ALI AHMAD Versus MUSNHI
MAULVI ANWARUL HAQ, J.‑‑‑ The respondents are paternal uncles of the appellant. On 2‑5‑1994 the appellant filed a suit against the respondents. In the plaint, it was stated that the suit‑land mentioned in paras. Nos.1 and 2 of the plaint was respectively owned by respondents Nos. 1 and 2; that respondent No. 1 is unmarried while respondent No. 2 is issueless and after the death of his wife took up his residence with his brother, respondent No. 1; that in March, 1993 respondent No. 1 has appointed Dil Muhammad son of Sardar as an attorney; that said Dil Muhammad and respondent No.2 entered into an agreement to sell the suit land to the appellant for a consideration of Rs.400,000; that this was an oral agreement; that a sum of Rs.5,000 was paid to the said attorney and respondent No.2 as earnest money, that Munir Hussain son of l3hola, a paternal uncle of the appellant, when came to know about the said transaction persuaded the respondents to take up residence with him; that in June, 1993 the appellant paid another .sum of Rs.20,000 to the respondents, thus making a total of Rs.25,000 as earnest money, that the said attorney of respondent No.2 informed Bulanda, the tenant of the suit land, of the said agreement and directed him to attorn to the appellant; that now the said Munir Hussain has got a general power of attorney from the respondents and has prevailed upon them not to perform their part of the contract, rather is trying to sell the suit land to some other parties. With these averments a decree for specific performance was sought.
2. The respondents filed a written statement on 19‑9‑1994 through the said Munir Hussain, General Attorney. In the said written statement the said agreement or the receipt of money was denied. It was, however, admitted that Dil Muhammad was the attorney of respondent No.1 but has joined hands with the appellant. It was also alleged that the said Bulanda, the tenant, is brother of the respondents and he is also in connivance with the appellant. With these averments, a prayer was made for dismissal of the suit.
3. On 22‑9‑1994, the appellant filed an application under Article 163 of the Qanun‑e‑Shahadat Order, 1984. In this application, it was stated that the appellant is ready to take oath on the Holy. Qur'an in support of his claim and he should be allowed to take the said oath and the respondents be called upon to take oath in rebuttal. We find that the following statement was recorded and apparently it was made by the learned counsel for the appellant:‑‑
The case was adjourned to 28‑9‑1994 with the direction that the respondents should appear in person. On the same date Munir Hussain, attorney of the respondents, gave a statement that Muhammad Ali, Arif Hussain and Ali Ahmad have threatened the respondents that in case they came to attend the Court, they will be abducted and murdered. On 28‑9‑1994 the presence of the learned counsel for the parties was marked and the copy of the application was delivered to the respondents. On 3‑10‑1994 the respondents filed an application stating that they do not want to take oath on Holy Qur'an and the case be decided on merits. On the same day the statement of the appellant was recorded, who undertook that in case the respondent come to the Court, no harm will come to them and in case some harm comes, it will be the responsibility of the appellant. Thereafter Munir Hussain made a statement that he is a constable in Police Line No.1, Multan and that he will bring the respondents at 11‑00 a.m. on 5‑10‑1994. On 5‑10‑1994, statement of Ali Ahmad was recorded on oath as well as solemn affirmation. He made a detailed statement in line with the version contained in the plaint. The statement was concluded as follows:
Thereafter, the statement of respondents was recorded to the effect that they are ready to take an oath on Holy Qur'an. Their thumb‑impressions were obtained on the said statement. Thereafter the joint statement of the respondents was recorded on Holy Qur'an to the effect that they had not entered into an agreement with the appellant and that the suit is false. The learned trial Court then proceeded to pass the impugned order and decree dismissing the suit on 5‑10‑1994.
4. Learned counsel for the appellant contends that the learned Trial Court has erred both in law as well as in fact while dismissing the suit.
According to the learned counsel this was a case of an oath under Art. 163 of Qanun‑e‑Shahadat Order, 1984 and the suit could not have been dismissed for the reason that both the parties had taken oath and this being so the learned trial Court was bound to call upon the appellant to prove his case by producing evidence. He relies on the following judgments in the cases of:‑‑
(i) Khan Sher v. Mst. Kabla and another (PLD 1988 Peshawar 65)_
(ii) Bhore Khan v. Noor Din PLD 1993 Peshawar 72).
5. On the other hand, learned counsel for the respondents relies upon the case of Muhammad Yousaf v. Bulanda through Legal Heirs (1999 SCMR 2115) to support the impugned order and decree.
