' This Constitutional petition is directed against the concurrent judgments and decrees passed by the learned Courts below whereby the learned trial Court decreed the suit filed by respondent No,4, Mst. Zahida Bashir for the recovery of dowry articles and maintenance allowance, on the basis of oath offered by the petitioner.
2. Learned counsel for the petitioner contends that the decision rendered by the learned Courts below on the statement of Mst. Taj Bibi, mother of respondent No,3, who was neither a party nor a witness to the case is nullity in the eyes of law. He placed reliance on Muhammad Akbar and another v. Muhammad Aslam and another PLD 1970 SC 241; Abdul Rahim v. Sher Gul and 5 others 1987 CLC 1602; Pethayya Pillai v. Karuppiah Nadar and others AIR 1953 Mad. 708; Tulsi Ram v. Daya Ram AIR 1925 All. 604 and L. Prem Parkash v. Pt. Mohan Lal AIR 1943 Lah.
268.
3. I have considered the submissions made by the learned counsel for the petitioner and perused the record.
4. Before dilating upon the question raised by the learned counsel for the petitioner in his contentions, it is necessary to mention that Mst. Taj Bibi is the mother of respondent No,3 and mother-in-law of the petitioner. Plaintiff produced her evidence. The petitioner-defendant entered the witness-box and his examination-in-chief was being recorded when he made an offer voluntarily that if his mother-in-law Mst. Taj Bibi takes special oath on Holy Qur'an swearing by her deceased's son that she had not received amount as expenses of the marriage from the A petitioner he will have no objection to the decree of the suit. This offer was accepted by other side.
The case was adjourned to 27-11-2004 calling upon Mst. Taj Bibi to enter appearance. She appeared and without any objection by the petitioner/defendant of her taking special oath, she took the oath on the Holy Qur'an as per offer of the petitioner-defendant, in his presence. The petitioner cannot make summersault and, is, thus, debarred to wriggle out from his own commitment made before the Court.
5. Judgments cited by the learned counsel proceed on its own peculiar facts and are distinguishable.
6. In AIR 1925 All. 604, the plaintiff agreed that if the defendant would take an oath holding one of his sons in his lap with his hand placed on the son's head, he would accept it. The defendant agreed to do this, and a date was fixed for the required oath to be taken. The Court observed that the oath in question was one which it was not permissible for the Court to allow to be administered in view of section 8 of the Oath Act of 1873, as it was an oath affecting a third person. However, the defendant was unable to produce his son resulting into application of penal provision of Order XVII, rule 3, C.P.C., which course was held not to be a legal one.
7. In AIR 1953 Mad. 708, the controversy was that the suit was filed by four undivided Hindu brothers, one of whom was a minor against defendant No,1 and some tenants for a declaration of their title to immovable property. At the trial, plaintiff No,2, a younger brother of plaintiff No,1 was in Court, conducting the litigation and instructing their learned Advocate. Plaintiffs Nos.2 and 3 issued a challenge to defendant No,1, which was accepted to take an oath on the head of his eldest son.
Other plaintiffs were not present in Court. Suit was adjourned. On adjourned date, the other adult plaintiffs appeared and protested against the challenge made by plaintiff No,2 from which they resiled. Despite their resiling, oath was administered in Court on 16-12-1947 and the suit was dismissed. Appeal Court held that oath was not binding. It was observed that oath was only binding on the person who made the offer. The suit was ultimately tried on merits ignoring the oath.
8. In AIR 1943 Lah. 268, the facts giving rise to the controversy were reference of the dispute between the parties to the Arbitration of an Advocate. The Arbitrator gave his award. An application was made for passing the decree in accordance with the award. On the same date counsel for the parties appeared before the Court and made a joint statement according to which a decree was passed. The amount decreed was payable in 38 monthly instalments and a charge on the salary of judgment-debtor but was to become payable in case of default of any two monthly instalments. Default was committed. Execution was undertaken. Judgment-debtor raised objection that salary and provident fund could not be attached and agreement to the effect of attachment of provident fund and salary was void and unenforceable. The Court finally held that the compromise is an agreement recording will of the parties. It cannot be regarded to have acquired any greater sanctity than the compromise itself on the ground that it was adopted by a Judge or that the command of the Judge had been added to it. A person is not legally competent to waive a privilege or a benefit conferred on him on grounds of public policy and cannot be held to be estopped on account of any agreement which is opposed to law.
9. In PLD 1970 SC 241, the matter in dispute between the parties was in respect of an agreement that the Court may decide the dispute arising in a suit in accordance with the statement of a third person. Third person made an application of being threatened. The trial Court dismissed the application. Leave was granted by the Honourable Supreme Court to consider that if there was no compromise within the meaning of rule 3, Order XXIII, C.P.C., then the trial Court should not have recorded the statement of Abdul Razzak after the plaintiff retracted from the agreement and expressed lack of confidence in him. In this view the Honourable Supreme Court held that the appellant after having retracted of the agreement were not bound to abide by the statement of Abdul Razzak.
10. In 1987 CLC 1602 a suit for recovery was filed. It was contested. In course of plaintiff's evidence the defendant offered to abide by the statement to be made by Muhammad Iqbal by taking oath on "Talaq". This proposal was accepted. Muhammad Iqbal agreed to take special oath in presence of some persons from the parties and village. Since nobody was present from the village on the date, proceedings of special oath were postponed. On adjourned date, defendant No,1 submitted an application for permission to resile from his proposal. This application was contested. The trial Court refused to permit the defendant to resile. Muhammad Iqbal was examined. He took oath on Talaq (oath of divorcing his wife). Suit was decreed accordingly. Appeal was preferred, which was dismissed. In second appeal the Court relying on precedent law allowed the appeal and directed the Court to proceed from the stage where the suit was when special form of oath was proposed on the ground that oath under section 8 of the Oaths Act, must not be repugnant to justice or decency and should not affect a third party.
11. The nicety and technicalities of law could not be pleaded by the petitioner in his favour. The defendant voluntarily made an offer of special oath to be administered to his mother-in-law by swearing on her deceased's son. She took the oath on Holy Qur'an without any objection by the petitioner, even on the adjourned date of hearing. It is not against public policy, decency or Injunction of Islam. The petitioner cannot now take somersault pleading technicalities in his favour.
He cannot be allowed to wriggle out of his solemn offer after administration of special oath by his own mother-in-law. She cannot be treated as a stranger or third person. It was she who gave dowry articles. Equity is in favour of the respondent-wife. Justice has been done to her. An order in Constitutional jurisdiction is a discretionary one. Its object is to foster justice and right a wrong. No injustice has been caused to the petitioner. Order even if without jurisdiction, cannot be set aside, if not working injustice. This is the mandate of law recorded in the pronouncements of Honourable Supreme Court in cases Nawab Syed Raunaq Ali and others v. Chief Settlement Commissioner and others PLD 1973 SC 236; Wali Muhammad and others v. Sakhi Muhammad and others PLD 1974 SC 106; Zameer Ahmad and another v. Bashir Ahmad and others 1988 SCM R 516 and Syed Ali Shah v.
Abdul Saghir Khan Sherwani and others PLD 1990 SC 504.
12. For what has been discussed above, this Constitutional petition is without force and is dismissed in limine along with all accompanied applications.