AKHTAR ALI Versus EJAZ AHMAD

The present case has chequered history but would only confine myself to the present litigation.

2. The brief facts relevant for the disposal of this Constitutional petition as embodied in the said petition are that suit under section 9 of the Specific Relief Act was filed by the petitioners against respondents Nos. l and 2 alongwith Muhammad Tufail (now deceased). Earlier to this suit the predecessor‑in‑interest of the petitioners Nos. l to 4 and petitioner No.5 filed ejectment petition against the tenants in the suit property and in consequence thereof got vacant possession of various portions of the property in dispute in respect of the tenants through process of law. Four rooms were got vacated by .the petitioners on the upper, storey of the property including one room from Muhammad Sharif and according to the averments the vacant possession was delivered by Mst. Bano, respondent No.2. Thereafter, respondents Nos. l and 2 alongwith Muhammad Tufail forcibly and unlawfully occupied the disputed room by dispossessing the petitioners which necessitated filing of the above said suit. The suit was contested by the respondents and they claimed ownership of the above said room and denied the claim of the petitioners. It is further averred that the parties concluded their respective evidence and the respondents also filed an application under section 12(2), C.P.C. against the order of ejectment passed in favour of the petitioners and against Muhammad Latif. Another round of litigation started and the respondents filed objection petition in the execution proceedings which was dismissed by the learned Rent Controller. This order was assailed in appeal which too was dismissed: .Thereafter, the respondents filed writ petition in the High Court which was also dismissed. Perusal of the interim order shows that on 6‑6‑1996, the petitioners/plaintiffs filed written arguments and the case was adjourned to 17‑6‑1996 at the request' of the learned counsel for respondents/defendants for further arguments. However, again the case was adjourned and ultimately on 7‑9‑1996 the case was partly heard and was adjourned on the ground that the parties have agreed for the disposal of the case on the basis of oath and the statement of Akhtar Ali, petitioner No. l was also recorded which reads as under:‑‑‑

The petitioners/plaintiffs thereafter on the very next day i.e. on 8‑9‑1996 submitted an application to the effect that the offer recorded by the Court on 7‑9‑1996 be ignored and the case be decided on merits. This application was resisted by respondents/defendants Nos. l and 2 and the learned trial Court after hearing the parties vide its order, dated 5‑5‑1997 dismissed the suit of the petitioners/plaintiffs with the following observation:‑‑

"Ijaz Ahmed and Mst. Bano took oath on Holy Qur'an according to the statement, dated 7‑9‑1996 that they have not taken possession of any room of Property No.25 which the plaintiffs got possession through execution on 28‑4‑1992. They have also deposed that they have never changed any portion thereof and that room is still in possession of the plaintiffs.

Both the above said parties Ijaz Ahmed and Mst. Bano took oath on Holy Qur'an in toto according to the statement of the above. dated i.e. 7‑9‑1996.

In result thereof, suit is dismissed with costs as was contracted between the parties vide order, dated 7‑9‑1996. As it is a direction and it was to be decided within two weeks from 22‑4‑1997, so compliance report be submitted before the Worthy Registrar, Lahore High Court Lahore, decree‑sheet be drawn up. After due completion, the file be consigned into the General Record Room with the prescribed time. "

3. The above said order shows that the learned trial Court did not allow the petitioners to resile from the statement made by petitioner No. l , dated 7‑9‑1996 and now fate of the case only depends on the oath which the respondents/defendants had accepted to take on Holy Qur'an. The application as well as the suit of the petitioners was accordingly dismissed. The petitioners/ plaintiffs challenged this order by filing a revision ‑petition in the .Court of District Judge, Lahore. The same was also dismissed vide order, dated 30‑5‑1998. This led to the filing of the .present Constitutional petition with the prayer that the orders, dated 5‑5‑1997 (allegedly written on 4‑6‑1997), of the learned Civil Judge and order, dated 30‑5‑1998 passed by the learned Additional District Judge be declared to have been passed without lawful authority and of no legal effect.

4. Learned counsel for the petitioners/plaintiffs has contended that the evidence of the parties was not concluded and before acceptance of the offer by the other party, the learned trial Court was not justified in disallowing the petitioner No. l to resile from his statement. It is further contended that petitioner No. l made the statement in his personal capacity and the same was not binding as far the other petitioners are concerned. It is further submitted that the respondents were required to make statement on Holy Qur'an but there is no such statement on record so the alleged offer and acceptance of the parties cannot be acted upon under the Oath Act, 1873 as the statements of the parties containing the offer and acceptance were not separately recorded. It is further contended that the Court allegedly put pressure on the learned counsel for the petitioners/plaintiffs to decide the case on special oath and also procure signature of Ch. Akhtar Ali, Advocate on various papers which was done under duress. Learned counsel for the petitioners, however, vehemently contended that the case should have been decided on merits and not with reference to irrelevant matters.

