KHAWAJA MUHAMMAD SAEED, J.:--This appeal, with leave of the Court, is directed against the judgment of the High Court dated 6-5-2003, whereby the writ petition filed by the appellants, was dismissed.
2. Admitted facts of the case are that the present appellant and pro forma respondents Nos.6 to 12 filed writ petition in the High. Court challenging the orders of respondents Nos.l to 4 through Malik Muhammad Yousaf and Imtiaz Ahmed, Advocates. On 24-4-2002, the .Appellants engaged Ch. Muhammad Naseem and Raja Muhammad Matloob, Advocates. On 5-5-2003, only Malik Muhammad Yousaf appeared on their behalf in the Court and argued the case whereas on behalf of contesting respondent, Muhammad Zafar, Sardar Rehmatullah, Advocate appeared before the Court. The arguments were heard. Before the conclusion of the arguments, appellant No.1 and Malik Muhammad Yousaf, the learned counsel for the appellants, stated at the bar that if contesting respondent Muhammad Zafar shall state on Oath that he has not committed any forgery for securing the allotment of disputed shop, the petitioners, therein, will not press their writ petition. On the next day the contesting respondent, Muhammad Zafar, appeared in the Court and made a statement on Oath as was suggested by one of the appellants Muhammad Mushtaq and Malik Muhammad Yousaf, the learned counsel for the appellants. The statement was not recorded but according to the judgment under appeal, the contesting respondent stated on Oath that he committed no forgery for obtaining the allotment of shop. The High Court in view of the statement made by Muhammad Zafar dismissed the writ petition vide order under challenge dated 6-5-2003.
Hence this appeal with leave of the Court.
3. Raja Muhammad Siddique, the learned counsel for the appellants, argued that appellants had engaged Ch. Muhammad Naseem and Raja Muhammad Matloob Advocates on 24-4-2002 to conduct the writ petition in the High Court. This shows that these Advocates had superseded Muhammad Yousaf Advocate who was initially appointed by the appellants to conduct their case in the High Court. In view of this fact Malik Muhammad Yousaf Advocke was not legally justified to make the offer on behalf of the appellants for decision of the case onOath. He further argued that no such authority was available with Malik Muhammad Yousaf Advocate to get the dispute resolved on Oath, therefore, the offer made by him was in excess of the powers given to him by the appellants. He further argued that the High Court has not conducted proceedings in accordance with the provisions of the Oaths Act. Even the judgment of this Court titled Abdul Hameed v.
Muhammad Najeeb (Civil Appeal No.37 of 2000 decided by this Court on 23-11-2000), was not followed while passing order under appeal before this Court, therefore, the impugned judgment of the High Court being bad in law is liable to be dismissed.
4. On the other hand, Mr. Abdul Majeed Mallick, the learned counsel for the respondents, argued that offer was made by the learned counsel for appellants, Malik Muhammad Yousaf, in the High Court whose power of attorney was neither cancelled nor withdrawn. According to him, the other two Advocates who were engaged on 24-4-2002 did not appear in the Court when case was called for hearing, therefore, the objection raised by appellants about the competency of Malik Muhammad Yousaf Advocate to make an offer on behalf of the appellants is without any justification; particularly when the authority of Malik Muhammad Yousaf was neither objected on 5-5-2003, the date when case was argued and offer was made, nor on 6-5-2003 when Muhammad Zafar the contesting respondent made the statement on Oath in the Court. He in support of his contention placed rFliance upon a case titled Muzaffar Ali and 2 others v. Ch. Asghar Ali (1991 CLC 2110), wherein the learned Judge while turning down a similar objection followed the principle earlier laid down in case reported as Ramzan and others v. Gopal Das and others (AIR 1932 Lahore 414), which is as under:-- ' The power to compromise an appeal is an implied power inherent in the position of an Advocate in India and therefore no power of attorney is necessary to empower a counsel to agree to a valid and binding compromise. The power to compromise may be validly exercised by an Advocate who has been authorized only to appear."
5. The learned counsel also relied upon a case titled Kamal Din and others v. Mst. Nawab Bibi and others (PLD 1988 Lahore 281). In this case offer of Special Oath was made by the counsel to the petitioner in the revision petition and not by the petitioners who were also present in the Court. The statement of the counsel was recorded to that effect and the same was also signed by two of the petitioners, namely, Hakim Din and Yaseen who were present in the Court. The petitioners later onpleaded that other petitioners who were present at the relevant time in the Court were not consulted in the matter as they had not endorsed the offer made by the learned counsel for the petitioners. The objection was finally turned down by making the following observations:-- "4. Since the proposal of the petitioner's counsel regarding special Oath was also endorsed by two of the petitioners, who were present, the same cannot be taken exception to on the ground that learned counsel for the petitioners put forth the proposal by by-passing the petitioners who were available with him. It is not the case of the petitioners that in the Vakalatnama given by them to their learned counsel there was no recital authorizing him to make the said offer. Such recitals are generally there in the standard forms of Vakalatnama. I, therefore, see. No force in the argument raised by learned counsel.
' The learned counsel then referred a case titled Nasrullah Jan v. Rastabaz Khan (1996 SCM R 108), wherein the order-sheet relating to administering of Oath was in the following words:- "4. The statement referred to in the order-sheet is in following words:-- ' The plaintiff is given an offer that if he takes oath on the Holy Quran that the pre-emption money has not been deposited by Samiullah Khan and that the suit of the plaintiff is not Benami and that he has not pre-empted the suit property for Samiullah Khan, then in that case the decree may be passed in favour of the plaintiff."
