' ARSHAD NOOR KHAN, J.--- By this order I intend to deal with the order passed by this Court dated 12-4-2006 whereby the plaintiff was directed to satisfy the Court on the point of limitation in filing of the suit.
' The case of the plaintiff as per plaint is that he participated in an open public auction on 21-8- 1999 held by defendant No,2 for sale of property situated at Plot No,C/22, Al-Hilal Cooperative Housing Society, Karachi and he tendered bid at the rate of Rs,9,150 per sq. Yards, which comes to an amount of Rs,7,063,800. At the time of participation in the auction he deposited Rs,50,000 as condition precedent to participate in the auction proceedings and on the falling of hammer he also deposited an amount of Rs,3,00,000 as such as per requirement of the brochure he deposited Rs,3,50,000 with the defendant No,2. It is further alleged in the plaint that before payment of remaining installments, defendant No,2 informed the plaintiff that one Abdul Karim Raeesani occupant of the said property filed a Civil Suit No,183 of 2000 against defendant No,2 for permanent injunction with the prayer not to eject him from the property, hence the officials of the defendant No,2 refused to accept the balance hid amount and Civil Revision No,143 of 2001 is still pending adjudication relating to Civil Suit 183 of 2000 before this Court and the plaintiff filed application to join him as intervener but his application was dismissed by this Court and consequently Revision Application No,143 of 2001 was also dismissed.
' It is further stated in the plaint that the token money was liable to be forfeited in case, he committed any default but since he did not commit any default as such being successful bidder a vested right has been devolved in him. It is further averred in the plaint that the terms and conditions of the auction empowers the defendant No,2 to impose surcharge equivalent to or any other amount of penalty which he deems fit, in case, of default of subsequent instalment. It is further stated in the plaint that the possession of the property in question is to be delivered to successful bidder but the defendant No,2 is still not in a position to handover the possession of the property to the plaintiff as such the plaintiff served legal notice dated 18-3-2006 through his counsel upon defendant No,2 along with a cross-cheque dated 18-3-2006 amounting to Rs,67,13,800 of M.C..B., Al-Hilal Society Branch, University Road, Karachi, but the cheque was returned and the defendant did not reply the legal notice hence the plaintiff filed suit seeking therein declaration to the effect that he is lawful bidder in respect of the property in dispute and is ready to get the same transferred in his name after payment of balance amount of the bid and consequential relief in the shape of injunction has also been prayed.
' Notice of this application and the suit has been served on the defendants and defendant No,2 filed his written statement admitting therein the auction of property in dispute being abandoned property, in terms of section 2(a) of the Abandoned Properties (Management) Act, 1975, hereinafter shall be referred to as the "Act of 1975". As the abandoned properties vested in Federal Government and by virtue of section 11 of the Act, 1975 it was decided to dispose of the abandoned properties including the property in question by way of auction and a high power auction committee was constituted who prepared the brochure and an advertisement for auction of as many as 11 properties, on the basis of "as is where is" was published in newspapers and the auction was held on 21-8-1999 wherein plaintiff participated in two auctions viz. Plot No,C115 admeasuring 800 sq.
Yards and Plot No,C/22 admeasuring 772 sq. Yards both located in Al-Hilal Cooperative Housing Society and he deposited token money and Rs,3,50,000 on the fall of hammer for a total bid amount of Rs,7,063,800 and signed an undertaking for the bidder. It is further stated in the written statement that the plaintiff wrote as may as four letters requesting therein for refund of Rs,3,50,000 deposited by him and that the Suit No,183 of 2000 was filed by illegal occupant of Property C/22, which was contested by the defendants and was dismissed by the Court of Senior Civil Judge, Karachi-East and the appeal filed against the said judgment was also dismissed by the Additional District Judge, Karachi-East and revision filed by the said illegal occupant has also been dismissed by the High Court on 13-3-2006. It is further stated in the written statement that the main thrust of the plaintiff was only to get the amount of Rs,3,50,000 returned and prayed for dismissal of the suit.
' The suit was fixed before this Court on 12-4-2006 and it was noticed that the suit filed by the plaintiff was barred by the point of limitation; therefore, the plaintiff was directed to satisfy the Court on the point of limitation.
' I have heard Mr. Wan Hassan, Advocate for the plaintiff and Mr. S. Tariq Ali, Standing Counsel for defendants.
