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PETITIONER: K.M. SINGH

       Vs.

RESPONDENT: SECRETARY, ASSOCIATION OF INDIAN UNIVERSITIESAND OTHERS

DATE OF JUDGMENT21/04/1992

BENCH: YOGESHWAR DAYAL (J) BENCH: YOGESHWAR DAYAL (J) PANDIAN, S.R. (J) REDDY, K. JAYACHANDRA (J)

CITATION:  1992 AIR 1356            1992 SCR  (2) 630  1992 SCC  (3) 129        JT 1992 (4)    12  1992 SCALE  (1)839

ACT:                  Indian Evidence Act, 1872:   Section  20- Statement made on special oath by  person  - Evidentiary value of -Held an admission of the person.  Code of civil procedure, 1908:  Suit-Disposal of -By special oath-Validity of:  Oaths Act, 1969: Section 9-Oaths Act, 1873- Repeal of -Whether debars parties from entering into any contract.

HEADNOTE:      The  petitioner in the special Leave petition  filed  a suit for declaring that the resignation tendered by him  was involuntary  and  a result of fraud,coercion and  threat  as well as the inducement as alleged in the plaint. During  the pendency  of this suit, he filed an application under  Order 10 Rule 2 Read with Section 151 of the code of Civil  Proce- dure  for a direction that if the respondent  officers  No.1 and  2 took a special oath in Gurudwara and  Mandir  respec- tively  to the effect that the resignation of the  plaintiff was  not extracted from him under duress, fear,  inducement, fraud,  coercion then that part of the claim might  be  dis- missed as withdrawn.      The  respondent Officers having accepted the  challenge the Additional District Judge appointed a local commissioner to administer the oath to the said two persons as desired by the petitioner, and the same having been taken and the court duly  informed, the additional District Judge  ordered  dis- missal of that part of the claim covered by the suit.     On   the   following  day  of  the  dismissal   of   the application, the                                                          631 petitioner filed another application with a prayer to decide the  aforesaid  issue on merits and evidence  and  that  the respondents   might not be allowed to take advantage of  the blunder committed by the petitioner in his application,  and for cancellation of the court’s order dismissing the  claim. This application was dismissed by the Trial Judge. The Trial Court took the view that Section 20 of the Evidence Act  was applicable  and  that the repeal of the Oath  Act,  1873  by

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Section  9  of  the Oaths Act, 1969 no  where  debarred  the parties from entering into any contract.      The petitioner filed revision petition against the  two orders of the Trial Court but the same was dismissed.      In  the  special  leave petition  of  this  Court,  the petitioner contended in person that in view of the repeal of the  Oaths Act, 1873 by the Oaths Act, 1969 the  suit  could not be decided on the basis of special oath.      Dismissing the special leave petition, this Court,      HELD: 1. The oath was administered as per the petition- er’s   statement and there is thus no manner of  doubt  that the oath taken by the two persons in  pursuance of the offer of  the petitioner amounted to an admission of the  respond- ent’s claim on his part within the meaning of Section 20  of the Evidence Act.[639 D]      2.  The two persons were the nominees of the  plaintiff and the statement of the nominees by virtue of Section 20 of the  Evidence  Act would be treated as an admission  of  the parties.[639 D-E]      3.  The Trial Court was right in its view that  Section 20  of the Evidence Act was applicable in the instant  case, and  that the repeal of the Oaths Act, 1873 by Section 9  of the  Oaths Act, 1969 nowhere debarred the plaintiff  parties from  entering  into any contract. The orders of  the  Trial Court  are  therefore unassailable and the  High  Court  has rightly dismissed the revision petition.[635 G-H;639 E]      Hirachand Kothari (dead) by Lrs. v. State of  Rajasthan and another, [1985] Supp. SCC 17, referred to.      J.  A. Munnuswami Naidu v. K.S.P.  Thyagaraya  Chettiar and  another,  AIR  1977 Madras  273,  Vasudeva  Shanbog  v. Naraina  Rai,  1880  ILR 2 Madras 356, Rustam  etc.  v.  The Financial Commissioner, etc. 1981-83 PLR                                                         632 759,  Mrs.Florabel  Skinner and Others  v.Jai  Bajrang  Kala Mandir  Ram  Lila  Mandal, Hissar, AIR 1980 P &  H  284  and Thakur  Singh & Others v. lnder singh, AIR 1976 P &  H  287, approved.      Pacharanda Nanjappa v. Pacharanda Belliappa deceased by Seethavva & Others, 1979-29 ILR (Karnataka) 2018 and  Ananda Chandra Sahu (deceased by L.R.) & Others. v. Ananta  Khuntia and other, AIR 1983 Orissa 250, over-ruled.

