R. Ranganatha Aiyar Vs. Jayavelu Mudaliar and

Another, , on the one hand and Sanyasi Baritya and Another Vs. Artaswaro and Others, , on the other was on the effect of the decision in the

earlier suit based on evidence on oath given by a party to the litigation from the standpoint of the applicability of the rule of res judicata. In Keshava

v. Rudran ILR (1882) Mad. 259, Turner, C.J. and Kindersley, J., were of opinion that a decision based upon the oath of a party was not an

adjudication by the Court on an issue, which would operate as an estoppel in future proceedings. The learned Judges observed:

The oath having been taken, the Court is constrained to accept the statements of the deponent as true and cannot exercise its judgment in this

matter. It would be highly dangerous to regard the decision of an issue so arrived at as an adjudication, operating as an estoppel in any future

proceedings. The terms of the Act indicate that the party consents to be bound only in respect of the subject-matter of the pending proceedings.

Benson, J., and Sundara Aiyar, J., in Sanyasi Baritya and Another Vs. Artaswaro and Others, , howevcr took a different view:

The decision of any matter directly and substantially in issue in a former suit between the same parties, would nonethelses be res judicata because

the decision was based on the oath of one of the parties or a witness in the former suit.

The learned Judges thought that even in such a case, the result was an adjudication by a Court of the contest and that the effect of taking oath

Was merely to furnish conclusive evidence on the matter to which it related. On that view, they found it difficult to see why the principle of res

judicata should not be applicable to the decision given by the Court, simply because the evidence or part of the evidence on which it was based

was furnished by the oath taken. They also considered that there was nothing in any of the sections of the Oaths Act limiting the effect of the

evidence given on oath to the subject-matter of the pending proceedings. King, J., in M.R. Ranganatha Aiyar Vs. Jayavelu Mudaliar and Another,

, preferred to follow Keshava V. Rudran ILR (1882) Mad. 259. As we mentioned, in all these cases the contest was between the same parties as

in the earlier suit.

On the question as to what precisely is the effect of the conclusiveness of the evidence u/s 11 of the Oaths Act in subsequent proceedings

between the parties one of whom was not a party to the earlier litigation we are of opinion that the conclusiveness is confined to the proceedings in

which the oath-taking took place. Section 11 of the Oaths Act read by itself may appear to be wider in its effect, but we consider that its scope

has got to be limited by its context. Sections 8 and 9 clearly refer to particular proceedings and there is no reason why we should read Section 11

as having reference to proceedings other than those contemplated by Sections 8 and 9. Our understanding the three sections, particularly of

Section 11 in the context accords with the preponderating judicial view in Keshava v. Rudran ILR (1882) Mad. 259, M.R. Ranganatha Aiyar Vs.

Jayavelu Mudaliar and Another, and Badiaddin Ahmed v. Nizamuddin Naider ILR (1906) Cal. 386. Though these cases were not concerned

directly with the effect of oath-taking in subsequent proceedings between persons of whom only one was a party and the other was a witness in the

earlier litigation in deciding the question of the applicability of the rule of res judicata they had to consider the Scope of Section 11 in the context of

the preceding sections in the Oaths Act. We respectfully follow the view expressed in those cases and hold that the conclusiveness contemplated

by section n is confined only to the particular proceeding in which the oath-taking took place. It may be that the oath taken in the earlier litigation

which should be conclusive against the challenging party there may be evidence in the subsequent proceeding; only it will not be conclusive

evidence. That means, the Court in the Subsequent proceedings will be at liberty to weigh the effect of the fact of the earlier evidence on oath.

On that view, the petition is allowed. The trial Court will proceed with the suit. There will be no order as to costs.