' The learned counsel for the plaintiff vehemently contended that the defendants themselves refused to accept the balance amount of the total auction price on the ground that the civil litigation was pending adjudication before the High Court, therefore, plaintiff was not at fault and the defendant was called upon by the plaintiff through legal notice dated 18-3-2006 to accept the balance amount of auction price and execute the sale-deed as such the limitation for filing the suit was 12 years but he completely failed to point out any specific article of Limitation Act which provides 12 years to file suit of similar nature.. He has further contended that the defendant in order to deprive off the plaintiff from his legitimate and vested right of execution of sale-deed in his favour have ruined the plaintiff for such a long time for which the plaintiff is not at fault as such the suit filed by the plaintiff is very much in time.
' Mr. S. Tariq Ali, Standing Counsel for defendants while refuting the contention advanced by the learned counsel for the plaintiff has vehemently contended that the suit filed by the plaintiff is hit under section 23 of the Act of 1975 and that the suit is barred under Article 120 of the Limitation Act, he therefore, stressed that the suit filed by the plaintiff after such a long time is hopelessly time- barred and is liable to be rejected.
' I have considered the argument advanced on behalf of the parties and have gone through the averments contained in the plaint as well as the material available on record.
'It is not disputed that auction of the disputed property was held on 21-8-1999 and the plaintiff tendered highest bid at the rate of Rs,9,150 per square yard for a total sale consideration of Rs,7,063,800 and deposited Rs,3,50,000 as per condition of the brochure of the auction. It is also an admitted fact that the defendant accepted the bid tendered by the plaintiff being highest bid and informed the plaintiff about the acceptance of the said bid vide their letter dated 27-9-1999 filed by the plaintiff as Annexure "C" to the plaint. A perusal of the letter of acceptance issued by the defendant No,2 shows that the bid tendered by the plaintiff being highest was accepted and he was required to deposit the balance payment of 75% in three equal instalments of 25% of the total bid after every three months from the date of issuance of letter of acceptance dated 27-9-1999, Annexure "C" to the plaint. The plaintiff was therefore, required to tender three installments on the expiry of three months each and admittedly the plaintiff did not deposit a single installment of remaining balance of 75%. The plaintiff in his plaint has alleged that the defendant refused to accept the balance amount on the point that a Civil Revision No,143 of 2001 was pending adjudication before the High Court involving the same subject-matter of the suit. The plaintiff has completely failed to name any of the officer of defendant No,2 who either informed him about the pendency of the litigation before this Court or who refused to accept the balance of the remaining amount of bid. The plaint is completely silent to show that he ever offered any amount of instalment to defendant No,2 immediately after receipt of letter of acceptance, Annexure "C" to the plaint. He remained silent in payment of any instalment till December, 2004 when he filed application in Civil Revision No,143 of 2001 before this Court to join him as party, which admittedly was dismissed by this Court on 13-3-2006 and finally the civil revision was also dismissed vide order of this Court dated 10-4-2006. The material available on record shows that Abdul Karim Raeesani, who was illegal occupant of Plot No,C/22 had filed a suit for injunction against his illegal eviction at the hands of defendants, which was dismissed and Revision Application 143 of 2001 before this Court was also dismissed on 13-3-2006. It is also not disputed that plaintiff participated in the auction proceeding on "as is where is" basis, as such the plaintiff himself was in the knowledge about the occupation on the said property by Abdul Karim Raeesani and even otherwise the title of the property in dispute was never disputed before the Civil Court which being abandoned property devolved on defendant as such there was no justification for the plaintiff to stop the remaining balance of 75% of the bid amount which had to be paid in three equal instalments nor the plaintiff has brought on record any cogent reason to show that his silence was justified and lawful which prevented him to deposit the instalment of auction price, as such Article 120 of the Limitation Act is applicable to the case of the plaintiff which provides a period of six years for filing of the suit, for which no period of limitation is provided elsewhere in the schedule, from the time when the right to sue accrues as in the present suit right to sue accrues to the plaintiff when he was declared successful bidder by issuance of letter of acceptance, Annexure "C", by the defendants and the present suit has been filed on 7-4-2006 which shows that the suit has been filed after expiry of limitation period.
'It is also not disputed by the plaintiff that he did not apply to the defendants for refund of the amount of Rs,3,50,000 deposited by him. The defendants have brought on record the letters dated 21-9-2000, 7-10-2000, 14-10-2000 and 4-11-2000 wherein the plaintiff was persistently demanding the return of his amount deposited by him with the defendants and the said letters show that the plaintiff had no mind to deposit the instalments of 75% of the bid amount in three instalments to the defendants and subsequent claim of service of notice on defendants through his counsel appears to be concocted story and after-thought for the reason that now-a-days the prices of the properties have been abnormally enhanced.
