PLJ 2000 Lahore 1354
Present: ghulam mehmood qureshi, J. AKHTAR ALI and others-Petitioners
versus
EJAZ AHMAD and others-Respondents W.P. No. 13913 of
1998, decided on 28.5.1999.
Oaths Act, 1873 (X of 1873)--
....S. 8-Constitution of Pakistan, (1973) Art.
199-Disposal of case on basis of oath-Plaintiffs offer for disposal of case on basis
of oath of defendants was accepted by defendant and on statement on oath of
defendants plaintiffs suit was dismissed-Plaintiff s subsequent application to
resile from their offer and
for decision of suit on merits was dismissed by trial Court and by Revisional Court-Validity-Plea that statement made by
plaintiff "A" was not binding on other plaintiffs, has not force for
the simple reason that plaintiff 'A' an advocate had common interest with other plaintiffs-Order sheet reveals that offer
was voluntarily made which was accepted by defendants—Such offer when
accepted matured into agreement binding on
parties and the same was enforceable under law-Plaintiff 'A' being Advocate was holding power of attorney on
behalf of their plaintiffs—Even
revision was filed by plaintiff 'A' as also Constitutional petition has been
filed by him, therefore, plea that Trial Court had exerted pressure on such Advocate was not warranted-Provisions of Oath Act, 1873 does not prescribe
any form or procedure for recording
offer made by one party and its acceptance by other-Parites having chosen their
own procedure for resolving dispute none of them can unilaterally seek annulment of agreement and ask the Court to ignore contract and decide the case in accordance
with law and procedure as prescribed by Civil Procedure Code, 1908-Offer
of oath having been voluntarily made when
the same was accepted by defendant; Trial Court rightly disallowed plaintiff to
resile from it and after administering the oath, according to desire of
plaintiff dismissed suit, and revisional Court rightly maintained order of Trial Court-There being no illegality, infirmity
or jurisdictional defect in the order passed by Courts below, no interference therein was warranted in
Constitutional jurisdiction.
[Pp. 1357 & 1358]
A, B & C
1988 CLC 718; PLD 1970 SC 331; PLD
1972 Karachi 622; 1981 SCMR 162 ref.
Ch. Akhtar Alt, Advocate for himself
and on behalf of other Petitioners.
R.A. Zafar, Advocate for Respondent. Date of hearing:
25.5.1999.
judgment
The present case has
chequered history but would only confine myself to the present litigation.
2. The brief facts relevant for the disposal
of this Constitutional petition as embodied in the said petition are that suit
under Section 9 of the Specific Relief Act was filed by the petitioners against
Respondents Nos. 1 and 2 alongwith Muhammad Tufail (now deceased). Earlier to this suit
the predecessor-in-interest
of the Petitioners Nos. 1 to 4 and Petitioner No. 5 filed ejectment petition
against the tenants in the suit property and in consequence thereof got vacant
possession of various portions of the property in dispute in respect of the tenants
through process of law. Four rooms were got vacated by the petitioners on the upper,
stoiy of the property including one room from Muhammad Sharif and according
to the averments the vacant possession was delivered by Mst. Bano,
Respondent No. 2. Thereafter, Respondents Nos. 1 and 2 alongwith Muhammad Tufail forcibly
and unlawfully occupied the disputed room by dispossessing the petitioners which necessitated
filing of the above said suit. The suit was contested by the respondents and they
claimed ownership of the above said room and denied the claim of the
petitioners. It is further averred that the parties concluded their respective
evidence and the respondents also filed an application under Section 12 (2) CPC
against the order of ejectment passed in favour of the petitioners and
against Muhammad Latif. Another round of litigation started and the respondents
filed objection petition in the execution proceedings which was dismissed
by the learned Rent Controller. This order was assailed in appeal which too
was dismissed. Thereafter the respondents filed writ petition in the High Court
which was also dismissed. Perusal of the interim order shows that on 6.6.1996, the
petitioners/plaintiffs filed written arguments and the case was adjourned to
17.6.1995 at the request of the learned counsel for respondents/defendants
for further arguments. However, again the case was adjurned and ultimately on
7.9.1996 the case was partly
heard and was adjourned on the ground that the parties have agreed for the disposal of the case on the basis
of oath and the statement of Akhtar
Ali, Petitioner No. 1 was also recorded which reads as under:- The
petitioners/plaintiffs thereafter on the very next day i.e. on 8.9.1996 submitted an
application to the effect that the offer record by the Court on 7.9.1996 be
ignored and the case be decided on merits. This application was resisted by
respondents/Defendants Nos. 1 and 2 and the learned trial Court after hearing the parties
vide its order dated 5.5.1997 dismissed the suit of the petitioners/plaintiffs
with the following observation:-
"Ijaz Ahmed and Mst. Bano took
oath on Holy Quran according to the statement dated 7.9.1996 that they have not
taken possession of any room ofProperty No. 25 which the plaintiffs got
possession through execution on 28.4.1992. They have also deposed that they have never changed
any portion thereof and that room is still in possession of the plaintiffs.
