1. The brief facts as disclosed by the appellant Juma Khan in his memo. Of appeal are that he had brought a suit for possession, partition and accounts against the respondent No. 1 Nabi Bakhsh in the Court of Senior Civil Judge, Quetta an 12th January 1961. On being served with summons, the respondent No. 1 filed his written statement in the Court. He admitted that the appellant had entered upon a co-sharer with him on some lands including the disputed land. However, he denied the petitioner's claim. The appellant suit was decreed on 7th August 1967. The respondent No. 1 filed an appeal before the Court of District Judge, who on 27th November 1967 set aside the judgment and decree and remanded the case for fresh decision to the same Court. As is evident from the record, the matter remained pending before the Court of learned First Class Civil Judge for a pretty long time. However on 3rd September 1975 the respondent No. 1 in spite of service on him remained absent from the Court. The Court ordered ex parte proceedings against him. Proof of ex parte proceedings was to be recorded on 2nd October 1975. On that day, the appellant made his appearance before the Court. The record revealed that the dispute was decided on special oath between the parties. On taking of such oath by the defendant, the learned Senior Civil Judge passed a scanty order as under :- "Parties present. Decision taken on oath on Holy Quran. Defendant took oath. The defendant stated that the suit brought against him was false and fictitious. He denied of having usurped 'any right' of the plaintiff. On taking of such oath by the defendant, given by the plaintiff to him, the suit is dismissed and the record be consigned. Two shops in possession of the plaintiff shall remain to be his."
2. Being aggrieved against this order, the appellant filed first appeal before the Court of District Judge, Quetta. However, the same was disposed of by the learned Additional District Judge, Quetta on 29th November 1976. The learned Additional District Judge upheld the order of the lower Court.
3. This decision of the first appellate Court has been challenged by the appellant in second appeal under section 100, C. P. C. Before this Court.
4. It was vehemently contended by Mr. I. H. B. Hanafi the learned counsel for the appellant that the orders passed by both the lower Courts were inconsistent with the provisions of sections 8, 9, 10 and 11 of the Oaths Act. Being inconsistent with the above-said provisions of the Oaths Act, the orders were illegal as such not maintainable. In support of his conten--tion, the learned counsel has placed reliance on authorities Riaz Ahmad v. Muhammad Ismail and 2 others (PLD 1976 Lah.
5. 1320), Jalal Din v. Chiragh Din and 2 others (PLD 1972 Kar. 622) and Mst. Asifa Sultana v. Honest Traders, Lahore and another (PLD 1970 8 C 331).
6. In PLD 1976 Lah. 1320; para. 8 of the judgment was relied upon by Mr. Hanafi. It reads :- "The above discussion would show that a party who wants to bind down any other party by special oath must make statement on oath in a specific form agreed to between the parties. In the present case, special oath was to be taken to the effect that accounts books were in possession of Muhammad Ismail, respondent, and so much amount was due from him to the appellant; while the appellant never made any statement on oath that accounts books were in possession of Muhammad Ismail. It means that the form suggested by Muhammad Ismail and agreed to between the parties was never followed by the appellant while making the statement. In the circumstances there was no conclusive material before the Court, as contemplated by the provisions contained in sections 8 to 11 of the Oaths Act, to pass decree against Muhammad Ismail, respondent. The judgment and decree passed by the learned trial Court against Muhammad Ismail, therefore, cannot be sustained in law."
7. On the other hand, Mr. Ansari the learned counsel for the respondent No. 1 vehemently contended that the orders passed by the two lower Courts were quite correct and just. The learned counsel maintained that albeit the order passed by Senior Civil Judge was scanty and short nevertheless un--equivocal in words. Indeed, it establishes that the plaintiff had offered the oath to the defendant; oath was in respect of the plaintiff's claim; over the property in dispute and the defendant had taken oath in the Court. Therefore learned counsel reiterated that there was nothing wrong with the impugned orders. Consequently provision of sections 8, 9, 10 and 11 of the Oaths Act were not contravened.
8. The order of the learned Civil Judge First Class though not happily worded yet it in clear words states that the dispute between the parties was settled on oath on Holy Qur'an. The order also clearly shows that the oath was to be taken in respect of correctness of the suit brought by the plaintiff against the defendant. Besides the order shows that the plaintiff had given oath to the defendant. The order further shows that the defendant had taken the oath.
9. Under such circumstances it will suffice to say that the defendant had taken the oath in the form suggested by the plaintiff and in respect of the, property under dispute.
10. In case of Riaz Ahmad v. Muhammad Ismail and 2 others, oath taken by Riaz Ahmad was not in form or as suggested by Ismail. The remaining two authorities are not relevant with the facts of the case. I fear that the authorities could bear any fruit to the appellant.
11. Moreover, I was fully impressed by the contention of Mr. An3ari that any irregularity or omission in taking of oath is curable under section 13 8 of the Oaths Act. The section says that omissions in taking of oath o irregularities committed thereto shall not invalidate any proceedings. Mr. Hanafi abortively tried to interpret this section in his favour. However, I am not satisfied with explanation given by Mr. Hanafi. Indeed this section is just as section 537 in Criminal Procedure Code.
12. In view of the circumstances discussed above, it is held that the provisions of sections 8, 9, 10 and 11 of the Oaths Act were not violated by the learned Senior Civil Judge, Quetta. His order therefore was right. It was rightly upheld by the learned Additional District Judge. The order being scanty and short, however in my view was not illegal so as to be interfered with in this second appeal. The learned Civil Judge, First Class ought to have written a speaking order. In future he should do so.
13. For the foregoing reasons, I refuse to interfere with the impugned orders. Thus the appeal stands dismissed. The cost to be born by the appellant.