5. Conversely learned counsel for the respondents/defendants argued that no specific form has been prescribed by law for recording offer and acceptance of the parties. He further argued that the learned Civil Judge has given a finding that the statement of Ch. Akhtar Ali was accepted by the respondents and contended that on acceptance of the offer by respondents/defendants the agreement in the nature of a binding contract came into existence and that cannot be unilaterally revoked. He further contended that administration of oath under the Oath Act being a special enactment and if at all the petitioner No. 1 was not allowed to resile from his statement no irregularity has been committed by the learned trial Court and the revisional Court was justified in dismissing the revision petition of the petitioners and in such‑like cases, no case for interference in exercise of Constitutional jurisdiction is made out.

6. 1 have heard learned counsel for the parties at length and have also gone through the record. The plea that the statement made by petitioner No. l was not binding on the other petitioners has no force for the simple reason that Ch. Akhtar Ali, Advocate who is also one of the petitioner has common interest with others. The order sheet reveals that the offer was voluntarily made which was accepted by the respondents/defendants. This being the position the offer when accepted mature into an agreement binding on the parties and the same is enforceable under law. It is also borne out from the record that petitioner No. 1, Ch. Akhtar Ali, Advocate was holding power of attorney (Vakalatnama) on behalf of other petitioners as is evident from the application, dated 8‑9‑1996, filed and signed by him. Even the revision petition before the District Judge was filed through Ch. Akhtar Ali. Advocate and the present writ petition is also filed through him, therefore the contention of learned counsel for the petitioners that the statement made by him before the learned trial Court was not binding on the other petitioners is devoid of any merit. I am also not prepare to accept the contention raised by learned counsel that Ch. Akhtar Ali, Advocate was forced to sign the statement as well as other papers for the reason that Ch. Akhtar Ali. Advocate appears to be counsel of sufficient standing and there is no material on record to suggest that the learned trial Court had any personal interest to exert such ? pressure upon petitioner No. l who was an Advocate. The next plea that the learned trial Court has failed to record separate statement of respondents/defendants containing the precise wording of the offer and acceptance is also of no significance. 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. The order, dated 5‑5‑1997 clearly shows that Ijaz Ahmad and Mst. Bano took oath on Holy Qur'an according to the offer made by Ch. Akhtar Ali, Advocate through his statement, dated 7‑9‑1996. Learned counsel for the petitioners has failed to point out that the offer made was not the same as was recorded by the learned trial Judge rather by submitting an application for permission to resile and deride the case on merit support the order recorded by the learned trial Court. This application was dismissed by a detailed order, dated 24‑10‑1996. The revision petition filed by the petitioners also met the same fate so it cannot be said that any coercion or pressure was made as against said Akhtar Ali petitioner and the offer was suffering from any legal defect and that statement of the petitioner was not properly recorded in the Court. During arguments learned counsel for the petitioners has pointed out that the learned trial Court had decided the matter in issue which he ceased to do so as the case was transferred to some other Court. Perusal of the record shows that the case was transferred to some other Court but on the application of the petitioners the transferee Court sent back record to the District Judge for its transfer to the learned transferor Court on the ground that partial arguments were already heard in the case, therefore, the contention that the relevant Court had no jurisdiction to adjudicate upon the matter has no force. In the present case as the parties have chosen their own procedure for resolving the dispute none of them can unilaterally seek annulment of the agreement and ask the Court to ignore the contract and decide the case in according with law and procedure as prescribed by the Code of Civil Procedure. The evidence as held in Muhammad Ali v. Major Muhammad Aslam and others 1988 CLC 7.18, 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. The 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. Reference may‑ F also be made to Mst Asifa Sultana v. Honest Traders PLD 1970 SC 331 and Jalal Din v. Chiragh Din PLD 1972 Kar. 622. The learned trial Court has specifically stated in its order that the said oath had been administered to the respondents. There is no reason to, disbelieve the finding recorded by the learned trial Court to this effect. It has also been held in Attiqullah v. Kafayatullah 1981 SCMR 162 that the party undertaking to be bound by evidence given by special oath by opposite party cannot. resile from it as it amounts to be a binding contract and unless it is found to be void or frustrated, the Court is not justified to permit petitioner to resile from his offer when it has also been accepted by the other side.

7. In the instant case, as already mentioned the offer was voluntarily made by the petitioner/plaintiff No. l which was accepted by the respondents/ defendants Nos. l and 2 as such the learned trial Court rightly disallowed the petitioner/plaintiff to resile from it and after administering the oath, according to the desire of the petitioners/plaintiffs and the revisional Court rightly upheld the order of the trial Court.

8. The petitioners have failed to point out any illegality, infirmity or jurisdictional defect in the order passed by both the Courts below. The finding recorded by the Courts below is eminently just and correct. This petition has no merit and the same is dismissed. No order as to costs.

H.B.T./A‑92/1, ??????????????????????????????????????????????????????????????????????????????????? Petition dismissed.