Both the above said parties Ijaz Ahmed and
Mst Bano took oath on Holy Quran in toto according to the statement of the
above dated i.e.7.9.1996.
In result thereof, suit is dismissed with
costs as was contracted between the parties vide order dated 7.9.1996. As
it is a direction and it was to be decided within two weeks from 22.4.1997, so
compliance report be submitted before the Worthy Registrar, Lahore High Court, Lhr. Decree sheet be
drawn up. After due completion, the file be consigned intp the General Record Room with
the prescribed time."
3.
The above said order shows that the learned trial Court
did not allow
the petitioners to resile from the statement made by Petitioner No. 1 dated 7.9.1996 and
now fate of the case only depends on the oath which the respondents/defendants had
accepted to take on
Holy Quran. The application as well as the suit of the
petitioners was accordingly dismissed. The petitioners/plaintiffs challenged this
order by filing a revision petition in the Court of District Judge, Lahore. The same
was also dismissed vide order dated 30.5.1998. This led to the filing of
the present Constitutional petition with the prayer that the orders dated 5.5.1997
(allegedly written on 4.6.1997), of the learned Civil Judge and order dated
30.5.1998 passed by the learned Addl. District Judge be decided to have been
passed without lawful authority and of no legal effect.,
4. Learned counsel for
the petitioners/plaintiffs has contended that the evidence of the parties was
not concluded and before acceptance of the
ffer
by the other party, the learned trial Court was not justified in disallowing the Petitioner
No. 1 to resile from his statement. It is further ontended that Petitioner No. 1 made the
statement in his personal capacity and the same was not binding as for the other
petitioners are concerned. It is further submitted that the respondents were
required it make statement on Holy Quran but there is no such statement on record so
the alleged offer and acceptance of the parties can not be acted upon under the
Oath Act, 1873 as the statements of the parties containing the offer and acceptance were
not separately
record. It is further contended that the Court allegedly put ressure on the
learned counsel for the petitioners/plaintiffs to decide the case on special oath
and also procure signature of Ch. Akthar Ali, Advocate on various papers
which was done under duress. Learned counsel for the petitioners, however,
vehmentaly contended that the case should have been decided on merits
and not with reference to irrelevant matters.
5. Conversely learned counsel for the
respondents/defendants argued that
no specific form has been prescribed by law for recording offer and acceptance
of the parties. He further argued that the learned Civil judge has given a finding that the statement of Ch.
Akhtar Ali was accepted by the respondents and
contended that on
acceptance of the
offer by respondents/defendants
the agreement in the nature of a binding contract came into existance and that cannot be unilaterally revoked. He further contended
that administration of oath under the Oath Act being a special enactment and if at all the Petitioner No. 1 was
not allowed to resile from his statement
no irregularity has been committed by the learned trial Court and the revisional Court was justified in dismissing
the revision petition of the
petitioners and in such like cases, no case for interference in exercise of Constitutional jurisdiction is made out.
petitioners and in such like cases, no case for interference in exercise of Constitutional jurisdiction is made out.
