MUHAMMAD MAZHAR Versus ARSHAD MEHMOOD

1. CH. IJAZ AHMAD, J .‑‑‑The brief facts out of which the present appeal arises are that the respondent filed a suit for recovery of Rs.2,68,750 on the basis of the pronote dated 7‑9‑2002 against the appellant in the Court of Additional District Judge, Gojra on 2‑6‑2003, the appellant filed an application to appear and defend the suit. During the pendency of the suit of the respondent case was fixed before the Trial Court on 24‑7‑2003 and on the joint request of the counsel of the parties, parties were directed to appear before the trial Court on 26‑7‑2003. The case was placed before the Presiding Officer on 28‑7‑2003 on account of Holiday . Counsel of the parties appeared along with the respondent and Special Attorney of the appellant and made a statement that matter may be decided on the basis of an oath administered by Shabbir Ahmed Zaaman and the case was adjourned for 30‑7‑2003. Finally the case was fixed before the Trial Court on 3‑9‑2003. Shabbir Ahmad Zaaman had given statement on oath that the appellant had to pay Rs.2,68,750 to the respondent/plaintiff out of which the appellant/defendant had already paid an amount of Rs.68,750 and the appellant/defendant had to pay the remaining amount of Rs.2,00,000 to the respondent/plaintiff. The said order was passed in presence of the, counsel of the parties and in presence of the Special Attorney of the appellant namely Muhammad Khalid, who is real brother of the appellant/respondent. In view of the statement of Shabbir Ahmad Zaaman the learned Trial Court decreed the suit vide impugned judgment and decree dated 3‑9‑2003 to the extent of Rs. 2,00,000. The appellant being aggrieved filed this appeal.

2. The learned counsel of the appellant submits that the appellant has not given any authority to the Special Attorney to make any statement that the matter may be settled between the parties by administering oath by Shabbir Ahmad Zaaman. He further submits that it is the duty and obligation of the trial Court to summon the parties but the trial Court has not summoned the parties, therefore, the impugned judgment and decree is not sustainable in the eye of law. He further urges that the application to appear and defend filed by the appellant was not disposed of by the trial Court, therefore, the trial Court has committed material irregularity. He further urges that this Court has fixed the parameters to decide the cases on administering oath by the person in case the person who has to give statement on Holy Qur'an must be in a position to read the Holy Qur'an and understand the Holy Book and this question was not asked from the referee, therefore, impugned judgment is not in accordance with the law laid down by the superior Courts. In support of his contention, he relied upon Anayat Ali v. Muhammad Yaqub (PLD 1999 Lah 328).

3. The learned counsel of the respondent submits that trial Court has summoned the parties vide order dated 24‑7‑2003 on the joint request of the learned counsel of the parties but respondent appeared before the trial Court on the next date of hearing whereas the appellant himself did not appear and his Special Attorney Muhammad Khalid, who is real brother of the appellant appeared before the trial Court and offer was made and accepted by the respondents, therefore, appellant cannot wriggle out from this offer, which was accepted by his real brother Special Attorney Muhammad Khalid and his counsel and order was passed to refer the matter to Shabbir Ahmad Zaaman vide order, dated 28‑7‑2003 and his statement was recorded after a considerable period of two months on 3‑9‑2003 in presence of the Special Attorney of the appellant and his counsel, therefore, it is a consent decree and appeal is not maintainable. In support of his contention, he relied upon Atta Muhammad v. Muhammad Ramzan (1989 MLD 4554). He further submits that the matter was referred to the Zaaman in presence of the counsel of the appellant, therefore, the appellant cannot wriggle out from the statement accepted by his counsel in terms of Order III of C.P.C. In support of his contention, he relied upon Ch. Khurshed Ahmed Advocate v. Government of Punjab and others (2003 CLC 550).

4. We have considered the contentions of the learned counsel of the parties and perused the record.

5. It is better and appropriate to reproduce the relevant portion: of the Special Power of Attorney and Power of Attorney signed by the appellant and his Special Attorney in favour of their Advocate and orders of the trial Court dated 24‑7‑2003, 28‑7‑2003 and 3‑9‑2003 to resolve the controversy between the parties:‑‑

2. In case the aforesaid basic facts are put in a juxta position then it is crystal clear that the appellant has himself signed the power of attorney in favour of the Advocate, therefore; offer accepted in presence of his counsel by his Special Attorney is binding upon the appellant as per law laid down by the Honourable Supreme Court in the following judgments:‑

3. Munir Ahmad Mughal's case (PLD 1982 SC 204).

4. Dr. Ansar Hussain's case (1971 SCMR 634).

5. Haji Mewo's case (PLD 1962 Karachi 162)

6. It is pertinent to mention here Special Attorney is the real brother of the appellant, who was given special authority in terms of the special power of attorney mentioned above, therefore, statement of his brother/special attorney is binding upon the principal/appellant. The trial Court was conscious and directed the parties to appear on the next date of hearing vide order dated 24‑7‑2003. The appellant has decided not to appear himself and his special attorney appeared before the trial Court on 28‑7‑2003 wherein the matter was referred to the Zaaman whose statement was recorded by the trial Court on 3‑9‑2003. It is pertinent to C mention here that counsel of the appellant was present on all the material dates including 24‑7‑2003, 28‑7‑2003 and 3‑9‑2003. The requisite rule of conscious was observed by the trial Court as parties were fully conscious about the consequences of making offer and its acceptance. In arriving to this conclusion, we are fortified by the law laid down in Ikramul Haq's case (1992 MLD 867). It is settled principle of law that once an offer is made and is accepted by the other side then the other side has no right whatsoever to wriggle out from that offer, which was accepted by the other party on the well‑known principle of approbate and reprobate and also on the principle that the offer by a party to a suit as to being bound by a statement on oath of his opponent on being accepted by the opponent is in the nature of a binding agreement. In arriving to this conclusion we are fortified by the following judgments:‑‑

7. Syed Muhammad Ramzan's case (1990 SCMR 681)

8. Ikramul Haq's case (1992 MLD 867)

9. Jaffar Abbas's case (PLD 1991 SC 1131)

10. Muhammad Ali's case (PLD 1990 SC 841)

11. Abdul Hameed's case (1983 CLC 595)

12. Syed Abdul Hakeem's case (1991 MLD 762)

13. Attiq Ullah's case (1981 SCMR 162)

14. Saleem Ahmad's case (1974 SCMR 224)

15. The contention of the learned counsel of the appellant that the application for leave to defend has not been finally decided by the trial Court has also no force in view of the agreement arrived at between the parties that the case may be decided on oath by a Zaaman. In arriving to this conclusion, we are fortified the law laid down by the Honourable Supreme Court in Nasarullah Jan's case (1996 SCMR 108). It is also settled principle of law that omission to record appellant's statement separately was merely an irregularity, which would not in law invalidate the entire proceedings of taking oath and recording the statement. In arriving to this conclusion we are fortified by the law laid down in the following judgments:‑

16. Abdul Qayyum's case (PLD 1993 SC 289)

17. Khadam's case (1991 MLD 1250)

18. Muhammad Siddique's case (1996 CLC 695)

19. In view of what has been discussed above, we do not find any infirmity or illegality in the impugned judgment of the trial Court. The appeal has no merits and the same is dismissed.

20. S.A.K./M‑863/L Appeal dismissed.