' Mudam Gul son of Saida Gul instituted a Suit No,37/1 on 25-3-1996 for possession through pre- emption of the suit property measuring 36 Kanals sold through Mutation No,1171 attested on 22-10- 1989: This suit was contested by the defendants and issues were framed. An application was also submitted, by the Arbitrators who mentioned that the parties had decided the matter on the basis of arbitration and it was requested that the Award of. ,the Arbitrators be made as rule of the Court.
This application was entered at No,154/1-A, instituted on 12-9-1990, and was decided and dismissed on 24-3-1997 on the ground that no evidence was produced about its genuineness or correctness and that Muzaffar Shah was not entitled to enter into any agreement with Mudam Gul without the special or general power of attorney on behalf of his other brothers. It was further held that all the parties to the dispute had not given consent for arbitration and no notice or intimation had been shown to had been given to all the parties in dispute, and no umpire had been appointed to the arbitration. The suit of the plaintiff was also dismissed on 24-3-1997.
2. The case was, however, remanded back, on appeal, by the learned Additional District Judge, Charsadda, vide his judgment and decree dated 1-12-1997, in Civil Appeal No,38/13 instituted on 16- 4-1997. An application dated 27-7-1999 was submitted by the defendants against the Civil Judge named therein on the ground that the defendants did not expect justice from him.. It was mentioned that the next date in his Court was 28-7-1999. The comments of the learned Civil Judge were obtained. It was also brought to the notice of the Court that another application for transfer of the case from the Court concerned was also pending. The learned District Judge, Charsadda, vide his order, dated 31-7-1999, dismissed the application with direction to the learned Civil Judge to decide the case purely on merits without giving any partial signs to any party. It was on 18-9-1999 that the same learned Civil Judge, who had admitted that he had become prejudiced with the transfer application and was under the direction not to show any partial signs to any party, recorded order-sheet No,7 as follows:- "0-7 18-9-1999. Parties and their respective counsel present., Arguments were addressed and record of the case gone through.
' During the course of arguments of the learned counsel for plaintiff/applicant/pre-emptor, the attorney for the defendants, in the presence of-the counsel for the parties, made an offer at bar, to the plaintiff, to the effect, that if plaintiff could say it on oath that arbitration documents Exh.R.W.1/1 to Exh.R.W.1/2 are genuine and that arbitration had in fact taken place, then he would have no objection if plaintiff's suit for pre-emption is decreed.
' Plaintiff, there and then, accepted the offer as per the demand of defendants' attorney, he performed ablution. He took oath on Holy Qur'an, and admitted the afore-referred documents to be true and genuine.
' When the oath was administered to the plaintiff, as per offer, defendants attorney demanded that plaintiff should further qualify his oath with the pronouncement of Talaq. This was not only denied by the plaintiff himself but the Court also deprecated the additional qualification, which was also not a part of the first offer.
' To this, defendants' attorney resiled and refused to sign the statement containing oath proceedings.
' In view of above, I am of the view, that a party cannot resile from the offer of oath, when the oath, as per the offer, has already been administered. To make plaintiff, to further declare his oath words with the pronouncement of Talaq, is neither permissible under the law, nor it was a part of the first offer.
' I, therefore, held that after the administration of oath, the plaintiff is entitled to the decree for pre- emption.
' Decree for possession through pre-emption is accordingly granted. No order as to costs. File be consigned to the record room after its completion."
' The defendants Civil Appeal No,65 of 2000, instituted on 25-1-2000, decided on 20-6-2000, was dismissed by the learned Additional District Judge, Charsadda. Hence the present civil revision. I heard the arguments of Mr. Ziaur Rehman Khan, Advocate for the petitioners and Mr. Abdul Latif Afridi, Advocate for the respondents, and perused the record of the case.
3. Leaned counsel for the petitioners submitted that the offer and acceptance of the oath was the result of emotional decision at the spur of the moment and the mode of oath was not clear as the people from village confirm the oath by Talaq in support of the oath on Holy Qur'an, that the petitioners had refused to sign the statements of the parties regarding the oath and that the learned Civil Judge had made his decision in a hurry, in spite of the fact that applications for transfer of the case against him were filed by the present petitioners on the ground that they had no confidence in him. The learned counsel for the respondent, however, argued that the oath on Holy Qur'an was sufficient compliance of the offer of the petitioners and the people from villages take Holy Qur'an in high esteem.
4. While discussing the Award of the Arbitrators, the learned counsel for the petitioners and of the respondent discussed the decision reported in the following cases:--
(i) 1999 SCMR 2702; (ii) 1999 CLC 1685; (iii) 1998 SCMR 816; (iv) PLD 2002 SC 310; (v) PLD 1984 Pesh.
121.
5. The Arbitrators in this case were allegedly appointed by the plaintiff and one of the defendants and not by the Court. The evidence of the parties had been recorded by the Court of competent jurisdiction in respect of the correctness and genuineness, or otherwise of the Award. All the factual and legal points concerning the appointment of the Arbitrators, the consent of the parties to such appointment, the appointment of umpire, the registration of Award, and other related matters could be decided in the light of the evidence and arguments of the parties by the learned Original Court. But he decided the matter on the basis of the disputed oath.
