MUHAMMAD KHAN and 8 others vs MUHAMMAD IQBAL and 6 others
This revision petition arises from a suit for declaration regarding land ownership, which was initially decreed in favour of the petitioners. The appellate court subsequently set aside this decree, remanding the case solely because the trial court failed to administer the specific oath prescribed by the High Court under the Oaths Act, 1873. The core legal question before the High Court was whether the failure to administer a prescribed oath constitutes a fatal irregularity that vitiates judicial proceedings. The High Court, relying on Section 13 of the Oaths Act, 1873, held that an omission to take an oath or an irregularity in the form of an oath does not invalidate proceedings or render evidence inadmissible. The Court affirmed that such procedural lapses are curable irregularities rather than fatal flaws. Consequently, the High Court set aside the appellate court's judgment, ruling that the trial court's decision should not have been invalidated on this ground, and remanded the matter to the appellate court for a fresh decision on the merits.
- Does the failure to administer a prescribed oath under the Oaths Act, 1873, invalidate judicial proceedings?
- Is an irregularity in the form of an oath administered to a witness a curable defect under Section 13 of the Oaths Act, 1873?
- Can a judgment be set aside solely on the ground that evidence was not recorded on the specific oath prescribed by the High Court?
- Section 115, Code of Civil Procedure 1908
- Section 7, Oaths Act 1873
- Section 13, Oaths Act 1873
This petition under section 115 of the Code of Civil Procedure, 1908, arises out of a suit for declaration filed by the petitioners against the respondents to the effect of ownership of land measuring 390 Kanals. The suit was decreed after contest by the trial Court on 6-4-1991 in favour of the petitioners, The decree was challenged by the respondents by filing an appeal which was accepted on the sole ground that the evidence of the witnesses was not recorded after administering the new Oath prescribed by this Court in pursuance to an amendment of Oaths Act, 1873. Consequently, the case was remanded to the trial Court for decision afresh after recording the evidence of the witnesses on prescribed Oath.
2. Learned counsel for the petitioner has contended that the mere fact that Oath had not been administered in accordance with the fresh Oath prescribed by the High Court under section 7 of the Oaths Act, was not sufficient in itself to render the judgment and decree passed in the proceedings as illegal, at the most it was an irregularity which can be procured by section 13 of the Oaths Act, 1873.
3. This contention of the learned counsel has force and is supported by section 13 of the Oaths Act, which provides that no omission to take Oath or make any affirmation and no irregularity whatever in the form of Oath administered shall invalidate the proceedings or render inadmissible any evidence, whatever in or in respect of which such omission, substitution or irregularity took place, or shall affect the obligation of a witness to state the truth. The provision in question was considered by the Supreme Court in the case of Sajjad Ahmad and another v. The State 1992 SCMR 408, wherein it was ruled that the evidence of the prosecution witnesses which was not recorded by the learned trial Court on Oath, is not a fatal flaw which may vitiate the whole trial and, as such, the plea was repelled. It was further observed that irregularity was certainly curable under section 13 of the Oaths Act, 1873 as held by the Federal Shariat Court in the case of Zeb-ul-Haram v. The State PLD 1991 FSC 1. It is, thus, clear that the Appellate Court acted with material irregularity while holding that since the evidence was not recorded on fresh Oath prescribed by the Oaths Act, the trial stood vitiated. In view of the above discussion, this revision is accepted, the judgment and decree passed by the learned Additional District Judge is set aside and the case is remanded to him for decision afresh.
As no one has appeared for the respondents, no order as to costs.