MUHAMMAD SHAHBAZ and another vs GlIULAM RASOOL

ORDER

' Briefly stated the facts of this case are as follows:- ' Claiming breach of agreement dated 30-10-1980, Ghulam Rasool plaintiff-respondent on 23-11- 1982, filed a suit for recovery of Rs.20,000 against Mohammad Shahbaz and Niamat Ali with averments that under the said agreement he irrigated four acres of land belonging to them from his tube-well but in return they did not water his four Acres of land from their tube-well. The defendants-petitioners put in appearance before learned Civil Judge, Narowal. They, in their written statement admitted the execution of agreement dated 30-10-1980. It was pleaded that they fulfilled their part of the contract but it was Ghulam Rasool plaintiff himself who was not watering their four acres of land from his tube-well. It was pointed out that they had filed a suit for recovery of Rs.20,000 against Ghulam Rasool which was decreed ex parte. The dismissal of suit was, therefore, prayed for.

' On 12-10-1985, the learned Civil Judge, under Article 163 Qanune-Shahadat 1984 (P.O. No. 10 of 1984) recorded joint statement of Mohammad Shahbaz and Niamat Ali defendants on Holy Qura'n.

They both admitted the execution of the agreement. They further stated that it was Ghulam Rasool plaintiff who committed breach of agreement. On 18-1-1986, the learned Civil Judge recorded the statement of Ghulam Rasool plaintiff on Holy Book who stated that the contention of defendants was not correct, they backed out from agreement and that his suit was genuine. In view of the statements by the parties on Holy Book the learned Civil Judge 1st Class on 18-1-1986, recorded the following order: - "The plaintiff took special oath on Holy Quran in favour of his plaint. The defendants denied the contents of plaint on Holy Quran. In these circumstances I proceed under Article 163 of. Qanun-e- Shahadat 1984 and accordingly I dismiss plaintiffs' suit. No order as to costs. The file be consigned in record room after its completion."

' Ghulam Rasool plaintiff challenged this order before learned Additional District Judge, Sialkot (camp at Narowal) who vide impugned judgment dated 9-10-1986, accepted his appeal and remanded the suit to learned Civil Judge for decision on merits. Hence this revision.

2. In support of this revision learned counsel contended firstly, that in view of the oath of defendants' the suit of Ghulam Rasool could not proceed, and secondly, that the appeal of Ghulam Rasool was barred by limitation and should, therefore, have been dismissed. No other point was urged on behalf of the petitioners.

3. I have carefully gone through the evidence on record. The facts in this case are not disputed. The execution of agreement dated 30-10-1980 is admitted by both the parties. It was stated on oath by the defendants that the plaintiff had violated the terms of agreement. On the other hand the plaintiff stated on oath that the breach of the agreement was committed by the defendants. In view of the oath on Holy Book by both the parties the dispute could only have been resolved by recording evidence of the parties. The relevant provision of Article 163, Qanun-e-Shahadat 1984, is reproduced below:- "163. (1) When the plaintiff takes oath in support of his claim, the Court shall, on the application of the plaintiff, call upon the defendant to deny the claim on oath.

(2) The Court may pass such orders as to costs and other matters as it may deem fit.

(3) Nothing in this Article applies to laws relating to the enforcement of Hudood or other criminal cases."

' An examination of Article 163 would show that it does not contemplate the dismissal or decree of a suit in a case where both the parties support their claim on oath under this Article. Sub-clause (2) of this Article provides that Court may pass any order as it may think fit regarding the costs and other matters. It was held in Nazir Ahmad v. District Judge, Leiah PLD 1986 Lah. 137, "if the Legislature had intended that in case of defendant's failure to deny the plaintiff's claim on oath, the plaintiff's suit is to be decreed or some other penal consequence is to follow, it could have made its intention manifest by making a clear provision to that effect. In the absence of any specific provision laying down the penal consequence of the defendant's non-appearance to deny the claim on oath, learned trial Court acted rightly in proceeding to adjourn the case for the petitioner's evidence." In the case in hand, as stated above, both the parties in the suit supported their case on oath on Holy Book. It, therefore, was necessary for the trial Court to put the parties on issues and ask them to lead evidence in support of their respective claim. This Article does not, in any way, preclude a Court from recording evidence of the parties in spite of the oath by both the parties or either of the parties. The learned trial Judge did not frame issues nor any evidence on behalf of the parties was recorded. As such, the impugned remand order is unexceptionable.

4. The argument that the appeal of Ghulam Rasool before learned Additional District Judge, Sialkot was hopelessly barred by limitation is without any merits. The learned Civil Judge dismissed the suit of Ghulam Rasool vide judgment and decree dated 18-1-1986. An application for obtaining certified copies of judgment and decree was filed on 19-1-1986. The copies were prepared on 25-1- 1986 and delivered to Ghulam Rasool on 23-6-1986. The appeal was filed on 6-7-1986. It is conceded by the learned counsel that if the time spent in obtaining the copies is reckoned till the receipt of copies on 23-6-1986, then the appeal before the learned Additional District Judge was within time. There is no evidence or circumstance to show that the copying agency fixed any date for delivery of copies to Ghulam Rasool. Copying department being an official agency could not be considered an agent of the person applying for copies. The copying agency in the instant case did not inform Ghulam Rasool to take delivery of the copies on a particular date. "It will be unreasonable to expect an applicant to call for a copy morning and evening every day so as to ascertain whether it is ready." It was held in Gul Muhammad v. Allah Ditta PLD 1960 Lah. 443, "the time 'requisite' for obtaining copies which can be excluded under section 12, Limitation Act, is the time which is taken between the date of application and the date when the copies are ready, but it can be further extended if further delay takes place by reason of the carelessness of the office in giving wrong information to the applicant on which the copies would be ready, or in giving no information at all." It the instant case, there is nothing to indicate that the copying agency ever sent an information to Ghulam Rasool about preparation of the copies with a direction to collect the same. In view of these circumstances, it cannot be said that the appeal by Ghulam Rasool before learned Additional District Judge was barred by limitation.

5. The learned counsel for the petitioners was not able to point out any material irregularity in the impugned judgment. I, therefore, find no merits in this revision which is accordingly dismissed in limine.