JAFFAR ALI vs MUHAMMAD TUFAIL

' On 17-4-1983 Jafar Ali petitioner filed suit for possession of house on the basis of ownership against Muhammad Tufail respondent in the Court of Senior Civil Judge, Gujranwala. The suit was resisted. Nine issues were framed. The parties led evidence. The trial Court decreed the suit cm 27- 2-1988. Feeling aggrieved thereby Muhammad Tufail respondent/defendant filed appeal before the learned District Judge, Gujranwala. On 9-9-1989, at the time of the hearing of the appeal, the learned counsel for the parties agreed that Muhammad Ameen Lambardar be summoned in the Court and the suit and the appeal both be decided according to the statement which he may make before the Court. On this, the learned District Judge passed following order:-- "Learned counsel for the parties under instructions from their clients agree as to the manner of the disposal of present appeal. They unanimously state that in supersession of the evidence already recorded Mr. Muhammad Amin Lumbardar of Majuchak, Tehsil and District Gujranwala, may be summoned as solitary witness of the parties and the appeal and suit decided on such statement of the witness who shall not be subjected to any cross-examination and whose statement shall be taken as a last word and the matter decided accordingly. The arrangement not being opposed to law, I approve it and direct that he be summoned as solitary witness of the parties for 15-10-1989."

' On 15-10-1989, Muhammad Ameen appeared before the learned Appellate Court, who made following order: {{URDU TEXT}} ' On the basis of the statement of Muhammad Ameen Lambardar reproduced above, the learned District Judge accepted the appeal and set aside the judgment and decree of the trial Court and dismissed the suit of the petitioner, hence this revision.

2. Learned counsel for the petitioner mainly submitted that since oath has been prescribed by the High Court in the year 1987, in pursuance of the newly-amended provision of the Oaths Act, therefore, the statement of Muhammad Ameen recorded on solemn affirmation was inadmissible and could not be made basis of the impugned judgment and decree. Learned counsel for the respondent is not in a position to controvert him.

3. I have considered the matter carefully. I feel persuaded to agree with the learned counsel for the petitioner. I find that the judgment and decree dated 15-10-1989 of the Appellate Court is sole based on the statement of Muhammad Ameen recorded by it on solemn affirmation on 15-10-1989.

Since not only the amendment had already been made in the relevant provisions of Oaths Act but oath had also been prescribed by the High Court, therefore, the learned District Judge could not have recorded the statement of Muhammad Ameen on solemn affirmation. There remains no doubt that the statement of Muhammad Ameen recorded by the learned District Judge on 15-10- 1987 is irrelevant and inadmissible and as such could not have been made basis of the impugned judgment and decree.

' Pursuant to the above discussion, the revision is accepted. The judgment and decree of the learned District Judge dated 15-10-1989 is set aside and the case is sent back to him for fresh decision of appeal in accordance with law after providing the parties opportunity of being heard, leaving the parties to bear their own costs.