INAYAT ALI Versus MUHAMMAD SULTAN

Sultan Khan, respondent brought a pre‑emption suit against the appellants and four others who have not been impleaded as party to this appeal.

2. The latter confessed the judgment. So far as the appellants are concerned, on 11‑2‑1976 while the suit was still at the initial stage, one of them, namely, Inayatullah and their counsel made a joint statement to the effect that in case the plaintiff/respondent took an oath on the Holy Qura'n that he did not ask the appellants to purchase the suit land and further that he did not write to them to purchase it, his suit may be decreed and in case he declines to take such an oath it may be dismissed. Simultaneously, the respondent accepted this offer and agreed to take oath. However, in the course of same proceedings when the respondent was called upon to take the proposed oath, he refused. The learned Civil Judge, dismissed the suit against the appellants and passed a decree in favour of the respondent to the extent of the share of the co‑defendant.

3. The respondent challenged this dismissal through an appeal which, was allowed by the learned District Judge and the decree of the trial Court set aside. Though not so stated in the first appellate Court's order, impugned through this F.A.O., yet as a result of the setting aside of its decree, the suit stood remanded to the learned trial Court. The learned District Judge was of the view that the respondent's refusal to take oath fell within the ambit of section 12 of the Oaths Ad, 1873, and the only course open to the learned trial Court was to record the proceedings as to the nature of the oath; the respondent's refusal to take the oath together with any reason which he may have assigned for such refusal. In the opinion of the learned District Judge, the respondent's refusal in law did not f warrant dismissal of his suit.

4. I have heard the learned counsel for the parties and examined the record. It is to be seen that before the learned first appellate Court, a number of precedents were cited on behalf of the appellants. However, the learned District Judge maintained that those rulings were not applicable to the instant case. The learned counsel for the appellants has vehemently criticised the impugned order and contended that the learned District Judge completely misapplied the law. In his submission as all the rulings placed before the learned first appellate Court, by them were attracted to the case, the appeal should have been dismissed. It was argued that the appellants made an offer to the respondent to take the proposed oath which was accepted by him. Thus a valid contract came into existence between the parties and the respondent could not have been permitted to resile from the same. In support of this submission, the learned counsel for the appellants heavily relied upon Saleem Ahmad v. Khushi Muhammad 1974 S C M R 224.

5. There is no illegality in the impugned order and this appeal has got to be dismissed. The argument of the appellants' learned counsel rests on misconception of the correct position in law. The question of resiling from the contract could have arisen in a situation if the respondent was prepared to take oath and the appellants sought to be relieved of their commitment. Such was situation before the Supreme Court in the judgment cited at Bar. In that case the defendant made a statement to be bound by the oath of the plaintiff's brother. The latter agreed to make the proposed oath which later on was actually administered to' him. However, before the administration of the oath the defendant moved the Court saying that the plaintiff's brother was habitual liar and that the oath be administered to two other persons named in his application. It was disallowed by the trial Court. The High Court did not intervene in revision. The defendant/petitioner's petition for special leave to appeal also failed. In dismissing his petition, the Supreme Court observed:‑

"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. Indeed, even the attempt to resile was only a half‑hearted attempt, for even after filing the application the petitioner himself offered the Holy Our'an to Wali Muhammad and the latter took the oath."

This precedent has no bearing on the facts of this appeal. In the instant case, the occasion to resile did not arise. What happened was, that the plaintiff agreed to take the oath or in other words in terms of section 8 of the Oaths Act, offered to give evidence. It seems to me that this section covers both the eventualities when the offer to make the oath emanates from a party or it agrees to make the oath in acceptance of the offer given by the other party. However, when the Court proceeded to administer the oaths as required by section 10 the plaintiff refused to make the same. This refusal is dearly covered by section 12 of the Act which ordains that after a party or a witness refuses to make the oath, he shall not be compelled to make it, but Court shall record, as part of the proceedings, the nature of the oath or affirmation proposed, the facts that he was asked whether he would make it, and that he refused it, together with any reason which he may assign for his refusal.

The judgment in Moyan v. Pathukutti end others I L R XXXI Mad. 1, upon its facts is fully applicable to this case and the view of the law I have taken, falls in fine with the enunciation of section 12 made therein. The learned trial Court acted illegally in dismissing the suit. The order of the learned District Judge is in conformity with law.

This appeal is, therefore, dismissed with costs. The case stands remanded to the trial Court for its trial on merits to the extent of the appellants' share in the suit land after complying with the requirement of section 12 ibid. This remand would not enure to the benefit of the co‑vendees.

M.Y.H./2736/L ??????????????????????????????????????????????????????????????????????????????????? Appeal dismissed.