JUDGMENT:      CIVIL  APPELLATE JURISDICTION :Special  Leave  Petition (civil) No.10436 of 1991.      From the Judgment and Order dated 26.4.91 of the  Delhi High Court in C.R. No. 359 of 1989.      Petitioner-in-person.      P.P.  Rao Rajindra Dhawan and Jitendra Sharma  for  the Respondents.      The Judgment of the Court was delivered by      YOGESHWAR  DAYAL, J. This Special Leave Petition  filed by  Sh.  K.M.  Singh,  who was  a  Finance  Officer  of  the Association  of  Indian Universities, AIU  House,  16  Kotla Marg,  New Delhi, is against the Judgment dated 26th  April, 1991 passed by the learned Single Judge of the High Court of Delhi in Civil Revision No. 359 of 1989.      In  the revision petition the petitioner had sought  to set  aside an order dated 30th January, 1989 passed  by  the learned  Additional  District Judge, Delhi,  dismissing  the application  filed on his behalf wherein he had  prayed  for cancelling  an order dated 14th October, 1988 vide  which  a part  of the claim of the suit of  the  petitioner/plaintiff

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covered  by issue No.1 was ordered to be dismissed as  with- drawn.      The  facts  giving rise to the filing of  the  revision petition  were  that the petitioner had filed a  suit  inter alia  for  declaring that the resignation  tendered  by  the petitioner/plaintiff   was  involuntary  and  a  result   of fraud,coercion  and  threat  as well as  the  inducement  as alleged  in  the  plaint. This plea of  the  petitioner  was subject matter of issue No.1.      During the course of the proceedings the petitioner had filed an application dated 14th October, 1988 purporting  to be under Order 10                                                   633 Rule 2 read with Section 151 of the Code of Civil  Procedure In  this application it was prayed that if Sh.  Amrik  Singh and  Sh.R.P.  Mahendroo,  officers  of  defendant  No.1.took special  oath  in Gurudwara and Mandir respectively  to  the effect  that  the resignation of the plaintiff was  not  ex- tracted  from  him on 5th April, 1976  under  duress,  fear, inducement,fraud, coercion then that part of the claim might be dismissed as withdrawn. The plaintiff/petitioner in  fact made this statement before the Additional District Judge and Sh.  Amrik Singh and Sh. Mahendroo accepted the  said  chal- lenge. 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 Additional  District Judge  who administered the oath to the said two person  the Gurudwara and Mandir respectively, as desired by the  plain- tiff/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. The  revi- sion petition was directed against this order as well.      That  on  the  next date i.e. 15th  October,  1988  the plaintiff/petitioner  filed  another  application  with  the prayer  to  decide the aforesaid issue No.1  on  merits  and evidence  and  the  defendants may not be  allowed  to  take advantage  of the blunder committed by  the  plaintiff/peti- tioner  and  for cancelling the order  dated  14th  October, 1988.  This  application dated 15th October. 1988  was  dis- missed by the trial court by order dated 30th January,1989.      In the reply filed to the Special Leave Petition it  is pointed  out that the suit was fixed on 14th  October,  1988 for  further evidence of the defendants and in fact  on  the said  date Dr. Amrik Singh was to be cross-examined  by  the petitioner.  Dr. Amrik Singh as well as Sh. R.P.  Mahendroo, Under  Secretary of the Association of  Indian  Universities were  present in the Court and when the suit was called  the petitioner  filed the application dated 14th  October,  1988 wherein he had offered to abide by the statement made by Dr. Amrik Singh and Sh. R.P. Mahendroo. Whereupon both  Dr.Amrik Singh and Sh. R.P. Mahendroo expressed their willingness and agreed  to take oath and accepted the offer. The  petitioner affirmed  the same and made a further statement  before  the court as under:-           "Dr.  Amrik  Singh D.W. present in the  Court  and R.P.                                                      634           Mohindru,  officials of the respondents take  spe- cial  oath  in   Gurudwara and Mandir  respectively  to  the effect that the resignation of the plaintiff K.M. Singh  was not extracted from him on 5.4.76 under duress, fear, induce- ment,  fraud  or coercion then that portion  of  the  plaint shall be dismissed as withdrawn."      The  said offer made by the petitioner was put to  both Dr. Amrik Singh and Sh. Mahendroo and both of them  accepted