' This brings me to consider as to whether the material available on record could be considered by the Court to invoke the provision of Order VII, rule 11, C.P.C. As the defendant in their written statement have also drawn the true picture of the case coupled with the attitude and conduct of the plaintiff as well as his irresponsibility in purchase of the property in dispute and have also filed admitted letters written by the plaintiff to the defendants for refund of his amount of Rs,3,50,000.
The case-law has now liberally interpreted the provisions of Order VII, rule 11, C.P.C. And the Honourable Supreme Court in the case of S.M. Shafi Ahmed Zaidi through legal heirs v. Malik Hassan Ali Khan through legal heirs reported in 2002 SCMR 338 while considering the scope of Order VII, rule 11, C.P.C. Was pleased to observe that besides the averments made in the plaint other material available on record which on its own strength was legally sufficient to completely refute the claim of the plaintiff could also be looked into for the purpose of rejection of plaint. It is further observed by the Honourable Supreme Court that it is not necessary that other material shall be taken as conclusive proof of the facts stating therein but it actually moderates that other material on its own intrinsic value be considered along with the averments made in the plaint. The dictum laid down by the Honourable Supreme Court in the case of S.M. Shafi Ahmed Zaidi (supra), therefore, fully empowers the Court to consider other relevant material also while invoking the scope of Order VII, rule 11, C.P.C. And may consider the other allied materials relating to resolve controversy in between the parties. In the present case, as discussed above, the plaintiff participated in the auction on "as is where is" basis and despite of his full knowledge of the occupancy of the property in question, he not only participated in the auction but he was also declared as successful bidder but he subsequently changed his mind and pressed for return of his amount of Rs,3,50,000 through letters stated above and said letters are sufficient proof to reflect on the intention of the plaintiff not to pay the remaining balance 75% of bid amount as per condition precedent to auction and these letters are very material to resolve the controversy of the present case.
' In the case of Ume Aiman and others v. Muhammad Yousuf and others reported in 2002 CLC 1620, this Court while considering the scope of Order VII, rule 11, C.P.C. Was pleased to observe that in appropriate cases even contents of written statement/affidavits may be looked into when considering application under Order VII, rule 11, C.P.C. Which observation of this Court is also attracted to the circumstances of the case in hand.
' The case of S.M. Shafi Zaidi (supra), as well as the case of Ume Aiman (supra), fully empowers the Courts to consider the averment contained in the plaint along with admitted documents as well as contents of the written statement and reject the plaint if said material is sufficient to reject the plaint. In the present case, I find that the ratio of the aforesaid cases is fully applicable under the circumstances of the present case and the suit of the plaintiff appears to be barred under Article 120 of the Limitation Act as well as because of his act and conduct by addressing letters to the defendants for refund of amount, he disqualified himself to maintain the suit and the suit cannot be finally decreed in his favour in view of aforesaid reasons. The plaint is, therefore, rejected under Order VII, rule 11, C.P.C., with no order as to cost.
Plaint rejected.
2009 e L C 241 [Peshawar] Before Syed Yahya Zahid Gillani, J Maulana MUHAMMAD IDREES----Petitioner versus FAZAL SAID KHATTAK and others----Respondents Civil Revisions Nos.40 and 7 of 2006, decided on 21st August, 2008.
Specific Relief Act (I of 1877)--- ----S. 42---Oaths Act (X of 1873), Ss.6 & 8---Suit for declaration---Offer to take oath---Decision on special oath---When evidence of the plaintiff was partly recorded, defendant moved an application wherein he offered that if the plaintiff and his son took oath before court, placing their hands on Holy Qur'an that disputed shop was not sold by the plaintiff in 1974 and no sale consideration was received by the plaintiff from defendant, then defendant would have no objection on passing decree in favour of the plaintiff---Trial Court recorded statements of the parties, and oath was administered; and in consequence suit was decreed---On filing appeal by the defendant, Appellate Court, set aside judgment and decree of the Trial Court and remanded case for trial and decision on merit-- -Appellate Court was of the opinion that oath was not administered according to the offer--- Validity---Trial Court had properly performed the duty of recording statements of the parties--- Parties also, during the period intervening between the application of defendant for oath and actual oath taken, had sufficient opportunity to cool mindedly contemplate over the offer and acceptance---None of them could resile from their considered decision to get the case decided on oath---Oath in the case was taken exactly in accordance with offer made and explained in the statement of the defendant---Since the offer of oath extended by the defendant was accepted by the plaintiff and his son and oath was taken in open court exactly according to the demand, it was binding on the defendant---Judgment of Appellate Court was violative of settled law---Defendant had to face the result of his offer and the consequent oath taken by the plaintiff as law did not allow defendant to resile therefrom---Appellate Court could not appreciate and apply law in disposal of appeal and setting aside the judgment and decree of the Trial Court---Impugned judgment of the Appellate Court, was set aside and that of the Trial Court was restored.