6. I
have heard learned counsel for the parties at length and have also gone through the record. The plea that the
statement made by etitioner No. 1 was not binding on the other
petitioners has no force for the simple
reason that Ch. Akhatar Ali, Advocate who is also one of the petitioner has common interest with others. The
order sheet reveals that the offer
was voluntarily made which was accepted by the resp ndents/ defendants. This being the position the offer when
accepted mature into an agreement binding on the parties and the same is
enforceable under law. It is also
borne out from the record that Petitioner No. 1, Ch Akhtar Ali, Advocate was holding power of attorney
(Vakalatnama) on behalf of other petitioners
as is evidence from the application dated 8.9.1996, filed and
signed by him. Even the revision petition before the District Judge was filed through Ch. Akthar Ali. Advocate and the present writ petition is also filed through him, therefor the contention of learned counsel for the petitioners that the statement made by him before the learned trial Court was not binding on the other petitioners is davoid of any merit. I am also not prepare to accept the contention raised by learned counsel that Ch. Akhtar Ali, Advocate was forced to sign the statement as well as other papers for the reason that Ch. Akthar Ali, Advocate appears to be counsel of sufficient standing and there is no meterial on record to suggest that the learned trail
Court had any personal interest to exert such pressure upon Petitioner No. 1 who was an Advocate. The next plea that the learned trial Court has failed to record separate statement of respondents/defendants containing the precise wording of the offer and acceptance is also of no significance. The Oath Act, 1873 does not prescribe any form or proceaure for recording the offer made by one party and its acceptance by the others. The order dated 5.5.1997 clearly shows that Jjaz Ahmad and Mst. Bano took oath on Holy Quran according to the offer made by Ch. Akhtar Ali, Advocate through his statement dated 7.9,1996. Learned counsel for the petitioners has failed to point out that the offer made was not the same as was recorded by the learned trial Judge rather by submitting an application for permission to resile and decide the case on merit support the order recorded by the learned trial Court. This application was dismissed by a detailed order dated 24.10.1996. The Revision petition filed by the petitioners also met the same fate so it cannot be said that any coercion or pressure was made as against said Akhtar Ali petitioner and the offer was suffering from any legal defect and that statement of the petitioner was not properly recorded in the Court. During arguments learned counsel for the petitioners has pointed out that the learned trial Court had decided the matter in issue which he ceased to do so as the case was transferred to some other Court. Perusal of the record shows that the case was transferred to some other Court but on the application of the petitioners the transferee Court sent back record to the District Judge for its transfer to the learned transferor Court on the ground that partial arguments were already heard in the case, therefore, the contention that the relevant Court had not Jurisdiction to adjudicate upon the matter has no force. In the present case as the parties have chosen their own procedure for resolving the dispute none of them can unilaterally seek annulment of the agreement and ask the Court to ignore the contract and decide the case in according with law and procedure as prescribed by the Code of Civil Procedure. The evidence as held in Muhammad Ali vs. Major Muhammad Aslam and others (1988 CLC 718), is to be treated as conclusive proof as the agreement made in Court to remain bound by the evidence given on special oath amounts to a settlement to which the Court is also a party. The agreement is not one of those agreements, which a party may keep or break as it liked subject only to claim for damages of the aggrieved party. It has been consistenly held that to allow a party to resile without adequate reason form an undertaking of this nature would amount to allowing him to play the game of hide and seek with the other party and even to abuse the process of the Court. Reference may also be made to Mst. Asifa Sultana vs. Honest Traders (PLD 1970 SC 331) and Jalal Din vs. Chiragh Din (PLD 1972 Karachi 622). The learned trial Court has specifically stated in its order that the said oath had been administered to the respondents. There is no reason to disbelieve the finding recorded by the learned trial Court to this effect It has also been held in Attiqullah vs. Kafayatullah (1981 SCMR 162) that the party undertaking to be bound by evidence given by special oath by opposite party cannot resile from it as it amounts to be a binding contract and unless it is found to be void or frustrated, the Court is not justified to permit petitioner to resile from his offer when it has also been accepted by the other side.
