MUHAMMAD RAFIQUE Versus SAKHI MUHAMMAD

1. SAIDUZZAMAN SIDDIQUI, J.‑‑‑The petitioners are seeking leave to appeal against the judgment of a learned Judge in Chambers of Lahore High Court, Multan Bench, dated 23‑6‑1994 whereby Civil Revision Application No.931‑D of 1994 filed by the petitioners was dismissed.

2. The relevant facts of the case are that the petitioners instituted a suit before the Civil Court for specific performance of an agreement of sale in respect of landed property in Mohallah Faridnagar Pakpatan, belonging to the respondents. The suit was contested by respondent No.1 (Sakhi Muhammad) and respondent No.2 (Muhammad Ishaq) who filed joint written statement contending that the suit was collusive between the petitioners and respondent No3 (Mst. Jannat Bibi) and respondent No.4 (Mst. Khurshid Bibi). Respondents Nos.3 and 4 conceded the claim of the petitioners whereupon the trial Court framed following issues in the case:‑‑

3. "(1) Whether the plaintiffs' suit is collusive with defendants Nos.3 and 4, if so, its effect? OPD 1 & 3.

(2) Whether the plaintiffs' suit is not maintainable in view of P.O. No.2 of the written statement? OPD.

(3) Whether defendant No.1 executed an agreement of sale of the disputed property to predecessor of plaintiffs and got executed receipt in this respect, if so, its effect? OPP.

(4) Relief.

4. No other issue pressed."

5. During pendency of the suit, the petitioners made an offer before the trial Court that in case respondents Nos.1 and 2 produce in Court from among the persons namely, Sabir Ali Sher Ali, Sharaf Ali and Khushi Muhammad any person who states on oath on Holy Qur'an that the suit of the petitioners was false and that defendant No.1 had neither entered into agreement of sale of the property with Chiragh Din nor received the earnest money of Rs.18,000 and had not executed the sale agreement their suit may be dismissed with costs. It was further offered that in case none of the 4 persons named above could be produced by the defendants to take requisite oath, the suit of the plaintiffs/petitioners be decreed. This offer was accepted by the respondents and, accordingly, one of the persons named above by the petitioners, namely Sabir Ali appeared before the trial Court on 11‑1‑1994 and took oath on Holy Qur'an in the manner offered by the petitioners. The suit filed by the petitioners was, accordingly, dismissed. The petitioners challenged the order of the trial Court dismissing their suit before the firft appellate Court but without any success. They finally agitated the matter in Civil Revision before the High Court which has also been dismissed by a learned Judge in Chambers and the petitioners are now seeking leave to appeal against the impugned judgment of the High Court.

6. In support of the petition, the learned counsel for the petitioners contended that the petitioners had objected before the trial Court to the taking of special oath by Sabir Ali on which the trial Court had directed to hear the arguments but this contention of the petitioners was never decided by the trial Court. It is accordingly, contended by the learned counsel that the offer administering special oath having been withdrawn by the petitioners before the oath could be taken by Sabir Ali the Court should have proceeded in the case on merits and decided the same in accordance with the law. The contention of the petitioners has no force. The petitioners and their counsel made the following statement before the trial Court on 22‑11‑1993.

7. In reply to the above statement of petitioners and their counsel, the following statement was made by the respondents (Muhammad Ishaq) and their counsel:‑‑

8. In accordance with the statement reproduced above, Sabir Ali appeared in Court on 13‑12‑1993 and offered to take oath as desired in the statement of the petitioners and their counsel made before the trial Court on 22‑11‑1993. It appears that at that stage petitioners stated before the Court that they do not want that Sabir Ali should be allowed oath on Holy Qur'an and thereafter case was adjourned to 11‑1‑1994. The diary sheet recorded on 13‑12‑1993 reads as follows:‑‑

9. Thereafter, the case was transferred to another Civil Judge who recorded the statement of Sabir Ali on special oath on 11‑1‑1994 and dismissed the suit in accordance with the statement of the petitioners and their counsel made on 22‑11‑1993. The sole question which arises for consideration in the present petition is whether a person having offered before the Court for disposal of the case in accordance with the special oath can be permitted to resile from such statement after the offer of special oath has been accepted by the contesting party. This question has been squarely answered in a decision of the Court reported as Attiqullah v. Kafayatullah (1981 SCMR 162). In the above cited case, the petitioner had filed a suit against the respondent alleging that he was owner in possession of the land measuring 110 Kanals and 3/4 Marlas of land situated in Square No.51, Chak No. 142, Tehsil and District Sargodha. During hearing of the application for grant of interim relief Attiqullah petitioner in that case made an offer that the matter be decided on oath to be taken by Kafayatullah and stated that if Kafayatullah, respondent in that case, took oath on Holy Qur'an to the fact that he had not sold the land in question to him (petitioner in that case) the latter would be bound by it. This offer was accepted by the respondent, in that case, and the case was fixed for that purpose on neid date. However, on the new date, the petitioner, in that case, filed an application seeking to withdraw the offer. It was held by the District Judge, in that case, that the petitioner could be allowed to resile from the offer made by him and the matter was decided on basis of the oath taken by the respondent, in that case, on Holy Qur'an. The matter was taken in revision before the High Court and the High Court also agreed with the conclusion of the District Judge that the petitioner could not be allowed to resile from the offer made by him and accordingly, the revision was also dismissed. The matter was, thereafter, brought before this Court in a petition for leave to appeal but leave was refused with these observations:‑‑

10. "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:‑‑

11. 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 a contract and one of the contracting parties could not be allowed to back out of it unless the contract was void or had become frustrated. None of these eventualities had occurred in this case."

12. 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."

13. The case reported as Mst. Asifa Sultana v. Honest Traders, Lahore (PLD 1970 SC 331) relied by the learned counsel for the petitioners was duly noticed and referred in the case of Attiqullah v. Kafayatullah, supra.

14. In view of the above discussed legal position it is quite clear that after the offer of special oath made by the petitioners before the trial Court ‑was accepted by the respondents, the petitioners could not be allowed to resile from the said oath unless they were able to establish that the agreement arrived at for disposal of the suit in accordance with special oath was either void or was frustrated. No such circumstance in the case was present and therefore, the suit was rightly disposed of by the trial Court on basis of the special oath taken by Sabir Ali. No case for interference with the order of the High Court is made out. This petition is without any merit which is, accordingly, dismissed and leave is refused.

15. A.A./M‑3188/S Leave refused.