ATTIQULLAH vs KAFAYATULLAH

ORDER

1. ASLAM RIAZ HUSSAIN, .J.--Briefly the facts giving rise to the present petition for leave to appeal against the order of the High Court, dated 17-9-1979 are gas follows Attiqullah petitioner filed a suit against Kafayatullah respondent that he was the owner in possession of land 'measuring 110 kanals marlas situated in Square No. 51, Chak No. 142, Tehsil and District Sargodha. Along with the said suit, he also moved an application for ad interim injunction.

2. The learned Civil judge dismissed this application on 6-6-1979. Attiqullah thereupon filed an appeal against the said order in the Court of the learned District Judge, Sargodha. The appeal was fixed for 5-7-1979 and Attiqullah was permitted to lift the produce of the land in question. On learning of this Kafayatullah respondent made an application for early disposal of the appeal. During the hearing of this application, Attiqullah petitioner contended that he had purchased the land in question from Kafayatullah and had also deposited a sum of Rs. 1,20,000 in the respondent's bank account as consideration for the sale. Kafayatullah on the other hand contended that he had never entered into an agreement for the sale of the land in question with the petitioner and that the aforementioned amount had been deposited in his bank by Kafayatullah himself. Attiqullah made; an offer that the matter be decided on an oath to be taken by Kafayatullah and said that if Kafayatullah took an oath on the Holy Koran to the effect that he had not sold the land in question to him (Attiqullah), the latter would be bound by it. The offer was accepted by Kafayatullah and the case was fixed for that purpose on the next day. But on the next day, Attiqullah filed an application seeking to withdraw the offer. The case was, therefore, adjourned to the next day (20th June 1979) for considering whether it was open for the petitioner to go back upon the offer which had already been accepted by the other party. Arguments were heard on the 20th (the next day). Case-law on the subject was cited before the learned District Judge who held that the petitioner could not be allowed to resile from the offer made by him. On hearing the pronouncement of this order, the petitioner and his counsel left the Court Room. The learned District Judge, however, asked Kafayatullah to take the oath on the Holy Koran, who accordingly stated on oath that he had not sold the land in dispute in favour of Attiqullah petitioner and had not received any money ire consideration thereof from Attiqullah and further that the amount deposited in the bank belonged to him and had not been deposited in consideration of the sale of the land in question. The learned District Judge thereupon dismissed the appeal against the rejection of the application for ad inte0rm injunction with the observation that "while I myself dismiss the appeal, the dismissal of the suit is left with the lower Court". The petitioner filed a revision petition against this order in the High Court which came to the same conclusion as the learned District Judge, namely, that the petitioner could not be allowed to resile from the offer of oath made by him and, as such, dismissed the revision petition, vide the impugned order, dated 12-9-1979.

3. Hence the present petition.

4. The learned counsel for the petitioner argued that the learned Judge in Chamber had taken a patently erroneous view of the legal position while dismissing the petitioner's revision petition. He argued that since no section in the Oaths Act deals with the question as to whether or not one can resile from an offer of oath made by him, therefore, the question must be decided on general principles. In support of this he relied. On Haji Jan Muhammad and another v. Sher Dil and another (PLD1975Lah.97), Muhammad Akbar and another v. Muhammad Aslam and another (PLD1970SC241) and Mst. Asifa Sultana v. Honest Traders, Lahore and another (PLD 197030331). It may be mentioned that section 9 of the Oaths Act, 1873 provides that if a party to a judicial proceeding undertakes to be bound by evidence given on special oath or solemn affirmation by the opposite-party or by a witness, then the Court may inquire from the opposite-party whether he agrees to this offer or not.

5. If that party does not agree then that is the end of the matter. If, however, the other party accepts the; offer and agrees to take the requisite oath, then as provided by section 10 of the Oaths Act, the Court may proceed to administer the oath or may issue a commission to any person to administer it.

6. If the other party undertakes the prescribed oath then, as provided by section 11 of the Act, the same shall be taken to be conclusive proof of the matter in question as against the person who had offered to be bound by it. If, however, a party or a witness declines to make the oath on solemn affirmation as promised by him earlier, section .12 of the Act provides that be shall not be compelled to make it, but the Court shall record as a part of the proceedings the nature of the oath or affirmation proposed, the fact 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. The question as to whether or not a person making an offer to get the case decided on oath to, be taken by the opposite-party can be permitted to resile from the offer when the other party has accepted the same was considered inter alia in Jalal Din v. Chiragh Din and others ( PLD 1972 Kar. 622), wherein relying on AIR 1941 Lah.