[pp. 243, 244, 248, 249, 250] A, B, C, D, E, F, G & H 1985 CLC 72; 1972 CLC 623; PLD 1996 Lah. 354; Bhore Khan v. Noor Din PLD 1993 Pesh. 72; Firm Charagh Hussain v. Khawaja Habib Joo PLD 1983 SC (AJ&K) 86; Khan Sher v. Mst. Kabla and another PLD 1988 Pesh. 86; Muzaffar Ali and 2 others v. Ch. Asghar Ali 1991 CLC 2110; Rehmatullah v. Nasir Khan and 7 others 1991 MLD 101; Nazir Ahmad v. District Judge, Laiah PLD 1986 Lah. 137; Muhammad Shahbaz v. Ghulam Rasool 1987 CLC 1512; PLD 1990 SC 841; Mahmood Ali Butt v. Inspector-General of Police, Punjab and 10 others PLD 1997 SC 823; Mst. Asifa Sultana v. Honest Traders, Lahore and another PLD 1970 SC 331; Muhammad Akbar and another v. Muhammad Aslam and another PLD 1970 SC 241; Attiqullah v. Kafayatullah 1981 SCMR 162; Muhammad Mansha and 7 others v. Sakhi Muhammad and others PLD 1996 SC 237; Maulvi Muhammad Ramzan v. Muhammad Ismail 1982 SCMR 908; Saleem Ahmad v. Khushi Muhammad 1974 SCMR 224 and Najibullah v. Fazal Karim 1997 SCMR 1085 ref. Hamid Hussain Khan for Petitioner. Nazir Khan for Respondents. Date of hearing: 19th May, 2008.
' SYED YAHYA ZAHID GILANI, J.--- This civil revision (Civil Revision No,40 of 2006) and the connected Civil Revision No,7 of 2006 titled Maulana Muhammad Idrees v. Gul Hassan are proposed to be decided by this single judgment because both arise from judgment and decree dated 16-11-2005 of learned Additional District Judge, Nowshera whereby he decided two connected' appeals.
2. The plaintiff/petitioner Maulana Muhammad Idrees claims to be owner of the shop specified in the plaint. He allegedly entered into agreement dated 29-6-2002 to sell the shop to defendant/respondent Fazal Said Khattak. Possession of the shop was delivered to Fazal Said Khattak but the sale agreement ceased to exist due to alleged nonpayment of sale consideration.
Fazal Said Khattak has rented out the shop to one Gul Hassan, who is now in possession thereof, and he is defendant/respondent in Civil Revision No,7 of 2006.
3. Maulana Muhammad Idrees instituted suit for declaration that since the sale agreement ceased to exist due to non-payment of sale consideration, he is entitled to take over possession of the shop from Fazal Said Khattak and his tenant Gul Hassan, along with recovery of rental income calculated @ Rs,2,000 per month.
4. Fazal Said Khattak contested the suit with the allegations that originally he purchased the suit shop from Maulana Muhammad Idrees for Rs,12,000 in the year 1974 and took over possession but later on since he resiled from the contract and refused to execute sale-deed, a Jirga was convened which enhanced the sale consideration to Rs,2,00,000 which was offered but again he resiled. Therefore, the suit is liable to dismissal.
5. Gul Hassan took the plea that he is tenant on behalf of Fazal Said Khattak defendant to whom he has paid security amounting to Rs,20,000 and paying him monthly rent @ Rs,2,000 regularly.
6. In the meanwhile Fazal Said Khattak instituted a counter-suit against Maulana Muhammad Idrees for specific performance of the agreement which was also contested. The trial Court consolidated both the Suit No,88/1 Nim titled Maulana Muhammad Idrees v. Fazal Said Khattak and No,123/1 titled Fazal Said Khattak v. Muhammad Idrees and framed consolidated issues for trial.
