' RAUF AHMAD SHEIKH, J.---The petitioner has assailed the vires of judgment and decree dated 7-4- 2009 passed by the learned Civil Judge, Sheikhupura, whereby a suit for declaration and consequential relief filed by her, was dismissed on the basis of special oath of the respondent and judgment and decree dated 10-7-2009 passed by the learned ADJ, Sheikhupura, whereby an appeal filed by her was also dismissed.
2. The facts in brief as emerge on perusal of the record are that the petitioner filed a suit for declaration to the effect that she is owner in possession of 1/2 share of the disputed property fully described in para No.2 of the plaint as daughter of Chawli and entries in the Revenue Record in respect of this land are illegal, wrong, void and ineffective qua her rights. As consequential relief a decree for perpetual injunction restraining the respondent from alienating the property in any manner was also prayed for. It was stated that Chawli father of the parties died in the year, 1934. He had no male issue so the property was inherited by Sardaran Bibi mother of the parties as limited owner under the custom and on her demise, the same devolved upon the parties as limited owners till marriage or demise and Mutation No.94 dated 25-4-1942 was accordingly sanctioned in their favour; that the petitioner contracted marriage in 1943 and thereafter, Mutation No.110 dated 31-3- 1943 as limited owner was sanctioned in favour of respondent: The respondent also contracted marriage in 1949 and her rights as limited owner also terminated so the petitioner and respondent became owner of the property in equal shares because there was no other heir of their late father Chawli. It was contended that four months prior to the institution of the suit, she asked the Patwari to supply the copy of the Register of Rights and learnt that her name does not appear in the Revenue Record. With these averments a decree as mentioned above was prayed for.
3. The defendant/respondent contested the suit. She admitted that after demise of her mother, the land was mutated in favour of Mst. Khairan Bibi, who died without any male issue after creation of Pakistan so the defendant/respondent is the sole heir of Chawli and is exclusive owner in possession of the property. After framing of the issues and recording the evidence, the suit was fixed for arguments.
4. The learned counsel for the plaintiff/petitioner addressed the arguments on 10-1-2009 and then the suit was adjourned for arguments of the learned counsel for the defendant/respondent.
Thereafter, the file remained pending for arguments on some miscellaneous applications and finally on 7-4-2009, the learned counsel for the petitioner made a statement that if the defendant/respondent makes a statement on special oath on Holy Quran to the effect that the plaintiff/ petitioner is not her real sister and is not daughter of Mst. Sardaran Bibi and Chawli, her suit be dismissed. Mst. Hajran Bibi made a statement to the effect on oath that she has heard the statement and admits the same and thereafter, the learned trial court observed that special oath on Holy Quran has been made by the defendant/respondent to the effect that plaintiff/petitioner is not her sister so the suit is dismissed. The appeal filed by the petitioner was dismissed.
5. Nobody had appeared on behalf of the respondent on 21-10-2011, 12-3-2012, 6-4-2012 and today.
The learned counsel for the petitioner has contended that the petitioner never authorized her learned counsel to make statement for decision of the suit on special oath; that the learned trial court also did not record the statement on special oath in accordance with law and as such the same was meaningless so was not sufficient to prove or disprove any fact and that both the Courts below have committed material illegality/irregularity in non suiting the plaintiff/petitioner. In support of the contentions raised reliance is placed on PLD 2002 SC 655.
6. I have heard the arguments advanced by the learned counsel for the petitioner and perused the record carefully.
7. It is true that the learned counsel for the petitioner made an offer that if the respondent makes the statement on special oath on Holy Quran, the suit be decided in the light of the same but there is nothing on the record to show that he was given special instructions by the plaintiff/ petitioner to make any such statement. The power of attorney in favour of an Advocate does bear a clause that all acts done by the attorney would be deemed to have been done by the parties but the same pertains to the routine matters and a counsel is not authorized to make an offer for decision of the suit on special oath unless so instructed by the parties concerned in black and white. The respondent did not make any statement on special oath and her statement was confined only to the effect that she had heard the above statement and same was correct. In fact the statement made on special oath should have been reduced into writing verbatim andthen read over to the respondent and had she admitted the correctness of the same, then her signature/ thumb- impression should have obtained in token of correctness. The statement made by the learned counsel for the petitioner in this case was not authorized as he had no specific instructions in this regard, from the petitioner. Secondly, the statement made by respondent No.1 was not in accordance with the offer made so the provisions of sections 9 and 10 of the Oath Act, 1873 were not complied with. The impugned judgments and decrees are, therefore, not sustainable under the law and are hereby set aside. The suit is remanded to the learned trial court for its decision in accordance with law on the basis of evidence of the parties. The file be transmitted to the learned trial court through the learned District Judge, Sheikhupura. If the learned trial court does not exist at present, the learned District Judge should entrust the suit to some Court of competent jurisdiction.