7. 173, AIR 1948 All. 125 and AIR 1957 Orissa 226, it was observed that "an agreement made in Court to be bound by evidence given on special oath is a settlement to which the Court is also a party, therefore, such an agreement is not one of these agreements which a party may keep or break as it liked subject only to a claim from the aggrieved party for damages. To allow a party to resile, without adequate reasons, from an undertaking of this nature would amount to allow him to play the game of hide and seek with the other party and even to abuse the process of the Court".

8. A similar situation had arisen in the case reported as Muhammad Akbar and another v.

9. Muhammad Aslant ' and another, which has been cited by the petitioner in support of his contention. In that case Muhammad Akbar etc. Had filed a suit for rendition of accounts and dissolution of partnership against Muhammad Aslam etc. Before the written state--ment was filed, the parties came to an agreement and stated before the Court that the suit may be decided in accordance with the statement made by one Abdur Razaq as to' the matters in dispute between them. The case was then adjourned to 11th December 1968 for which date Abdur Razaq was summoned. Abdur Razaq appeared on that date but before his statement could be recorded, Muhammad Akbar etc. (plaintiffs) moved an application on section 11 (2) and section 25 of the Arbitration Act and Order XXIII, rule 3, C. P. C. For resiling from the agreement. The trial Judge entertained the application and called for a reply by the respondents for 14-1-1964, but at the same time he recorded the statement of Abdur Razaq without administering him any oath. When the matter reached the Supreme Court, leave was granted to consider "that if there was no compromise within the meaning of rule 3, Order XXIII, C. P. C., then the trial Court should not have recorded the statement of Abdur Razaq after the appellants had retracted from the agreement and expressed lack of confidence in him". A number of authorities were cited before the Court during the arguments some of which related to Oaths Act, 1873, but since Abdur Razaq had not been given any oath before his statement had been recorded, it was observed that the provisions of the Oaths Act were not attracted to the case. As such this authority has no bearing on .The question in issue before us in the present case. However, the issue involved in Mst. Asifa Sultana v.

10. Honest Traders, Lahore and another was the same as involved in the present case. In that case leave was granted' to consider the question "whether the party which offers to abide by oath of the opposite-party cannot resile from the agreement if the latter is willing and ready to perform his part of the contract".

11. After considering a number of authorities, the Court observed that since no section of the Oaths Act deals with the question whether a party making an offer to abide by a statement on oath by another party or witness, can resile from such offer. Therefore, this question must be decided on general principle of law. The learned Court observed further "The offer to abide by the oath of the opposite-party and its acceptance by the other party was in the nature of an agreement and the question whether the party who offered can resile from it depends on the facts and circumstances of each case". It was held in the said case that in the circumstances of that particular case, the learned Court was justified in exercising its discretion in favour of the person making the offer and - permitting him to resile from the same. The matter was clinched in a subsequent judgment of this Court, i.e. Saleem Ahmad v. Khushi Muhammad ((1) 1974 SCMR 224), where the same question came up for consideration. In that case the defendant offered that if Wali Muhammad, the brother of the plaintiff took an oath on the Holy Koran in respect of the matter in issue, he would agree to a decree being passed on the basis of such a statement in favour of the plaintiff. The next day, however, he made an application saying that he had learnt from the people of the village that Wali Muhammad was a habitual liar and was accustomed to taking false oaths. He, therefore, wanted to withdraw his offer. The learned Court, however, recorded the statement of Wali Muhammad on oath and the case was decided against the defendant on the basis of that statement. The defendant challenged the said order before the High Court through a revision petition, which was dismissed. Saleem Ahmad then filed a petition before this Court which upheld the decision of the High Court in the following words :- "The High Court rejected both the contentions and held that there was no ground in law or in equity on which the petitioner could claim, the right of resiling from the solemn agreement which was entered into by him. Such an agreement. Was in the nature of contract and one of the contracting parties could not be allowedback out of it unless the contract was void or had become frustrate'

12. None of these eventualities had occurred in this case.

13. We notice that in the present case also the petitioner had not raised any contentions or alleged any facts on the basis whereof the trial Court (or for that matter this Court) could either reach the conclusion that the contract was void or had become frustrated. As such we are of the view that the learned trial Court was justified in refusing to permit the petitioner to resile from his offer to be bound by the oath.

14. In this view of the matter, the petition is dismissed as being without any merit.