NAZIR HUSSAIN Versus WARRIS

On 12-5-1993 the respondents filed a suit against the petitioners. In the plaint it was stated that Lal Din the father of the petitioners Nos. l and 2 was allotted land measuring 6 Kanals, 9 Marlas detailed in the plaint. Out of this land he agreed to sell 5 Kanals, 2 Marlas to the respondent by means of an oral agreement and it was settled that the said Lal Din will transfer the land to the respondent upon conferment of permanent rights. It was further stated that the price was settled as Rs.5,000. It was paid to the said Lal Din and possession was delivered. Reference was also made to another agreement for sale of remaining land with one Muhammad Ilyas who has raised construction on the same. It was then stated that the petitioners Nos.1 and 2 have proceeded to sell the land to petitioner No.3 vide Mutation No.1029 attested on 11-3-1992. With these averments a decree for specific performance of the said oral agreement with the deceased father of petitioners Nos. l and 2 was prayed. The petitioners filed a joint written statement denying the said allegations in the plaint. The learned trial Court framed issues arising out of the said pleadings on 28-7-1993. The case was being adjourned for recording evidence of the respondent when on 25-7-1995 the respondent, his learned counsel, petitioners No. l and 3 and the learned counsel for the petitioners got recorded the following statement:--

After recording the said statement, the learned trial Court' deputed said learned Advocate as a Local Commissioner to take the said oath. The Local Commissioner filed his report in Court on 28-7-1995. After the receipt of the said report on 30-7-1995 the respondent filed an application that his suit be decreed as the petitioner No.1 has failed to take the requisite oath. On 8-11-1995 yet another application was filed. Ultimately, the learned trial Court decreed the suit vide judgment and decree dated 16-1-1996'iolding that the respondent has failed to take the oath. A first appeal filed by the petitioner was dismissed by the learned District Judge, Attock, on 24-5-1997.

2. Learned counsel for the petitioners contends that the petitioner No.1 was always ready and willing to take the oath as proposed but the learned Local Commissioner did not conduct the proceedings properly and this fact was omitted from consideration by both the learned Courts below and a case for interference under section 115 C.P.C. stands made out. Learned counsel for the respondent, on the other hand, contends that this was a case of decision of the suit in a mode agreed by the parties and since the petitioners committed the breach, the impugned judgments and decree are not to be interfered.

3. I have gone through the copies of the records, I have already reproduced above the relevant proceedings which took place in this case. Now the statement made by the parties and their learned counsel has already been reproduced by me above. According to this statement, the petitioner No. l was required to state on the oath of the Holy Quran "(1) that his father had not agreed to sell the land to the respondent: (ii) that his father had not received the price of the land; and (iii) that his father had not delivered possession to the respondent under the sale." Now the perusal of the report of the Local Commissioner available at pages 44 to 48 of this paper book shows that he went to the spot on 28-7-1995. He arrived at Jamia Mosque, Qutbal, at 2.35 p.m., as Nazir Hussain petitioner was to take the oath inside the Mosque. Now in his report the learned Local Commissioner states as follows regarding the proposed oath:--

It will be noted that the said 3rd portion of the proposed oath has been omitted by the learned Local Commissioner. Now at page 47 the Local Commissioner recorded the statement of Muhammad Waris respondent as follows:--

It was thereafter that the following statement of Nazir Hussain petitioner I No. l was recorded:--

4. Now it will be seen that the learned Local Commissioner for all purposes proceeded to amend not only the said statement but also the very order of the Court. To my mind this was without lawful authority. Even if the Local Commissioner had the jurisdiction then the agreement stood amended and the only term was that in case Nazir Hussain makes the said statement then the respondent will withdraw the suit and nothing was provided or stipulated as to what would happen if the oath is not taken.

5. It is but obvious that both the learned Courts below completely ignored the said significant aspect of the case. Be that as it may, to my mind the very proceedings and consequently the impugned judgments decreeing the suit of the respondent for failure of petitioner No.1 to take the proposed oath is wholly without jurisdiction. I draw support for the said conclusion from a judgment, of this Court in the case of Inayat Ali and others v. Muhammad Sultan (1.988 MLD 811). I deem it proper to state some facts of the said reported case. In a pre-emption suit an offer was made by the vendee-defendant that in case the plaintiff took an oath on the Holy Quran that he did not ask the vendee to purchase the land and further that he did not write to him to purchase it, his suit may be decreed and in case he declines to take such an oath it may be dismissed: The plaintiff accepted the offer and agreed to take the oath but later he refused to take the proposed oath. The suit was dismissed. The first appeal was allowed by the learned District Judge and the dismissal was set aside. Mr. Justice Muhammad Afzal Lone (as his Lordship then was) observed as follows at page 913 of the report:------

"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 clearly 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 to Moyan v. Pathukutti and others I.L.R. XXXI Mad. 1, upon its fact is fully applicable to this case and the view of the law I have taken, falls in line 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."

Respectfully following the said judgment, I do hold that the suit of the respondent could not have been decreed for the refusal or failure of the petitioner No. l to take the oath proposed before the Local Commissioner or for that matter before the , learned trial Court. The impugned judgments and decrees are, therefore, found to be without lawful authority. The civil revision is allowed.

Both the judgments and decrees of the learned Courts below are set aside. The result would be that the suit filed by the respondent shall be deemed to be pending in the Court of learned Senior Civil Judge, Attock, where the parties shall appear on 15-10-2003. The learned Senior Civil Judge shall requisition the records of the suit and proceed further from the stage where the suit was i.e. the recording of evidence of the respondent-plaintiff. The suit shall be decided after recording of evidence of the parties on its merits. No orders as to costs.

6. A copy of this judgment be immediately remitted to the learned Senior Civil Judge, Attock.

S.A.K./N-355/L Case remanded.