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-e-Shahadat, 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.