MUHAMMAD ALI Versus MUHAMMAD ASLAM
The facts giving rise to this constitution petition briefly stated are that a suit for specific performance of the contract was filed by Muhammad Ali petitioner against Major Muhammad Akram on the averments that on 7‑6‑1979 the respondent‑defendant contacted the petitioner‑plaintiff and a transaction of sale of land was agreed upon by them against sale price of Rs.2,01,875. The suit was contested by the respondent‑defendant urging, inter alia, that he neither contacted the petitioner‑plaintiff on 7‑6‑1979 nor entered into any alleged transaction of sale of the land. The learned trial Court framed issues arising out of the pleadings of the parties.
2. The petitioner‑plaintiff produced his witnesses and himself entered the witness‑box as P.W.8 on 5‑4‑1987, while making his statement as P.W.8, he made an offer to have the suit decided on the basis of the statement as proposed by him to be made on Holy Quran by the respondent‑defendant. The offer and acceptance was recorded by the trial Court in the shape of a note which reads as under:---‑
The petitioner‑plaintiff thereafter on 16‑5‑1987 submitted an application requesting that his offer recorded by the Court on 5‑4‑1987 be ignored and the case be decided in accordance with the documents, pleadings and evidence of the parties. This application was resisted by the respondent‑defendant and the learned trial Court after hearing the parties held vide order dated 9‑6‑1987 that the petitioner‑plaintiff is not in a position to resile from his statement of 5‑4‑87 and now the fate of the case only depends on the oath which the respondent‑defendant had accepted to take on the Holy Quran. The application was accordingly dismissed. The petitioner‑plaintiff challenged this order by filing a revision petition in the Court of District Judge, Kasur. The same was also dismissed vide order dated 28‑7‑1987. This led to the filing of the constitution petition by the petitioner plaintiff with the prayer that the orders dated 9‑6‑87 and 28‑7‑87 of the learned Civil Judge and the learned District Judge respectively be declared to have been passed without lawful authority and of no legal effect.
3. Learned counsel for the petitioner‑plaintiff in support of the constitution petition submitted that the note containing the offer and acceptance of the parties cannot be acted upon under the Oaths Act 1873 as the statements of the parties containing the offer and acceptance were not separately recorded; that the oath did not pertain to the dispute, subject‑matter of the suit, as such the statement on oath even if made by the respondent‑defendant cannot be treated as conclusive evidence in the case; that the offer being related to an irrelevant matter should not be acted upon as that would be repugnant to justice. The learned counsel explaining this last submission added that the causes are to be decided on merits and not with reference to irrelevant matters.
4. Learned counsel for the respondents‑defendant on the other hand argued that no specific form has been prescribed by law for recording the offer and acceptance of the parties; that on acceptance of the offer by the respondent‑defendant the agreement in the nature of a binding a contract came into existence and as such there cannot be any unilateral revocation of the offer; that the offer did not pertain to any irrelevant matter but related to a material point having bearing on the question whether the respondent defendant had at all contacted the petitioner‑plaintiff on 7‑6‑1979. Lastly it was argued that the petitioner‑plaintiff having already invoked the revisional jurisdiction cannot seek interference in exercise of constitutional jurisdiction and that even on merits, no case for interference in exercise of constitutional jurisdiction had been made out.
5. I have considered the respective submissions of the parties. The plea 'that the offer and acceptance recorded in the shape of a note cannot be acted upon as the trial Court had failed to record separate statements of the petitioner‑plaintiff as well as the respondent‑defendant containing the precise wording of the offer and acceptance has no merit. The Oaths Act 1873 does not prescribe any form or procedure for recording the offer made by one party and its acceptance by the others. It is true that the practice of the Courts is that whenever such an offer to bind oneself with the statement on oath of another person or opposite party is made, statement in the very words of such a party (person) is recorded, then the statement, of the opposite party signifying acceptance or rejection of the offer is recorded in the very words of that opposite party. Thereafter the person who has to make the statement on oath is summoned, if he is not present in Court. If he is present in Court, his statement in respect of the subject‑matter of the offer made and accepted is recorded. The record of offer made, its acceptance and the statement made pursuant thereto in the very words of these persons is maintained in order to ward off future disputes and controversies. The aforenoted procedure is adopted by the Courts advisedly and ordinarily the preparation of record in the precise words of the parties and persons concerned should be insisted upon. But every variation in the said form would not necessarily render the proceedings held illegal or irregular. In the instant case it was not even remotely suggested that the offer made was not the same as was recorded by the learned trial Judge in his note. This being the position there has not been any failure of justice on account of not recording the offer and the acceptance in the form of separate statements. The note contains the precise statement made by both the parties. The plea of the learned counsel is, therefore, repelled.