signed by him. Even the revision petition before the District Judge was filed through Ch. Akthar Ali. Advocate and the present writ petition is also filed through him, therefor the contention of learned counsel for the petitioners that the statement made by him before the learned trial Court was not binding on the other petitioners is davoid of any merit. I am also not prepare to accept the contention raised by learned counsel that Ch. Akhtar Ali, Advocate was forced to sign the statement as well as other papers for the reason that Ch. Akthar Ali, Advocate appears to be counsel of sufficient standing and there is no meterial on record to suggest that the learned trail
Court had any personal interest to exert such pressure upon Petitioner No. 1 who was an Advocate. The next plea that the learned trial Court has failed to record separate statement of respondents/defendants containing the precise wording of the offer and acceptance is also of no significance. The Oath Act, 1873 does not prescribe any form or proceaure for recording the offer made by one party and its acceptance by the others. The order dated 5.5.1997 clearly shows that Jjaz Ahmad and Mst. Bano took oath on Holy Quran according to the offer made by Ch. Akhtar Ali, Advocate through his statement dated 7.9,1996. Learned counsel for the petitioners has failed to point out that the offer made was not the same as was recorded by the learned trial Judge rather by submitting an application for permission to resile and decide the case on merit support the order recorded by the learned trial Court. This application was dismissed by a detailed order dated 24.10.1996. The Revision petition filed by the petitioners also met the same fate so it cannot be said that any coercion or pressure was made as against said Akhtar Ali petitioner and the offer was suffering from any legal defect and that statement of the petitioner was not properly recorded in the Court. During arguments learned counsel for the petitioners has pointed out that the learned trial Court had decided the matter in issue which he ceased to do so as the case was transferred to some other Court. Perusal of the record shows that the case was transferred to some other Court but on the application of the petitioners the transferee Court sent back record to the District Judge for its transfer to the learned transferor Court on the ground that partial arguments were already heard in the case, therefore, the contention that the relevant Court had not Jurisdiction to adjudicate upon the matter has no force. In the present case as the parties have chosen their own procedure for resolving the dispute none of them can unilaterally seek annulment of the agreement and ask the Court to ignore the contract and decide the case in according with law and procedure as prescribed by the Code of Civil Procedure. The evidence as held in Muhammad Ali vs. Major Muhammad Aslam and others (1988 CLC 718), is to be treated as conclusive proof as the agreement made in Court to remain bound by the evidence given on special oath amounts to a settlement to which the Court is also a party. The agreement is not one of those agreements, which a party may keep or break as it liked subject only to claim for damages of the aggrieved party. It has been consistenly held that to allow a party to resile without adequate reason form an undertaking of this nature would amount to allowing him to play the game of hide and seek with the other party and even to abuse the process of the Court. Reference may also be made to Mst. Asifa Sultana vs. Honest Traders (PLD 1970 SC 331) and Jalal Din vs. Chiragh Din (PLD 1972 Karachi 622). The learned trial Court has specifically stated in its order that the said oath had been administered to the respondents. There is no reason to disbelieve the finding recorded by the learned trial Court to this effect It has also been held in Attiqullah vs. Kafayatullah (1981 SCMR 162) that the party undertaking to be bound by evidence given by special oath by opposite party cannot resile from it as it amounts to be a binding contract and unless it is found to be void or frustrated, the Court is not justified to permit petitioner to resile from his offer when it has also been accepted by the other side.
7. In the instant
case, as already mentioned the offer was voluntarily made by the
petitioner/Plaintiff No. 1 which was accepted by the respondents/Defendants
Nos. 1 and 2 as such the learned trial Court rightly disallowed the
petitioner/plaintiff to resile from it and after administering
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M. zaman khan v. speical judge (A.C.) (Muhammad Naseem Chaudhri, J.)
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Lah.
1359
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the
oath, according to the desire of the petitioners/plaintiffs and the revisional Court rightly upheld the
order of the trial Court.
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8. The petitioners have failed to point out any illegality,
infirmity or jurisdictional defect in the
order passed by both the Courts below. The finding recorded by the Courts below is eminently just and correct.
This petition has no merit and the same is dismissed. No order as to
costs.
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(A A)
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Petition dismissed.