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the  same and also made the following statement in Court  as under:-           "We  are ready to take special oath in the  Mandir and  Gurudwara as stated by the plaintiff in  his  statement above."      In view of the offer made by the petitioner and accept- ed  by  both of them the Court thereafter passed  the  order reading as under:-           "Present  - Plaintiff in person. Counsel  for  the defendant.           One  witness  of  the deft.  Dr.  Amrik  Singh  is present  for  further cross-examination  by  the  plaintiff. However, the plaintiff has filed an application under rule 2 read with Section 151 C.P.C.and has stated that if the  said witness  of  the  defendant and Shri  R.P.  Mahendroo  Under Secretary  of the defendant No.1 takes special oath  in  the Gurudwara  and  Mandir respectively to the effect  that  the resignation  of the plaintiff was not extracted from him  on 5.4.76  under duress, fear, inducement, fraud  or  coercion, then  that part of the claim of the plaintiff may be  deemed to  be dismissed as withdrawn. The witness and  official  of the  defendant stated that they are ready to take  the  said special  oath in the Gurudwara and Mandir respectively.  Let statements be recorded. Statements have been recorded  sepa- rately.  The Application filed by the plaintiff stands  dis- posed  of.  The counsel for the defendant  states  that  the defendant  is  ready and willing to pay  the  admitted  part claim, if any, of the plaintiff.The plaintiff submits direc- tion  to  go alongwith the parties and the  witness  to  the Gurudwara  and Mandir respectively for taking special  oath. The  plaintiff states that he is ready to bear the  expenses of the local commissioner. Accordingly, I hereby appoint Sh. A.P.S. Ahluwalia, Advocate, as Local Commissioner present in Court with the direction to visit alongwith the                                                        635 parties to Gurudwara Sisganj Sahib and Gauri Shanker  Mandir today  at 1 p.m. to take special oath by the  said  persons. His fee is fixed at Rs.500 to be paid by the plaintiff.  The plaintiff has paid the fee of the Local Commissioner in  the Court."      Thereafter  the  petitioner paid the fee fixed  by  the trial Court to the Local Commissioner. The time and date for visit to Gurudwara and Mandir were fixed by the Court at the instance  of the petitioner as well as Dr. Amrik  Singh  and Sh.  Mahendroo. As per the directions of the Court the Local Commissioner  in  the company of the petitioner,  Dr.  Amrik Singh and Sh. Mahendroo went to Gurudwara Sisganj as well as Gauri  Shanker Mandir both situated in Chandni Chowk,  Delhi where  the Local Commissioner administered the oath to  both of  them  and their statements were recorded. Both  of  them denied  that  the  plaintiffs resignation  was  obtained  by fraud, coercion, threat and or that he was induced to tender the  resignation. After the said oath was taken  the  matter was  taken  up in the afternoon session by the  trial  court when  the  Local Commissioner submitted his  report  to  the Court whereupon the trial court passed the following order:-      "Present-As before.          The Local Commissioner has filed his report to  the          effect  that he has got the special  oath  adminis-          tered  to the witness and official of the   defend-          ant.  In  view of the statement  of  the  plaintiff          recorded   earlier  the  suit  of   the   plaintiff          with  regard to his resignation  and  consequential          reinstatement which is covered by Issue No.1 stands          dismissed as withdrawn.

