' JAWWAD S. KHAWAJA, J.---The appellant-plaintiff impugns the appellate judgment and decree, dated 14-6-2006 whereby the decree of the learned trail Court, dated 2-12-2005 has been set aside and, as a consequence, the case has been remanded to the trial Court for decision on the basis of evidence.
2. The facts necessary for deciding this appeal are straightforward. The appellant filed a suit seeking specific performance of an agreement, dated 20-10-2003 executed in his favor by the vendor Muhammad Arshad (respondent No,2 herein). Respondent No,1, namely Muhammad Suleman, claimed that the aforesaid vendor had sold the land to him vide Mutation No,379, dated 10-2-2004. The said Muhammad Suleman also filed a separate suit praying for declaration of title to the suit-land.
3. On 2-12-2005 the respondent Muhammad Suleman offered that the case be decided on special oath. The terms of the oath were that if the vendor Muhammad Arshad were to swear an oath on the Holy Quran that he had not entered into a bargain with the respondent Muhammad Suleman and had not received Rs,5,00,000 and also that he had not obtained sanction of Mutation No,379, his declaratory suit be dismissed and the suit filed by the appellant Muhammad Ramzan be decreed.
4. The order sheet of the trial Court shows that the vendor Muhammad Arshad accepted the terms of the oath offered by Muhammad Suleman. In its order, dated 2-12-2005, the Court noted that Muhammad Arshad had sworn the oath offered by Muhammad Suleman in presence of the parties and their counsel. On this basis the suit filed by the appellant for specific performance was decreed while the declaratory suit filed by Muhammad Suleman was dismissed. A third suit which had been filed by the vendor Muhammad Arshad wherein it had been alleged that Mutation No,379 had been procured through fraud, was also decreed.
5. Muhammad Suleman preferred an appeal which as noted above, has been allowed. The reason which has prevailed with the learned appellate Court for setting aside the decree of the learned trial Court is noted in paragraph 9 of the appellate judgment. The relevant part thereof is reproduced as under:-- "There is no detail of the offer and nature of the oath in the said application, however the statement of the appellant, recorded by the learned trial Judge is that Muhammad Arshad be asked to take oath on Holy Quran that he has not entered into an agreement with him and not received an amount of Rs,5,00,000 and that Mutation No,379 was not got sanctioned by him. If he makes the above statement, the suit filed by the present appellant be dismissed and the other two suits be decreed. No statement of Muhammad Ramzan one of the plaintiffs, whose suit was also been decreed, was recorded. The statement of Muhammad Arshad was recorded by the learned trial Judge, wherein he maintained that he was ready for oath on Holy Quran. The learned trial Judge did not record any such statement and has given a passing reference in his impugned order that Muhammad Arshad took oath on Holy Quran. As per section 9 of Oaths Act, 1873 it was required to the learned trial Judge to offer the oath proposed by the appellant which has been rightly proposed and thereafter under section 10 of the same Act, the oath was to be administered on the party, accepted No such administration of oath is on the file. Tinder Art. 163 of Qanun-e-Shandat (10 of 1984) too, if the offer was accepted by Muhammad Arshad the oath was required to be taken in the manner and as proposed by the appellant in his statement. It has been held by the Hon'ble Supreme Court of AJ & K in case 2001 YLR 3001 that the statement on special oath of respondent was mandatory to be recorded. The Hon'ble Lahore High Court, Lahore in case cited as PLD 1999 Lah. 328 has held that oath of a person who does not inspire confidence is of no consequence.
What to talk of confidence-inspiring statement, there is no statement on oath whatsoever on the file. In all the case-laws produced by the learned counsel for the respondents the facts and circumstances were altogether different from the present case as in all those cases the statement on oath of the person was so recorded by the Courts. The reference of the learned trial Judge that Muhammad Arshad took oath, does not meet the requirements of Oaths Act as well as Qanun-e- Shahadat Order."
6. Considering the circumstances which have been noted above and the order sheet of the learned trial Court, it was argued on behalf of the appellant that the reasoning of the learned appellate Court was contrary to the record and the appellate decree was, therefore, not legally sustainable.
7. The contentions of learned counsel for the appellant are well founded and could not be seriously disputed by learned counsel for Muhammad Suleman (respondent No,1). He merely submitted that Muhammad Arshad (respondent No,2) had not filed any appeal against the appellate decree and, therefore, as against him (Muhammad Arshad) the said order of remand had attained finality. This contention is misconceived because the appellant has a genuine grievance against the remand order. The entire case of the respondent Suleman was based on his title to the suit-land as evidenced by Mutation No,379. Since Suleman's declaratory suit and Muhammad Arshad's suit stand decided on the basis of the special oath, the respondent Suleman has no loucs standi to contest the suit for specific performance filed by the appellant. Here it may also be added that all three suits were being taken up and dealt with together by the learned trial Court. The decision in the appellant's suit for specific performance was directly effected by the oath and the decrees in the other two suits filed respectively by Suleman and Arshad. It is also important to note that the suit for specific performance filed by the appellant stands decreed. Muhammad Arshad has not assailed the said decree, which has, therefore, attained finality. The consequence of the decree is that the interest of Muhammad Arshad in the suit property stands transferred to the appellant and, as a consequence, the appellant has stepped into the shoes of Muhammad Arshad. He, therefore, has locus standi to impugn the remand order.
8. I now take up for consideration the reasoning of the learned appellate Court, which has been reproduced in paragraph 5 above. The same does not take into account the most crucial aspect of the case, which is the order-sheet of the learned trial Court. In the same, the statement of Muhammad Suleman and Muhammad Arshad has been duly recorded. The learned Court has also noted in its order that Muhammad Arshad had sworn the oath before the Court itself and in the presence of the parties and their respective counsel. There was, as such, no basis before the appellate Court for going behind the order of the learned trail Court and the circumstances recorded therein.
9. In the foregoing circumstances, I find the impugned remand order to be a result of misreading of the record and material irregularity in the exercise of the appellate Court's jurisdiction. The remand order is, therefore, set aside with the result that the decree of the learned trial Court in all three suits is affirmed.