ATTAULLAH KHAN J.---Through this revision petition, petitioner has impugned the judgment/decree dated 24-6-2005 passed by learned Additional District Judge-V, Bannu vide which the appeal of petitioner was dismissed and maintained the judgment/decree dated 25-1- 2005 vide which the suit of the petitioner was dismissed.
2. Brief facts of the instant revision are that petitioner filed a suit for possession through enforcement of his superior right of pre-emption in respect of property purchased by respondents through Mutation No,2837 attested on 24-3-2004. The petitioner contended that he had superior right of pre-emption being co-owner in respect of the suit land, which has been purchased by the respondents in lieu of Rs,1,45,000. 'However, to defeat his right of pre-emption the respondents with the connivance of vendor have mentioned an exaggerated amount of Rs,7,25,000 in the impugned mutation. He further claimed that he has fulfilled the requirements of talbs in. accordance with law and thus he is entitled for grant of decree in his favour.
3. The respondents appeared in the trial Court and contested the suit by filing their statement. The trial Court from the divergent pleadings of the parties, after framing issues directed the parties to A adduce their respective evidence and after hearing arguments of the counsel of the parties, dismissed the suit of the petitioner vide judgment/decree dated 25-1-2005. The petitioner dissatisfied from the above mentioned judgment/decree preferred an appeal before the appellate Court, which was also dismissed on 26-6-2005, hence the petitioner filed the instant revision petition.
4. Learned counsel for the petitioner argued that appellate Court has wrongly drawn a conclusion that the pre-emptor has waived of his right of pre-emption by refusing to purchase the suit land.
According to learned counsel of the petitioner no notice under section 12 of the N.-W.F.P. Pre- emption Act, 1987 has been given to him, therefore, no question of waiver arises. He also objected both the impugned judgments/decrees by alleging that the statements of DW-1 Umar Hayat Khan, DW-2 Himatullah Jan, DW-3 Khan Saraf and DW-4 Haji Maiz Khan have been recorded by the trial Court without administering Oath to them. According to learned counsel it is violation of Oaths Act, therefore, illegality has been committed by the trial Court, which is not curable, hence, both the judgments/decrees of the lower Courts are illegal. He stressed this point rigorously.
5. On the other hand, the stand of learned counsel for respondent is that the appellate Court has correctly pointed out the matter in issue by holding that the preemptor has waived his right of pre-emption by refusing to purchase the suit land. Regarding administering Oath to the defendants witnesses by the trial Court he submitted that it is the act of the Court for which the party should not suffer.
6. Arguments heard and record perused, in the light of which my opinion is as under.
7. I would confine' to the second point raised by counsel for the petitioner i,e, administering Oath to the defendants witnesses. It is an admitted fact that the statements of defendants witnesses have been recorded without Oath. As per counsel of the petitioner the entire proceedings are not in accordance with law, therefore, the case is liable to be remanded back to the trial Court to record the defence evidence on Oath. The issue is covered under section 5 of Oaths Act, 1873 which is reproduced below:-- "(5) Petition dismissed. Oaths or affirmation to be made by witnesses interpreters; jurors. Oath or affirmation shall be made by the following persons:-
(a) all witnesses, that is to say, all persons who may lawfully be examined, or give, or be required to give, evidence by or before any Court or persons having by law or consent of parties authority to examine such persons or to receive evidence;"
8. The above provision shows that the witnesses to be examined in the Court shall take Oath. The above provision further reveals that Court has no option but to record the statement of witness after administering Oath or 'affirmation.
9. It is the duty of the Judge to administer Oath to witness. If he examines him without administering Oath it would definitely reflect adversely on the evidence. Best way is to remand such like case to the Court concerned for recording evidence of the witnesses where Oath was not administered to them because the omission committed by Judge or Court should not prejudice any of the party. The omission to administer Oath to a witness will amount to an illegality which cannot be cured..
10. Keeping in view the above discussion and the provision of section 5 of Oaths Act, 1873 I am of the view that the evidence of four witnesses of the defendants/respondents have been recorded without administering Oath, therefore, has become inadmissible and also amounts to illegality. In order to remove this illegality I have no option but to accept this revision petition and set aside the both the impugned judgments/decrees of the two Courts below and remand the case back to the trial Court with direction to administer Oath to the four witnesses of the defendants and decide the case after hearing arguments of the counsel of the parties within three months positively because the case is too old and pertains to the year, 2004. The office is directed to send the record to the trial Court forthwith.