MUHAMMAD YOUSAF Versus BULANDA

SH. RIAL AHMED, J .---This appeal through leave of this Court is lirected against the judgment and order, dated 24-10-1994 delivered by a Single judge of the Lahore High Court at Multan whereby revision petition filed by the petitioner under section, 115, C.P.C. was dismissed.

2. The background of the litigation between the parties is that on 8-b-1985 Bulanda respondent instituted a civil suit against the appellant, real nephew for a declaration that the sale-deed, dated 18-11-1984, in respect of land measuring 38 Kanals, 2 Marlas situated in revenue estate of Jawind Singhwala, Tehsil Kabirwala, District Khanewal in favour of the appellant was not binding on the respondent/plaintiff because the transaction was sham, fraudulent and the execution was made through misrepresentation and the plaintiff/respondent had not signed the said deed. The suit was resisted and the written statement was filed, but before further proceeding could be taken, on 22-10-1985, the counsel for the plaintiff/respondent volunteered that proceeding under Article 163 of the Qanun-e-Shahadat Order, 1984 (hereinafter called the Order) be taken and that the plaintiff/respondent was, ready to take oath on the Holy Qur'an. On the same day, the plaintiff took oath to the effect that the land was given to the appellant on lease and that the plaintiff never received any consideration nor had intended to sell this land. Upon this the appellant was directed to take oath in rebuttal, but he declined and the following statement was made by him:--

On the same day, i.e. 22-10-1985, the learned Civil Judge decreed the suit on the basis of the legal effect of Article 163(2) of the Order. The appellant then filed an appeal, but the same was dismissed on 6-2-1986 by the District Judge, Khanewal. The learned District Judge held that the above reproduce statement made by the appellant amounted to conceding the claim of the plaintiff/respondent and, therefore, now he cannot turn around and resile from this statement. The District Judge also refused to accept the appellant's plea that he had never made the above statement and observed that the said statement was not only signed by the appellant, but his counsel had also signed the same and, therefore, the learned District Judge refused to disbelieve the judicial record.

3. It was vehemently argued before us that Article 163(2) of the Order had no applicability and the case could not have been decided on the basis thereof. We are not inclined to agree with the contention so raised because as held by the Courts below that apart from the question of interpretation of Article 163(2) of the order the appellant had in fact conceded the claim of the respondent on the Holy Qnr'an. The findings arrived at by the learned District Judge are in consonance with law and the claim of the respondent had been conceded by the appellant and it amounted to a consent decree and, thus, the appellant now cannot be allowed to turn around so as to challenge the consent decree. Of course, there would have been weight if the appellant had not stated that whatever the respondent stated on Holy Qur'an was correct. If without making such statement, the appellant had refused to take oath in rebuttal, then of course no decree could have been passed under Article 163(2) of the Order because the said provision of law does not provide any penalty in the event of the opposite party's refusal to take oath in rebuttal. In the circumstances of this case, the appellant admitted correctness of the statement of the respondent on Holy Qur'an, which in fact, has changed the entire complexion of the case and, thus, it amounted to a consent decree, which was rightly passed in the background of the facts of this case. In this view of the matter, we do not find any merit in this appeal and the same is hereby dismissed.

H.B.T./M-326/S Appeal dismissed.