7. Evidence of the plaintiff was partially recorded when Fazal Said Khattak moved an application on 21-2-2005 wherein he offered that if the plaintiff Muhammad Idrees and his son Misbah-ul-Islam take oath in front of Court, putting hands on Holy Qur'an, that the disputed shop was not sold in the year 1974 and no sale consideration was received from defendant (Fazal Said Khattak), the defendant shall have no objection on passing decree in favour of plaintiff (Maulana Muhammad Idrees).
8. The aforesaid offer was accepted. The trial Court recorded statements of Fazal Said Khattak, Maulana Muhammad Idrees and his son Misbah-ul-Islam. The oath was administered, and in consequence thereof, Kulsoom Azam, Civil Judge-II, Nowshera vide order, dated 5-3-2005 decreed the suit of Maulana Muhammad Idrees bearing No,88/1. On the other hand, Suit No,123/1 instituted by Fazal Said Khattak was dismissed.
9. This decision was challenged by Fazal Said Khattak and his tenant in two Appeals Nos.13/3 of 2005 and 14/13 of 2005 which were accepted by Mr. Fazal Subhan, Additional District Judge-III, Nowshera on 16-11-2005 and the suits were remanded for trial and decision on merits.
Consequently, the judgments and decrees of the trial Court were set aside and the cases were remanded for trial and decision on merits.
10. Learned Court of appeal was of the opinion that the oath was not administered strictly according to the offer and the right of tenant Gul Hassan was also involved which needed determination. In this background Maulana Muhammad Idrees has filed these two separate revision petitions against Fazal Said Khattak and Gul Hassan which are being disposed of by this single judgment.
11. Learned counsel for the petitioner argued that it was a special oath offered by Fazal Said Khattak which was accepted by the petitioner and his son. The statement recorded by the trial Court would reveal that the oath was administered exactly according to offer. Now the provisions of Oath Act, 1873 shall apply and Fazal Said Khattak cannot resile from the oath and he shall have to face the consequences. As far as the case of Gul Hassan is concerned, he has admittedly entered into possession of the shop as tenant on behalf of Fazal Said Khattak. When Fazal Said Khattak has lost his alleged claim and right over the shop, Gul Hassan would also have to leave possession which he is enjoying on behalf of Fazal Said Khattak. If there is any contractual obligations, in-between Gul Hassan and Fazal Said Khattak, that can be settled between them, but Gul Hassan cannot remain in possession of the shop when Fazal. Said Khattak lost his claim. Concluding his arguments, learned counsel for the petitioners agitated that the decree passed by the trial Court was in fact a consent decree and not appealable. Learned Appellate Court has thus, exercised powers not vested in it. He placed reliance on 1985 CLC 72 and 1972 CLC 623.
12. Learned counsel for the respondent supported the views of learned Appellate Court and placing reliance on case reported in PLD 1996 Lah. 354(b) contended that the decree under Article 163 of Qanune-Shahadat cannot be termed as consent decree. The Appellate Court could competently examine whether requisite conditions were fulfilled or not. The main stress was placed on the point that the oath taken by the respondent Maulana Muhammad Idrees and his son was not in accordance with the offer.
13. First of all it is required to be mentioned that the case cited by the learned counsel for the petitioners and respondent (mentioned above) pertain to Honourable Lahore High Court and according to latest view reported in PLD 1996 Lah. 354, the appeal and revision have been held competent at least to examine whether the requisite conditions pertaining to the oath were fulfilled or not.
14. Our Peshawar High Court has delivered a very exhaustive judgment in this regard in the case of Bhore Khan v. Noor Din PLD 1993 Pesh.
