MUHAMMAD MANSHA and 7 others vs ABDUL SATTAR and 4 others

1. ' WALI MUHAMMAD KHAN, J---Muhammad Mansha and others, Petitioners herein, call in question the judgment dated 10-2-1993 passed by a learned Single Judge of the Lahore High Court, Bahawalpur Bench, whereby R.S.A. No,963-71/LHR filed by them against the concurrent finding of the trial Court dated 29-9-1970 upheld by the District Judge vide judgment dated 7-9-1971, was dismissed.

2. ' We have heard Ch. Khurshid Ahmad, Advocate, for the petitioners; Malik Abdul Majeed Khan, Advocate, for the respondents; and have perused the record of the case.

3. ' There is no dispute between the parties that in Suit No, 239 of 1970 filed by Shahzada alias Sajjada, predecessor-in-interest of the petitioners herein, against Abdul Sattar and others, defendants /respondents herein, the plaintiff made an offer on 16-7-1970 that if Ahmad Din alias Ahmoo son of Sakhoo takes an oath on the Holy Qur'an that the entire sale consideration of Rs,20,000 has been deposited by the defendants then his suit may be dismissed, otherwise the suit may be decreed, which was accepted by Abdul Sattar defendant on the same date and 8-9-1970 was fixed in the case for administering the oath to the said Ahmad Din. However, before the oath could be administered, the plaintiff Shahzada submitted an application on 7-9-1970 resiling from the offer, which was resisted by the defendants/respondents. On 29-9-1970, Ahmad Din took the desired oath on the Holy Qur'an and the learned Court, vide judgment dated 29-94970, dismissed the suit of the plaintiff. The appeal filed against it was dismissed by the District Judge on 7-9-1971 and so was the R.S.A. Before the High Court.

4. ' The learned counsel for the petitioners submitted that the offer had been withdrawn before the actual taking of the oath by Ahmad Din, therefore, the trial Court was not justified to act upon the offer made by the plaintiff. He cited the judgment of this Court in case Muhammad Akbar v.

5. Muhammad Aslam (PLD 1970 Supreme Court 241). We have gone through the cited judgment but are of the view that the same is distinguishable. However, in a later judgment of this Court in case Attiqullah v. Kafayatullah (1981 SCM R 162) in which the judgment of Muhammad Akbar's case, cited above, was also referred and considered and it was held that party undertaking to be bound by the evidence given on special oath by the opposite-party cannot resile from it as it amounts to a binding contract and unless it is found to be void or frustrated, the Court is not justified to permit the petitioner to resile from his offer when it has already been accepted by the opposite side. In the case in hand too, the offer was voluntarily made by the plaintiff which was accepted there and then by the defendant and, as such, the trial Court A rightly disallowed the plaintiff to resile from it and after administering the oath according to the desire of the plaintiff, dismissed the suit of the plaintiff and the appellate Court as well as the High Court rightly concurred with it.

6. ' There is no substance in the instant petition, the same is dismissed and leave to appeal is refused.