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          Now  to  come  up  for  making  payment  by   the          defendant of   the other claim of the plaintiff, if          any, on 4.11.1988’’      As  stated earlier, thereafter, on 15th  October,  1988 the   application  was  filed  for  recalling   this   order dismissing a part of the suit as withdrawn. The trial court, however,  took the view that Section 20 of the Evidence  Act was applicable and it also took the view that the repeal  of the  Oaths Act, 1873 by Section 9 of the Oaths Act, 1969  no where debar the parties form entering into any contract.      High Court, as stated earlier,  dismissed the  revision petition and                                                       636 agree  with the view of trial court. Before the  High  Court reliance  was placed on the decision of the  Karnataka  High Court  in  Pacharanda Nanjappa v. Pacharanda  Belliappa  de- ceased  by  Seethavva and others,  1979-29  ITR  (Karnataka) 2018.  The High Court, however, did not follow the aforesaid decision  and preferred to decide the matter in view of  the decisions of the Madras High Court in J.A. Munnuswami  Naidu v.  K.S.P.  Thyagaraya  Chettair and  another,  A.I.R.  1977 Madras  273;  Vasudeva Ghanbog v. Naraina Pai,  1880  ILR  2 Madras 356 decision of the Punjab and Haryana High Court  in Rustam etc. v. The Financial Commissioner, etc. 1981-83  PLR 759 and Full Bench decision of Punjab and Haryana High Court in  Mrs.  Florabel Skinner and others v.  Jai  Bajrang  Kala Mandir Ram Lila Mandal, Hissar AIR 1980 p & 284.      Before us also the petitioner, who appeared in  person, submitted that in view of the repeal of the Oaths Act,  1873 by the Oaths Act, 1969 the suit could not be decided on  the basis  of  special oath. The petitioner also relied  on  the decision  of  the Orissa High Court in Ananda  Chandra  Sahu (deceased  by L.R.) and others v. Ananta Khuntia and  others AIR 1983 Orissa 250.      It may be noticed that both the learned Single Judge of the  Karnataka  High Court as well as the  learned  Division Bench of the Orissa High Court were correct in noticing  the effect of repeal of the Oaths Act, 1873 by Section 9 of  the Oaths Act, 1969, but it appears the provisions of Section 20 of  the Evidence Act were not brought to their  notice.  The learned  Judges of the Karnataka High Court and Orissa  High Court  were right in observing in what cases the  provisions of  the  Oaths Act, 1873 was to continue to  govern  and  in which cases they would cease to apply. But as stated  earli- er,  the provisions of Section 20 of the Evidence  Act  were not brought to their notice. Section 20 of the Evidence  Act reads as follows :- "        20  Admissions by persons expressly referred to  by          party to suit.-Statements mode by persons to whom a          party to the suit has expressly referred for infor-          mation  in  reference to a matter  in  dispute  are          admissions.                         Illustration          The question is, whether a horse sold by A to B  is sound.           A says to B "Go and ask C ,C knows all about itC’s          statement is an admission In Hirachand Kothari (dead) by lrs v. State of Rajasthan and another (1985)(SUPP) SCC 17, this Court held thus           "Section 20 is the second exception to the general          rule  laid  down in section 18. It deals  with  one          class of vicarious admissions. Where a party refers          to a third person for some information or an  opin-          ion  are matter in dispute the statements  made  by          the  third  person  are  receivable  as   admission

