MANZOOR AHMA Versus FAZIL HUSSAIN

ORDER

This civil revision has arisen out of a suit brought by the petitioners Manzoor Ahmad and another. Against the respondents. Fazil Hussain and another for possession of certain land through pre emption it was alleged by the petitioners that the transaction pre empted by them was infact a sale made by one pandi in favour of the respondents but it was given the colour of a gift, with a view to defeating pre-emptive rights. It was also averred by them that the sale price was fictitiously shown as Rs. 400 although the sale price actually paid was Rs. 200 During the pendency of the suit. learned counsel for the petitioners made proposal for settlement of the dispute on the basis of special oath by one of the respondents namely fazil Hussain. His offer was accepted by the respondents accordingly special oath was administered to Fazil Hussain and the suit dismissed by a civil judge of rajanpur. On the basis of oath proceedings. Judgment and decree so passed by the learned trial court were assailed by the petitioners by taking appeal before the District Judge Rajanpur but in vain. Hence this civil revision.

2. It was contended by learned counsel for the petitioners that Fazil Hussain respondent did not make oath as prescribed by the petitioners and therefore the suit could not be decided on the basis of the oath administered to him.

3. Statement by which learned counsel for the petitioners made proposal regarding special oath reads as follows:- oath made by Fazil hussain respondent was to the following effect:- contention of the learned counsel was that since Fazil Hussain respondent did not make the following statement on oath the special oath administered to him was incomplete and thereof could not constitute basis of the judgment and decree passed by the learned Civil Judge:

4. Judgment delivered by the learned civil judge reveals that after performing ablution Fazil Hussain did make oath by the Holy Qur an in his court room by repeating the words of the proposal in view of these observations of the learned civil judge thereof it appears that the above words underlined by me were also in the statement made by him on oath but they were inadvertently omitted by the learned civil judge while recording the statement of Fazil Hussain or they were not actually uttered by Fazil Hussain and the plaintiffs were not bothered about it. If the position had been otherwise they would have invited the attention of the learned trial court towards the omission on his part but according to the record they did not raise a syllable of protest in the matter. Thus, by their conduct they are now estopped from making capital out of the said omission.

5. Learned counsel for the petitioners was also counsel for the petitioners at the stage of trial when I asked him as to why he had not objected to the disposal of the suit on the basis of special oath if the oath had not been made as desired by the petitioners he submitted that he did raise objection in regard to above deficiency in the oath but the learned trial court did not listen to him his plea appears to be an afterthought inasmuch as it has not been incorporated in the grounds of appeal taken to the learned District judge or in the grounds revision filed before this court. A perusal of the oath made by Fazil Hussain indicated that the second sentence of his oath was uttered by him when it was pointed out by the petitioner or his learned counsel or the learned civil judge that the first sentence thereof did not serve the purpose if at that time attention of the learned civil judge had been invited to the shortcoming of Fazil Hussain in regard to the mutation in question he would have readily made amends in this regard I am therefore not impressed by the contention of the learned counsel that above deficiency in the special oath administered to Fazil Hussain was not made good despite his objection in this behalf.

6. when I inquired from learned counsel for the petitioners as to whether the petitioners would agree to withdraw this civil revision if Fazil Hussain respondent now appears before this court and makes supplementary statement by the Holy Qur an in respect of the mutation in dispute his reply was in the negative.

7. It is also noteworthy that material portion of the statement required to be made by Fazil Hussain on oath was in regard to payment of sale price and the portion relating to the mutation in question was of ancilliary character. It is not disputed that he did make oath denying payment of sale price thus he had in substance made the oath as suggested by the petitioners.

8. To sum up proposal of the petitioners regarding special oath was substantially complied with by Fazil Hussain by making that oath deficiency in the oath which is now being pressed into service by the petitioner to nulify that oath proceedings is of little consequence. They did not raise objection in this behalf at the relevant time and are therefore now estopped from questioning validity of the decision based on the oath proceeding s it seems that they were satisfied with the decision of the suit as aforesaid but subsequently changed their mind and thought of assailing it on flimsy grounds. Their attitude in not giving up their contest despite supplementary oath to be made by Fazil Hussain in pursuance of the suggestion made by me shows that they have not come to this court with clean hands they want to deprive the respondents of the fruits of the daring if not disastrous step taken by Fazil Hussain by making the oath in question. It is a matter of common knowledge that in view of the sanctity of Holy Qura'n the Muslims are reluctant to make oath by it even with regard to facts which are absolutely true some one who make such an oath which is factually incorrect certainly invited the wrath of Allah Almighty not only in this world but also in the world hereafter veiwed in this context the respondents cannot be deprived the benefit accruing to them as a result of the oath administered to one of them unless there is sufficient cause for so doing such cause has not to my mind been shown by the petitioners I am thereof not inclined to interefere with the unaimous verdict of the learned lower courts especially in view of the conduct of the petitioners alluded to earlier.

7. Resultantly this civil revision fails. It is accordingly dismissed in limine.

A..A./M-672/L Revision dismissed.