' I am prepared to take the said Oath.'
' Note:--The plaintiff has taken the said Oath to satisfaction of the defendant in presence of the defendants."
' This proceeding was given effect even by the Supreme Court and it was laid down that any irregularity committed by the Court was cured under section 13 of the Oaths Act 1873.
6. The learned counsel further argued that Muhammad Mushtaq, appellant No.1, also made an offer before the High Court on 5-5-2003. His statement to that effect was recorded by the High Court.
The statement of said appellant was supported by Malik Muhammad Yousaf Advocate who agreed to the offer made by Muhammad Mushtaq, appellant No.1, to the effect that if respondent Muhammad Zafar, shall state on Oath that he has not obtained the allotment of shop by committing forgery, their writ petition be dismissed. The statement of Malik Muhammad Yousaf, therefore, was rightly recorded by the Court that dispute between the parties be resolved on the statement of respondent No.5 on Oath that he has not obtained the allotment of disputed shop by committing forgery. The appellants being bound by the conduct of their Advocate are legally estopped to challenge the decision of the High Court given in the light of Oath. He further argued that it was not mandatory for the learned Judge to record the statement of his client which was made by him on Oath. From the judgment it is clear that his client made statement on Oath before the leanred Judge which was given effect by the learned Judge by dismissing the writ petition filed by appellants. According to him, as the dispute between the parties was resolved in pursuance of the offer of Oath made by appellant No.1 and accepted by his client by administering Oath to him, therefore, the decree cannot be interfered with on flimsy and technical grounds that the statement of his client was not recorded. He in support of his contention relied upon a case titled Muhammad Siddique v. Noor Muhammad and 2 others (1996 CLC 695), In this case the offer made by the plaintiff was not recorded however the statement made by defendant on Oath was recorded by the Court. An objection was raised in the High Court that as the statement of plaintiff was not recorded to the effect that he was willing to get the matter resolved on Oath, therefore, the entire proceedings of taking Oath and recoding the statement of defendant was an illegal exercise liable to be ignored but it was held as under:-- ' The plaintiff was present in Court when the offer was made by the defendant and he must have agreed with the offer, otherwise the learned trial Court would not have proceeded to record the statement of the defendant. Even otherwise the omission to record the plaintiff's statement separately is merely an irregularity which does not, in law, invalidate the entire proceedings of taking Oath and recording statement. Section 13 of the Oaths Act (X of 1873) covers such like situation as well and lays down that no omission to take any Oath or make any affirmation and no irregularity whatever in the form in which any of them is administered, shall invalidate any proceedings.".
7. We have considered the respective arguments of the learned counsel for the parties and gone through the record of the case. From the impugned judgment of the High Court dated 6-5-2003, it is clear that the contesting respondent, Muhammad Zafar, did make a statement on Oath however, the same was not recorded by the Court. However, we are fully conscious of this fact that offer was competently made by Malik Muhammad Yousaf, the learned counsel for the appellants, because his power of attorney was neither cancelled nor withdrawn. It is a provedfact on the record that Muhammad Mushtaq was prosecuting the writ petition on behalf of rest of the appellants and pro forma respondents before the High Court. On 5-5-2003 he was present in the Court. Firstly he made an offer before the Court that litigation with contesting respondent be resolved on Oath. His statement to that offer was recorded by the Court as he had no power of attorney on behalf of rest of the appellants and pro forma respondents. Therefore, in support of his statement the statement of Malik Muhammad Yousaf, the learned counsel for the remaining appellants, was recorded by the Court. It is not the case of the appellants that Oath was not administered by the Court in the terms the offer was made by appellant Muhammad Mushtaq and Malik Muhammad Yousaf, the learned counsel for rest of the appellants. In the same way the appellants have not disputed that the answering respondents had not accepted the offer and made the statement on Holy Quran to the effect that he had not secured the allotment of the disputed shop without committing any forgery.
However, their objection is that the statement of respondent was not recorded by the Court. This Court in Abdul Hameed v. Muhanimad Najeeb's case has held that statement given on Oath must be recorded. In that case the Division Bench of the High Court had decided the case on Oath without recording the statement of the parties. In our view, the view taken in that case is correct in light of the language applied in section 11 of the Oaths Act, 1873, which reads as follows:-- "11. The evidence so given shall, as against the person who offered to be bound as aforesaid, be conclusive proof of the matter stated."
And again in section 8 of the Oaths Act it is laid down that if any party offers to give an evidence on Oath the Court may administer such Oath. Under sections 8 and 11 of the Oaths Act, the word evidence has been used. In civil matters the provisions contained in C.P.C. Are to be followed. Under the provisions of the C.P.C. The evidence is to be recorded in writing either by the Judge himself or any other person in his presence and under his guidance which is also to be signed by the Judge.
The Presiding Officer of the Court under the scheme of law must consciously participate in all the proceedings from beginning to the end. In the present case even though the offer was competently made by one of the appellants and Malik Muhammad Yousaf, Advocate, on behalf of rest of the appellants, therefore, to this extent the objection is without lawful authority. We, therefore, while following the dictum of this Court in Abdul Hameed's case referred to above direct the High Court to decide the dispute after recording the statement of contesting respondent on special Oath.
' In view of the above, this appeal is accepted and judgment of theHigh Court dated 6-5-2003 is set aside. The case is remanded to the High Court for fresh decision in the light of directions given by us in this judgment.