6. We have gone through the trial Court's record with the assistance of the learned counsel for the parties. The proceedings that took place before the learned trial Court have been reproduced above in detail. As stated by us, the process started on 22‑9‑1994 when the said application under Art. 163 of Qanun‑e‑Shahadat Order. 1984 was filed. Somehow or the other, the learned counsel for the appellant made the statement, which gives the impression that it was a case of special oath in terms of Oaths Act, 1873 as the learned counsel stated that in case the respondents negate the case of the appellant on Holy Qur'an, the suit be dismissed. It also appears that the attorney was reluctant and took the plea that the respondents have been threatened with abduction and murder. Be that as it may, on 28‑9‑1994 the copy of the application was delivered to the respondents, who were called upon to file a reply. We are of the opinion that so far as the matter of special oath, contained in the statement of the learned counsel for the appellant, is concerned, apart from the fact that it was wholly inconsistent with the application filed by the appellant, the matter came to an end on the same very date i.e. 22‑9‑1994 and that is why on 28‑9‑1994 the copy of the application was delivered to the respondents. We have already noted above that the respondents have prayed for the dismissal of the application by stating that they are not prepared to take oath. On 5‑10‑1994 the appellant stated his case in detail on oath as well as solemn affirmation and made a prayer that in case the respondents deny his case as stated by him on the oath of Holy Qur'an, the suit be decided in accordance with law. Now the respondents in their joint statement proceeded to state that they did not enter into an agreement with the appellant and that the suit is false. To our mind, this statement is not the one, which was contemplated in ire prayer made in the application or in the statement made by the appellant on 5‑10‑1994. It may be noted that the said statement starts with the mention of the fact that Dil Muhammad was the attorney of respondent Munshi and that he alongwith respondent No.2 namely Mubarak received Rs.5,000 as earnest money. Thereafter the other details follow point to point. In our opinion, the said statement had to be put .to the respondents as stated above that they were to be called upon to deny the same on the oath of Holy Qur'an. This was not done.
7. We also note with some regrets that in the impugned order, dated 5‑10‑1994, the learned trial Court has mentioned that Ali Ahmad offered the respondents to negate his version (wrongly mentioned in the impugned order as version of the defendant) on Holy Qur'an and in case they denied the version the suit be dismissed. There is nothing to the said effect in the statement dated 5‑10‑1994 wherein the appellant had stated that his suit be decided in accordance with law.
8. Now the learned trial Court apparently made no effort to consider as to how the suit is to be decided and which is the law according to which it is to be decided. To our mind, the law of course is Article 163 of Qanun‑e‑Shahadat Order, 1984. For all purposes, this was a case of general oath and not of special oath and both the parties have taken the oath, "even if it be assumed that the oath was taken by the respondents in complete accord with the offer of the appellant. This being so the learned trial Court was bound to call upon the appellants to state as to whether he has some other evidence to offer in support of his case and it would be only upon a statement that no other evidence is available, then the suit could have been dismissed treating it to be a case of oath against oath.
9. We do find that the judgments from the learned Peshawar High Court support the contention of the learned counsel for the appellant. Inasmuch as the consequences of refusal to take oath by the defendant or taking of oath by him would not necessarily result in the decree or dismissal of the suit and that the case will have to be considered in the given circumstances. We have also examined the judgment in the case of Muhammad Yousaf (supra) being relied upon by the learned counsel for the respondents. However, we find that in the said case what happened was that the plaintiff in the suit had taken oath on Holy Qur'an. The defendant categorically stated that the plaintiff has made a correct statement on oath and that he is not ready to take oath in rebuttal. It was in the said circumstances that the suit was decreed and the judgment was upheld by the Hon'ble Supreme Court of Pakistan. In the present case both the parties took oath and we do not find denial of the entire version as stated in the statement of the appellant by the respondents. Particularly in the background that it was a stated case of the appellant that on behalf of one of the respondents his attorney has conducted the proceedings of sale agreement and received the earnest money and there is no denial in the written statement that the said person was not the attorney of the said respondent.
10. For all what has been discussed above, we find that there has been failure of justice and that the appellant had not been given a chance to prove his case by producing other evidence. This R.F.A. is accordingly allowed. The impugned order and decree of the learned trial Court is set aside. The result would be that the suit filed by the appellant shall be deemed to be pending before the learned trial Court. The record shall be remitted back immediately. The learned trial Court shall summon the parties and proceed to decide the suit after framing of issues and first giving an opportunity to the appellant to lead evidence and then to the respondents to rebut the same. No order as to costs.
S.A.K./A‑518/L Case remanded.