' ALI AKBAR QURESHI, J.---This judgment shall dispose of this petition as well as the connected Writ Petition No,1613/2007, as common question of law and facts are involved in both these matter.
2. This writ petition is directed against the judgment and decree dated 27-3-2006 and 20-12-2005 whereby the suit filed by the petitioner to recover the dowry articles was partially decreed.
3. The petitioner of the instant petition, brought a suit to recover the dowry articles on the ground that the dowry articles were given to her at the time of A marriage, brought into the house of the respondent; the matrimonial tie because of the conduct of the respondent could not sustain; the respondent without any cause and reason, expelled her from his house and has refused to return the dowry articles lying with him. The suit was contested by the respondent on legal as well as on factual side. Anyhow, the respondent while filing the written statement admitted the delivery of dowry articles.
4. On account of the pleadings of the parties, the learned trial Court framed two issues.
5. During the proceedings, the respondent filed an application on 16-1-2003 Annex-E to the effect, that he is ready to return the dowry articles if the petitioner takes oath on Holy Quran pertaining to the possession of dowry articles allegedly possessed by the respondent. The said application was replied wherein the petitioner accepted the offer to decide the matter on oath as suggested by the respondent. The respondent filed another application on the same ground, which was too replied by the petitioner and again accepted the offer to resolve the controversy on oath.
6. As revealed from the contents of the memo. Of appeal, the respondent resiled/ backed out from his offer/ undertaking, and the learned trial Court decided the matter on merits without disposing of the applications to decide the matter on oath and lastly the suit of the petitioner was partially decreed.
7. The judgment and decree dated 27-3-2006 was challenged by way of independent appeals before the appellate Court, wherein the judgment passed by the learned Judge Family Court in favour of petitioner, was maintained hence this petition.
8. The respondent has also filed a Constitutional petition bearing No,1613 of 2007 against the judgment passed by the learned appellant Court, which is also being disposed of along with this petition.
9. It is contended on behalf of the petitioner, that admittedly an application was filed by the respondent wherein it was offered to decide the case on oath, the said offer was accepted by the petitioner but thereafter the respondent resiled from his undertaking but the learned Courts below without taking into consideration and disposing of the undertaking given by the respondent, have passed the impugned judgment which is in any case unsustainable in law. Next contended, that the undertaking was given by the respondent to decide the matter on oath, therefore, he was not permitted by law to resile from his undertaking in view of the principle laid down by the Honourable Supreme Court of Pakistan reported in 1998 PSC 53 and PLD 2006 SC 457 and unreported judgment passed by this Court in Writ Petition No,860912008.
10. Conversely, the learned counsel for the respondent controverted the contention pertaining to decide the matter on oath and submitted that in fact the petitioner was not ready to decide the matter on oath. On merits, learned counsel submitted that the judgment and decree is not sustainable because of the reason that the respondent has already returned the dowry article.
11. Heard.
12. From the perusal of the record which was examined with the able assistance of the learned counsel for the parties, admittedly an application was filed by the respondent to decide the fate of the lis on oath. The offer was hurriedly accepted by the petitioner by filing the reply wherein she categorically stated that she is ready to take oath on Holy Quran to the effect that she is entitled to recover the dowry articles as per the list. The contents of the memo. Of appeal filed by the petitioner reveals that the respondent E resiled from his undertaking and finally the case was decided on merits. It is very astonishing and strange that both the learned Courts below have not said even a single word in the judgments regarding the offer and acceptance by the parties to decide the lis on oath.
13. To decide the question of law involved in this case, it is necessary to survey the relevant provisions of law applicable on the case.
14. As regard, the conduct of the respondent to resile from his oath, is to be seen in view of sections 8 and 9 of the Oaths Act, 1873 which read as under:-- "8" If any party to, or witness in, any judicial proceeding offers to give evidence on oath or solemn affirmation in any form common amongst, or held binding by, persons of the race or pursuasion to which he belongs, and not repugnant to justice or decency, and not purporting to affect any third person, the Court may, if it thinks fit, notwithstanding anything hereinbefore contained, tender such oath or affirmation to him."'
"9" If any party to any judicial proceeding offers to be bound by any such oath or solemn affirmation as is mentioned in section 8, if such oath or affirmation is made by the other party to, or by any witness, in such proceedings, the Court may, if it thinks fit, ask such party or witness, or cause him to be asked, whether or not he will make the oath or affirmation.
15. Sections 10 and 11 of the aforesaid Act is also relevant to resolve the controversy. The same is reproduced hereunder:-- "10"If such party or witness agrees to make such oath or affirmation, the Court may proceed to administer it, or, if it is of such a nature that it may be more conveniently made out of Court, the Court may issue a Commission to any person to administer it, and authorize him to take the evidence of the person to be sworn or affirmed and return it to the Court.
"11"The evidence so given shall, as against the person who offered to be bound as aforesaid, be conclusive proof of the matter stated."
16. The Honourable Supreme Court of Pakistan while interpreting the aforesaid provisions of Oaths Act in Mahmood Ali Butt v. Inspector General Police, Punjab, Lahore and 10 other PLD 1997 SC 823 has laid down the principle:-- "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 stands frustrated. So validity of decisions 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 covered 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."
17. Further in Para-11 of the aforesaid judgments:- "It is well established that breach of undertaking to the Court amounts to contempt of Court. The petitioner by challenging the order passed in fact seeks to avoid the liability so incurred by him.
Sustainable justice has been done and on merits nothing was urged.
' Hence interference is not warranted."
18. Following the principle laid down by the Honourable supreme Court of Pakistan in the aforesaid judgment, it can safely be held, that the respondent, who himself offered to the petitioner to take oath on Holy Quran to decide the lis cannot be permitted or allowed to resile or back out from his offer. It has also been laid down in the judgment supra, that breach of undertaking to a Court is amount to contempt of Court.
19. For what has been discussed above, this Constitutional petition is allowed; the judgment and decree dated 27-3-06 and 20-12-05 passed by the learned Courts below is set aside; the matter is remanded to the learned trial Court/Judge Family Court to decide the case by administrating the oath as offered by the respondent.
20. Since, it is a family matter, both the parties shall appear before the learned Judge Family Court on 18-7-2009 and the learned trial Court shall fix the date to administer the oath and try to dispose of the matter expeditiously. No order as to costs.