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        against  the person referring. The word   ‘informa-          tion’  occurring in section 20 is not to be  under-          stood in the sense that the parties desired to know          something which none of them had any knowledge  of.          Where  there  is  a dispute as  regards  a  certain          question  and the Court is in need  of  information          regarding  the  truth on that point  any  statement          which the referee may make is nevertheless informa-          tion within the purview of section 20 and is admis-          sible.  The  reason  behind  admissibility  of  the          statement  is that when a party refers  to  another          person  for  a  statement of his  views  the  party          approves  of  the  utterance  in  anticipation  and          adopts  that as his own. The principle is the  same          as that of reference to arbitration          The  reference under section 20 may be  by  express          words or by conduct but in any case there must be a          clear  admission  to refer and such  admission  are          generally  conclusive.  Admissions may  operate  as          estoppel and they do so where parties had agreed to          abide by them "      A  similar  question  arose in  J.A.  Munnuswami  Naidu (supra) before the division bench of the Madras High  Court. There  a suit had been filed on 16th June 1971 for  recovery of  money  against the appellant on the foot of  a  security bond. The second respondent in the suit  was a puisne  mort- gagee.  The appellant filed the written statement  that  the respondent, the first mortgagee had fraudulently  suppressed the  payment  of interest in the security bond  and  if  the proper account was taken the money will be due to the  first respondent. When the suit was taken up for trail the  plain- tiff agreed to take a special oath on his family deity  that for  the suit security bond no money except those  shown  by way of endorsement was                                                       638 received by him it was also agreed that the plaintiff  mort- gagee  taking  such  an oath the suit may  be  decreed.  The plaintiff took a special oath and the suit was decreed.  The judgment  debtor filed an un-numbered execution  application praying that the decree be declared as a nullity having been passed  by the civil Court having no jurisdiction. The  exe- cuting  court dismissed the objections to the execution  and the  matter  came up in appeal before the  High  Court.  The learned single judge of the High Court dismissed the appeal. Whereupon the matter was taken up before the Division  bench Kailasam C.J(as his lordship then was) and Balasubrahmanyam, J.  dismissed  the Letters Patent Appeal. It  was  submitted before  the division Bench that because the Oaths Act,  1873 has  been repealed what the plaintiff had stated on  special oath  is not an evidence. The learned single judge  who  had heard the appeal was confronted with the arguments that  the date  on  which the special oath was taken  the  Oaths  Act, 1873,which provided that when a special oath was taken under section  10, it would be conclusive against the  person  who offered was no longer in force as the said Act had been  re- pealed  in 1969 and the new act of 1969 dispensed  with  the procedure  as  to  the taking of the special  oath  and  its consequences it was common ground that the 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  observed that  they  could not accept the  contention  that   because Oaths  Act,1873  has been repealed what  the  plaintiff  has stated on special oath is not an evidence Earlier the single

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judge had taken the same view.      The  question directly in issue came up before a  divi- sion  bench of the Punjab and Haryana High Court  in  Thakur singh and others v.Inder Singh,AIR 1976 P & H 287.The  divi- sion bench took the view that :           "The  only effect of exclusion of section 9 to  12          of the oaths Act,1873 by Oaths Act,1969 is that  if          any  party to any judicial proceeding offers to  be          bound  by any special oath and the court thinks  it          fit  to administer such an oath to the other  party          consenting  thereto and such oath is taken  by  the          other  party  the evidence given on  such  oath  as          against  persons who offered to be bound as  afore-          said  would  no  more be conclusive  proof  of  the          matter stated in such deposition where an agreement          was arrived at between the counsel for parties that          if the                                                   639          Defendant were to take oath in a particular  Gurud-          wara  stating that the suit land was not of  plain-          tiff and that defendant had not executed any agree-          ment in favour of plaintiff, the suit of  plaintiff          be  dismissed and in pursuance of the order of  the          Court on the basis of agreement, the defendant  did          take  oath there being no special oath either  pre-          scribed or taken and the suit having been dismissed          on the basis of such  oath          Held  that  the compromise arrived at  between  the          counsel  for the plaintiff of behalf of his  client          and  the  defendant appellant would be  covered  by          section 20 the Evidence Act and the plaintiff would          be bound by the statement made by the defendant  if          the  same  is found to have been made  strictly  in          accordance with the terms offered by him" It  will  be noticed that in the present case the  oath  was administered   as   per   plaintiffs/petitioners   statement and,therefore there is thus no manner of doubt that the oath taken by two persons is pursuance of the offer of the  peti- tioner  amounted to admission of respondent’s claim  on  his part  within the meaning of section 20 of the Evidence  Act. The  two persons were the nominees of the plaintiff and  the statement  of  the nominees by virtue of section 20  of  the Evidence Act would be treated as an admission of the parties thus the orders of the Trial  court dated 14th  October,1988 and 30th January ,1989 were unassailable and the High  court has rightly dismissed the revision petition .   The special leave petition is accordingly dismissed  with- out any order as to costs N.V.K                                          Petition dismissed.