6. The learned counsel for the petitioners relied on the judgments in the cases which are as follows:--
(i) 1999 MLD 389; (ii) PLD 1990 SC 841; (iii) PLD 2002 SC 655; (iv) PLD 1993 Pesh.
72.
' The learned counsel for the respondent referred to the judgments in support of his case which are as under:--
(i) 1991 SCMR 1371; (ii) 1997 SCMR 1085; (iii) 1999 SCMR 2115; (iv) PLD 1988 Pesh. 65 (v) PLD 1993 Pesh.
71.
7. The oath under Article 163 of the Qanun-e-Shahadat, 1984 is different in nature from the oath under the provisions of the Oaths Act, 1873. In the first case, the plaintiff takes oath in favour of his claim, submits an application that the defendant may take oath in support of his plea and the case is decided on completion of the proceedings. In the case of oath under the Oaths Act, 1873, a party may offer oath to the other party or its witness and may bind himself by taking of such oath.
It has always been held that the decision of cases on the basis of oath is an established mode of decision of cases. Generally, a party cannot resile from the offer of oath, when the oath, as per offer, has been administered. The Court, in such a case, has no other alternative but to decide the case in accordance with the effect of the oath. Such oath, however, is to be offered with due diligence and is to be accepted after due consideration. There are circumstances in which such offer is made to the opposite party after considering its effect and the opposite party may either accept or reject the offer after considering its consequences: In such circumstances, the parties are well-composed and not overcome by spontaneous emotions. The party offering the oath must be mentally calm and considering when he so offers, must not be under the influence of emotions and must be in a position to clearly know that he will lose his right, if any, if the oath is taken by the opposite party. The people of villages, when not sufficiently educated and properly experienced, offer oath during heated discussions, only to oppose the stance of the opposite party and to show that the opposite party is telling a lie.
8. The Court of law is to decide a case keeping in view the rights and liabilities of the parties in the light of the record on file, and not merely to dispose of a case in a hurry. The Courts, being the ultimate protectors of the rights of the litigants, have the responsibility to ensure that the valuable rights of such litigants are not destroyed by their unintentional faults and innocent mistakes.
9. It has always been appreciated that a party may offer oath to the opposite party, after due consideration, the Court may consider whether such an offer should or should not be made in the circumstances prevailing at the time of such offer, that an application for making such offer is made to the Court, and the party, to which the offer is made, is provided chance to consider the offer with diligence, and if such party agrees to take oath, the statements of the parties are first recorded. The Court may, then, either proceed with the oath taking by itself, or may depute a commission for taking such oath. The Court should avoid the situation where one party, in the heat of discussion, or in emotional situation, offers oath to the opposite party without due consideration of its effects, and without submitting a proper application, and the opposite party, in the same circumstances, immediately accepts the offer without having a chance of patiently considering the consequences of oath.
10. The learned Judge of the Original Court in this case was required to be more cautious in the circumstances that transfer applications had recently been made against him by the petitioners who had lost their confidence in him He did not receive an application from the petitioners and was in such a hurry that he, even, did not record the statements of the parties before taking the oath. It was just immediately after taking the oath that it became controversial and the petitioners refused to sign the statements as they were not satisfied with the proceedings. The evidence of the parties had already been recorded. Each of the witnesses of the parties was not only legally bound to take oath before starting his statement in Court, but each of the witnesses was legally required to speak the truth and nothing but truth. A special oath at the time of arguments and with such a lightening rapidity was not expected of an impartial judicial officer, as he had a chance to decide the case on its own merits just immediately after the close of the arguments, and to keep the way open for the aggrieved party to go on appeal/revision against his order, instead of closing the way for the aggrieved party by the unnecessary oath taking.
11. The learned Additional District Judge-H, Charsadda, took the oath proceedings on their face value without looking to the actual prevailing circumstances at the time of the oath. The learned Civil Judge took opportunity with such a speed and hurry that he did not fix the sale consideration of the suit-land in his final judgment and decree, and the learned Additional District Judge had to take it upon himself to fix the amount of sale consideration and also directed for its deposit. In the light of the above discussion. The impugned judgment and decree of the learned Additional District Judge is not based on solid reasons and is, therefore, liable to be set aside.
12. In the peculiar circumstances of this case, I deem it in the interest of justice to the parties to accept this civil revision to set aside the judgment and decree of the learned Additional District Judge, dated 20-6-2000 as well as the judgment and decree of the learned Civil Judge dated 18- 8-1999, and to remand the case back to the learned Senior Civil Judge, Charsadda, with direction to either himself hear the arguments of the parties and decide the case on its merits, or entrust it to a learned Civil Judge at the station for such decision. Parties are directed to appear before the said. Court on 25-6-2005. The parties are, however, left to bear their own costs.