72. In this judgment authored by Mr. Justice Qazi Muhammad Farooq, a clear line has been drawn between decision on oath taken place under Article 163 of Qanun-e-Shahadat and a decision on oath under the provisions of Oaths Act, 1873. It has been explained that in technical terms the oath referred to in Article 163 of Qanun-eShahadat, 1984 is a"general oath" and the oath provided by the Oath Act, 1873 is a "special oath". Both are diametrically opposed to each other. For ready reference I would like to quote the relevant paras. Nos.5 to 7 of this judgment, for convenience:--- "(5) The first contention raised by the learned counsel for the petitioner is misconceived as the oath taken by the respondent having emanated from the offer made by the petitioner on his own free will and accord is governed by sections 8 to 11 of the Oaths Act, 1873 and not by Article 163 of Qanun-e-Shahadat, 1984. The oath within the contemplation of sections 8 to 11 of the Oaths Act, 1973 stems from a voluntary agreement between the parties and when taken has a binding effect leaving the parties making the offer with no choice to turn around and strike a discordant note as observed in Maulvi Muhammad Ramzan v. Muhammad Ismail 1982 SCMR 908, Firm Charagh Hussain v. Khawaja Habib Joo PLD 1983 SC (AJ&K) 86, Khan Sher v. Mst. Kabla and another PLD 1988 Pesh. 86 and Muzaffar Ali and 2 others v. Ch. Asghar Ali 1991 CLC 2110 while the oath envisaged by Article 163 of the Qanun-e-Shahadat, 1984 is entailed by the initiative taken by the plaintiff who takes an oath in support of his claim first and then on his application the Court calls upon the defendant to deny the claim on oath and in any event the Court is not precluded from recording evidence of the parties and deciding the case on merits as observed in Rehmatullah v. Nasir Khan and 7 others 1991 MLD 101, Nazir Ahmad v. District Judge, Laiah PLD 1986 Lah. 137 and Muhammad Shahbaz v. Ghulam Rasool 1987 CLC 1512. In technical terms the oath referred to in Article 163 of the Qanune-Shahadat, 1984 is a general oath and the oath provided by the Oaths Act, 1873 is a special oath and both are diametrically opposed to each other.
(6) The second contention is no better than the first one because the oath taken by the respondent was not exacted from him but it was the result of a mutual agreement of the parties which is permissible under the Oaths Act, 1873. Needless to mention that the expression "exaction" contains an element of demand as of right and the provisions of the Oaths Act, 1873 providing for decision of the case on oath taken by the plaintiff in the wake of an offer made by the defendant have not so far been struck down as repugnant to the Injunctions of Islam.
(7) The last contention is also without substance. The authorities PLD 1990 SC 841 cited by the learned counsel for the petitioner is an instructive authority which has not imposed an embargo on the decision of a case on oath in accordance with the provisions of sections 8 to 11 of the Oaths Act, 1873 but has only laid down guidelines for implementing the agreement between the parties in respect thereof which are worded thus:- "The need for recording separate statements of the parties in respect of the offer and acceptance made in such cases deserves to be over emphasized, for such a procedure would give parties some short time to think over the matter and extricate themselves from hastily decisions, before appending their signatures to their statements."
' The record of the case in hand clearly points out that the learned trial Court had not acted with lightning rapidity but had first recorded separate statements of the parties on oath in respect of the offer and acceptance and then taken the matter to its logical end. The petitioner had thus, plenty of time to think over the matter and resile from the offer before appending signature to his statement but he stuck to his offer and as such he must thank himself alone for the consequences.
The procedure adopted by the learned trial Court indubitably conforms to the guidelines highlighted above, therefore, a case for interference is not made out."
15. Now it is to be seen that the oath offered and taken in this case falls under which category. If we put a glance over the application of Fazal Said Khattak, it would clearly indicate that it does not fall under Article 163 of Qanun-e-Shahadat because under this Article the plaintiff himself takes the oath and then the opposite party is asked by the Court to rebut the claim with the counter-oath. In the application, Fazal Said Khattak has not offered himself to take oath. Actually he has offered the opposite party to take oath with the consent that it shall be binding on him and that he shall not press his claims and defence. So Article 163 of Qanun-e-Shahadat is not attracted in this case and it is a special oath under the Oaths Act, 1873.
16. Now it is to be seen that whether the oaths taken by Maulana Muhammad Idrees and his son are in consonance with the offer. In this regard we must keep in mind that the application was moved on 21-2-2005 and the oath was administered after about two weeks, on 5-3-2005. The trial Court very aptly decided to record the statement of Fazal Said Khattak to exactly bring on record his offer. This was essential in the sense that the application dated 21-2-2005 was written by someone else and Fazal Said Khattak could raise objection that it was not properly drafted. The statement of Fazal Said Khattak is reproduced below for convenience. {{URDU TEXT]}}
17. The same day Maulana Muhammad Idrees and his son Maulana Misbah-ul-Islam accepted the offer and took oath in the words recorded in their statements which are also reproduced below for ready reference. {{URDU TEXT]}}
18. There is no need of further discussion because comparison of aforementioned statements can easily show that the oath was taken exactly in accordance with the offer made and explained in the statement of Fazal Said Khattak. Misbahul Islam has further specifically referred the alleged transaction of year 1974 which has been mentioned in application of Fazal Said Khattak for administering oath. The trial Court has properly performed the duty of recording their statements the necessity of which has been over emphasized in the case-law. The parties also, during the period intervening between the application for oath and the actual oath taken, had sufficient opportunity to cool mindedly contemplate over the offer and acceptance. Now none of them can resile from their considered decision to get the case decided on oath.