6. The second contention that the offer did not pertain to the matter in dispute is also factually incorrect. The main basis of the suit is the agreement to sell allegedly executed on 7‑6‑1979. The case of the respondent‑defendant is that he had not contacted the petitioner‑plaintiff on 7‑6‑1979 and had not entered into any transaction of sale of his land. The petitioner‑plaintiff in his statement had, earlier to the making of the offer stated that the respondent‑defendant had something to do on the said day in the office of the Tehsildar where he came and negotiations, which culminated into agreement to sell the land, were held. It was on account of such assertions and counter‑assertions that issues No.l and 2 were framed as under:‑
(1) Whether the defendant agreed to sell out the suit property to the plaintiff? O.P.P.
(2) Whether an agreement to sell dated 2‑6‑1979 is collusive and fictitious ? O . P . D .
It is in the aforenoted background and state of pleadings that the offer made‑ requires to be evaluated. At this stage reference may be made to Rati Ram v. Hardewa (A I R 1927 Allahabad 676) and Chinoo Ram v. Kanhya (A I R 1957 Him‑Pra 35) the precedents relied upon by learned counsel for the petitioner‑plaintiff. In the Allahabad judgment it was observed that "for the application of section 11, Oaths Act, it is necessary that the statement given by a referee should amount to "evidence" of the fact in controversy between the parties". In the other case it was observed that "primary meaning of section 11 is that the evidence given in any proceeding in which a challenge has been made and an oath has been taken shall be in that proceeding conclusive proof of the matter stated. It cannot automatically be evidence at all except in the proceedings in which it is actually being received". In this case the offer was that if the defendant makes a statement on special oath to the effect that he had not altered the figure of Rs.1,000 in the pronote to Rs.1,471 then the plaintiff would forego his claim in respect of Rs.471. On the oath being taken that he had not executed pronote for Rs.1,471 but only for Rs.1,000 it was held that the offer related only to the claim of Rs.471 and not to the remaining claim of Rs.1,000. In order to understand the ratio of these precedents a reference to section 11 Oaths Act 1873 appears necessary. Section 11 reads:‑
"The evidence so given shall, as against the person who offered to be bound as aforesaid, be conclusive proof of the matter stated. "
It is apparent from the very working of section 11 that the evidence given on oath pursuant to the acceptance of the offer shall be in that proceeding conclusive proof of the matter stated. The evidence 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. Such an 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 consistently held that to allow a party to resile without adequate reason from 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. See Mst. Asifa Sultana v. Honest Traders (P L D 1970 SC 331) and Jalal Din v. Chiragh Din (P L D 1972 Kar. 622). In the instant case offer to make a statement on Holy Quran that respondent‑defendant had not appeared before the Tehsildar on 7‑6‑1979 made by the petitioner‑plaintiff has important bearing on the question raised in the suit as presence of the respondent‑defendant in the Court of the Tehsildar on 7‑6‑1979 would have controverted and belied the pleas of the respondent defendant on the basis of which issues Nos.l and 2 were framed in the suit. Another aspect of the matter is that the offer to make the proposed oath and its acceptance gave rise to a new contract and on fulfilment of its terms the parties stand bound with the consequences. The parties having thus chosen their own procedure for resolving the dispute, none of them can unilaterally seek anulment of the agreement and ask the Court to ignore the contract and decide the case in accordance with the procedure prescribed by the Code of Civil Procedure. The net result to the above discussion is that there is no merit in the contention that offer to make the proposed oath did not pertain to the matter in dispute and as such the statement on oath to be made would not amount to evidence in the case.
7. The other plea that as the offer is repugnant to justice, the petitioner‑plaintiff should not be held bound to the same has also no force. Learned counsel was not able to show as to how the offer to make the proposed statement on Holy Quran was repugnant to interest or any principle of justice. As none of the contentions on merits argued by the learned counsel for the petitioner‑plaintiff has force the question whether in the facts and circumstances of the case constitutional jurisdiction should be allowed to be invoked need not be dealt with. I may, however, add that in a suitable case despite availing of the revisional jurisdiction interference in constitutional jurisdiction is possible if it is established that the impugned order was passed without lawful authority. This petition is, therefore, dismissed with costs.
M . Y . H . / M‑490/ L ???????????????????????????????????????????????????????????????????????????????????????????????????????????? Petition dismissed.