Instant civil revision assailed the judgments/decrees dated 4.10.2004 and 29.1.2005 passed by the learned Civil Judge and the learned Additional District Judge, Samundari, (Faisalabad) dismissing the petitioner's suit as well as appeal, respectively.
2. Succinctly, relevant facts are that the petitioner filed a suit for specific performance of an asserted oral agreement to sell whereby 7 Kanals of land was allegedly agreed to be sold by Respondent No, 1, his brother, for an amount of Rs, 1,80,000/-. The petitioner pleaded that Respondent No, 1 had received an amount of Rs, 55,000/- as earnest money and promised to get the mutation of the suit land sanctioned in his favour from the revenue officer on the next day but he did not appear before the Revenue Officer, inspite of the fact that petitioner had been willing/ready to perform his part of contract of payment of balance sale price of Rs, 1,25,000/-.
3. The respondents being defendants in the suit contested the same by filing their respective written statements. Controversial pleadings of the parties necessitated framing of issues and recording of evidence. The petitioner initially on 25.11.2002 filed an application under Article 163 of Qanun-e-Shahadat Order, 1984 requiring his brother, Respondent No, 1 to given an oath on the Holy Quran that bargain as asserted in the plaint was not struck and if he gives such oath, his suit may be dismissed. Alike application was repeated by the petitioner on 5.6.2003 and Respondent No, 1 each time refused to give the oath, required by the petitioner. Thereafter on 25.9.2004 the petitioner made a statement before the trial Court offering that if Respondent No, 1 states before the Court that bargain of sale was not struck between the parties, his suit may be dismissed. In response to statement by the petitioner, Respondent No, 1 appeared before the trial Court on 4.10.2004 and stated that suit by the petitioner is false and claim of Respondent No, 2 is correct. The learned trial Judge who was seized of the matter, acting on statements of the parties dismissed the suit of the petitioner vide his judgment/decree dated 4.10.2004.
4. The petitioner aggrieved of the decision of the trial Court dated 4.4.2004 filed an appeal before the learned Additional District Judge but remained unsuccessful as the same was dismissed through the appellate judgment/decree dated 29.1.2005. He has now filed the instant revision petition for adjustment of concurrent judgments/decrees of the two Courts belows.
5. The learned counsel for the petitioner submitted that the trial Court after rejection of two applications by the petitioner under Article 163 of Qanoon-e-Shahadat Order, 1984 had no occasion to have resort to the same exercise purpose especially when the suit was already fixed for recording of evidence. According to him, controversy between the parties should have been resolved on merit, instead of its decision on statements of the parties. It was further submitted that the suit was being adjourned awaiting decision by the Appellate Court and the same being not fixed for hearing trial Court had no jurisdiction to record statements of the parties. It was further emphasized that the trial Court acted in vacuum in not recording the offer/acceptance of the parties about the decision of the suit and that, statement of Respondent No, 1 was to be recorded on oath of the Holy Quran but dismissal of suit without such course being adopted, was not lawful.
The learned counsel for the petitioner further emphasized that the procedure adopted by the trial Court for decision of the suit was not covered by Order XXIII, Rule 3 CPC, or by any other provision of law, hence, the impugned judgments/decrees deserved reversal.
6. I have minutely considered the arguments of the learned counsel for the petitioner and have examined the record appended herewith. The petitioner had not denied his offer dated 25.9.2004 of decision of his suit on the basis of statement by Respondent No, 1 which was also in line with his requirement in his two earlier applications under Article 163 of the Qanoon-e-Shahadat Order, 1984. The petitioner also did not refute before any of the Courts below that his statement dated 25.9.2004 was not correctly recorded. At the time of recording of statement of Respondent No, 1 on 3.10.2004 after about 8/9 days, the petitioner alongwith his counsel was present in the Court and he signed the statement of Respondent No, 1/order of the trial Court on the margin but did not object to the manner of recording of statement of his brother (Respondent No, 1). The petitioner, thereafter filed an appeal before the learned Addl. District Judge and again did not dispute his statement, as it stood and his only objection was that he had required the Respondent No, 1 to make the statement on oath of the Holy Qur'an. Now the petitioner having not reacted before the trial Court on 25.9.2004, the day of his own statement, slept for all 8/9 days and did not move application resiling or refuting his offer and then again accepting mode of statement by Respondent No, 1 on 4.10.2004 when his counsel was also present in Court did raise any object. After all this, he cannot be permitted to turn back to say that statement of Respondent No, 1 was not recorded on oath of the Holy Qur'an or getting offer/acceptance of parties for decision and that too, after loosing the case. Under law presumption of correctness/regularity is attached to judicial proceedings/orders, recorded/undertaken in routine/due course, hence, in view of the above noted conduct of the petitioner of remaining silent on each occasion. I am not ready to accept his after thought defence of not making the statement on the Holy Qur'an. The petitioner has admitted even before this Court, his signatures on the margin of both the interim orders of the trial Court dated 25.9.2004 and 4.10.2004 in presence of which it is immaterial that beneath his signatures, some other Advocate signed who was not his counsel. Such signatures are normally obtained for identification purposes, hence, in view of the admission of the petitioner of his signatures it is immaterial that his counsel did not sign on the order sheet dated 25.9.2004.
7. Stance of the petitioner that the procedure adopted by the trial Court is not covered by Rule 3 of Order XXIII CPC has also no worth in it as the petitioner out of his own free will/volition called upon the Respondent No, 1 to make the statement before the Court that if there was no agreement between the parties, his suit be dismissed. Decision on the basis thereof, was an adjustment of the suit through a lawful agreement/compromise, covered by above referred provision of Civil Procedure Code. Reference in this behalf can additionally be made to the judgments in the cases of Madan Mohan Gargh versus Munna Lal and others (AIR 1928 Allah Abad 497), and Muhammad Ijaz and 3 others versus M. Khurshid Malik and 4 others (PLJ 1986 Lahore 395).
8. Under Order XXIII, Rule 3 CPC, Courts have to satisfy their judicial conscience about lawfulness of compromise inter parties. The petitioner in view of his claim being based on an oral agreement to sell, on account of absence of any documentary proof in form of agreement of receipt etc., had been persistently calling upon the Respondent No, 1 to admit or deny his narrations in the plaint.
Earlier calls through written applications for making statement on oath of the Holy Quran were not accepted by Respondent No, 1 and for the third time, call by the petitioner to make statement without oath on the Holy Qur'an, appears to be factually correct because after two denials by Respondent No, 1 there was no occasion to repeat the same offer for the third time. In view of this factual aspect, both the Courts felt satisfied about the genuineness of compromise between the parties, hence, rightly acted on it to dismiss the suit of the petitioner. Even before this Court no argument about lawfulness or otherwise of this arrangement inter parties was addressed.
9. For the reasons noted above, none of the Courts below committed any illegality/irregularity amenable to revisional jurisdiction of this Court and the impugned judgment/decrees are not tainted with any legal defect, hence, this revision petition having no merit in it, is dismissed in limine.