19. The next, it is to be seen that what would be the result of this process. A similar oath was construed to be ,a special oath under the Oaths Act, 1873 by the Honourable Supreme. Court of Pakistan in the case of Mahmood Ali Butt v. Inspector-General of Police, Punjab and 10 others reported in PLD 1997 SC 823(b) at page 831. The relevant paragraph 10 is reproduced below for ready reference:--- "So, the special oath is administered to a party or nominated person or a witness when a party offers to bind itself to the statement to be made on oath by the other party. In Mst. Asifa Sultana v.
Honest Traders, Lahore and another PLD 1970 SC 331 it was observed that the offer to abide by the oath of opposite party and its acceptance by the other party was in the nature of an agreement and the question whether the party who offered can resile from it depends on the facts and circumstances of each case. Again, in the cases of Muhammad Akbar and another v. Muhammad Aslam and another PLD 1970 SC 241, Attiqullah v. Kafayatullah 1981 SCMR 162, Muhammad Mansha and 7 others v. Sakhi Muhammad and others PLD 1996 SC 237, Maulvi Muhammad Ramzan v.
Muhammad Ismail 1982 SCMR 908, Saleem Ahmad v. Khushi Muhammad 1974 SCMR 224, the principle laid down is that a party offering to have a cause decided on oath and undertaking to abide by the special oath of a person (party or not a party to the suit) cannot be allowed to resile from it, for it amounted to a binding contract unless it was found to be void or stains frustrated. So validity of decision given on the basis of special oath was upheld under the provisions of Oaths Act, 1873. It will, therefore, be seen that "special oath" made basis of the decision in the instant case is not governed by Article 163 of the Qanun-e-Shahadat and reference to Article 163 and alleged violation of any supposed prescribed procedure urged by the learned counsel is misconceived."
20. It is thus, concluded that since the offer of oath extended by Fazal Said Khattak was accepted by Maulana Muhammad Idrees and his son and the oath was taken in the open Court exactly according to the demand, therefore, it is now binding in the light of the decision of Honourable Supreme Court (ibid).
21. Similar view has been expressed in another case decided by the Honourable apex Court titled Najibullah v. Fazal Karim 1997 SCMR 1985. I, therefore, hold that the judgment of learned Appellate Court, in this regard is violative of law settled by Honourable apex Court and Fazal Said Khattak shall have to face the result of his offer and the consequent oath taken by the opposite party, as the law now does not allow him to resile.
22. As far as the case of Gul Hassan, as reflecting in his written statement is concerned, he simply has a claim of security deposited with his landlord Fazal Said Khattak, as he then was, on the basis of rent agreement. Gul Hassan cannot perpetuate or prolong his possession on this score for having no vested right to possess the shop. Since his agreement of rent was with Fazal Said Khattak, he can demand his security from Fazal Said Khattak, and if refused, can approach proper forum for recovery of the security. He also has some claim of improvement in the shop which again does not provide him a vested right to continue his possession. He can privately settle the removal of fixtures and compensation for the permanent improvement, if any, or such matters can be settled in the executing Court at the time of execution of decree in favour of Maulana Muhammad Idrees. There is no contractual obligations on Maulana Muhammad Idrees against the tenant of Fazal Said Khattak, namely Gul Hassan. The appeal of Gul Hassan could also not be legally accepted by the learned Appellate Court to remand his case for further proceedings.
23. With these observations and the discussed legal position it is held that the learned Appellate Court could not appreciate and apply the G settled law in disposal of the appeals and setting aside the judgment and decree of trial Court. The impugned judgment of the Appellate Court thus, cannot sustain.
24. Consequently, both the revision petitions are accepted, the impugned consolidated judgment of learned Court of appeal is set aside and that of the trial Court is restored. Parties are left to bear their own costs, in view of legal controversies involved herein.