' KH. IMTIAZ AHMAD, J.---This civil revision challenges the judgment and decree dated 9-7-1998 passed by the learned Civil judge 1st Class, Kahror Pacca District Lodhran, whereby the suit for specific performance of contract was decreed and the judgment and decree dated 2-4-1999 passed by the learned Addl. District Judge Lodhran, whereby the appeal was also dismissed.
2. The relevant facts for the disposal of this civil revision are that Faqir Hussain and Talib Hussain respondents herein filed a suit against Rana Khadim Hussain the predecessor of the present petitioners for specific performance of contract on 6-11-1996. The claim of the plaintiffs was that the land in dispute measuring 8 kanals fully mentioned in the head-note of the plaint was owned by the defendant, who in the month of March, 1992 entered into an agreement of sale with the plaintiff in the sum of Rs.1,40,000, out of which Rs.60,000 was paid as earnest money and the remaining amount was to be paid in instalments detailed of which is mentioned in para 2 of the plaint but the defendant resiled from the agreement and so it was prayed that the decree for the specific performance of contract or in the alternative for the recovery of Rs.1,40,000 be passed in favour of the plaintiffs and against the defendant. The suit was resisted by the defendant, who filed the written statement wherein he denied that he ever entered into an agreement of sale or received any earnest money. It may be mentioned here that according to the plaintiffs, the agreement was oral and even no receipt for the payment of amount was reduced into writing. Out of the pleadings of the parties, the learned trial Court framed the issues on 6-3-1997. However, on 3-4-1997, both the plaintiffs made the statements that if one of the brothers of the defendant namely Bashir Ahmad, Haji Nazir Ahmad and Atta Hussain take special oath on Holy Quran that the defendant had not received the sale-price, the suit be dismissed. On the same day, the defendant made the statement that he had heard the statement of the plaintiffs and that he would administer special Oath on Holy Quran to one of his brothers otherwise the suit of the plaintiffs be decreed.
Accordingly, the suit was adjourned for 8-5-1997 for administering special oath on Holy Quran to one of the brothers of the defendants. On 8-5-1997, the defendant made the appearance and informed that his brother out of three brothers had not come and requested for adjournment that he would bring one of his brothers on the next date. Accordingly, the case was adjourned for 17-6- 1997. On 17-6-1997, the defendant informed the Court that none of his brothers had come to the Court. Upon this, the learned trial Court passed the order that the defendant vide his statement recorded on 3-4-1997 had undertaken that he would bring one of his brothers for administering special oath on Holy Quran but he has failed to bring any of his brothers, so the suit stands decreed. Against this judgment and decree the defendant Rana Khadim Hussain preferred the appeal in which beside other grounds, it was also mentioned that he had strained relations with his brothers and on his asking they were not appearing in the Court and so he could not be penalized for that nor he can legally be compelled to take special oath on Holy Quran. The learned District judge, Lodhran vide order dated 20-3-1998 accepted the appeal and remanded the case back to the learned trial Court with the following observations:-- "If Khadim Hussain had failed to produce any out of his brothers, it was incumbent upon the learned trial Court to have summoned them through process of law. In these circumstances, I accept the appeal, set aside the impugned judgment and decree and remit the case back to the learned trial Court to decide the same afresh in accordance with the terms of proposal dated 3-4- 1997. If the appellant/ defendant does not produce any out of his brothers, the learned trial Court shall take efforts to procure the attendance of anyone out of three brothers of respondents and then decide the case in accordance with law."
3. Thereafter, the learned trial Court issued summons to all the three brothers of the defendant. One summon was jointly issued in the name of Bashir Ahmad and Haji Nazir Ahmad and the other summon was in the name of Atta Hussain. On both the summons, the Process Server made the reports on 27-5-1998 to the effect that they had refused to receive the summons and had informed him that they were not ready to take special oath on Holy Quran. After receiving the said report, the learned trial Court once again vide order dated 9-7-1998 decreed the suit by observing as under:-- "Adverting to the proceedings of main case, on 3-4-1997, the parties tied themselves to a decision of the suit dependant on the special oath on Holy Quran, Of course, the parties were tethered with the unequivocal proceedings through special oath on Holy Quran, therefore, I adhered to the original decree passed by my learned predecessor and decree the suit once again on account of failure of the defendant and his three brothers to depose on special oath on Holy Quran regarding receipt of amount of consideration. This overture casts shadows of doubt upon the defendant."
' Once again, feeling aggrieved, the defendant preferred an appeal on the ground that the learned trial Court had not complied with the direction of the learned appellate Court which remanded back the case and the impugned judgment and decree was illegal and against the law. The learned Addl. District Judge, Lodhran on the basis of reasons furnished by the learned trial Court dismissed the appeal vide the impugned judgment and decree dated 2-4-1999. Hence, the present civil revision.
4. The learned counsel for the petitioner contended that the defendant had bonafidely accepted the offer of the plaintiffs with regard to the special oath on Holy Quran by one of his brothers. He contended that if anyone of his brothers had made the statement on Oath, then the defendant was bound by that statement but in the present case, his brothers refused to come to the Court to make the statement on Oath and in such eventuality, there was no occasion for the learned trial Court to decree the suit merely on the ground that the defendant failed to produce his brothers before the Court. He contended that in the first round of appeal, even the appellate Court had observed while remanding the case back that if the defendant fails to produce his brothers, the learned trial Court should itself make the efforts to procure their attendance. He contended that though the summonses were issued but the report of the Process Server was accepted without even recording his statement and even the Court did not adopt the coercive measures for procuring their attendance. He submits that since the brother of the defendant had not made the statements on Oath before the Court nor appeared before the Court, so there was nothing for the trial Court to decree the suit on the said basis. However, the position would have been entirely different if any brothers of defendant had made the appearance before the Court, made the statement on Oath and then the defendant was naturally bound by the statement made on Oath by one of his brothers and thus both the courts below had committed patent illegality by decreeing the suit merely on the ground that the defendant had failed to produce one of his brothers. In this behalf he has also placed reliance upon AIR 1916 Lahore 262, PLD 1960 SC 301 and PLD 1975 Lahore 99 and also the provisions of section 12 of the Oaths Act.
5. On the other hand, the learned counsel for the respondents submitted that on .3-4-1997, the defendant had accepted the offer and had undertaken that he would administer Special Oath on Holy Quran to one of his brothers but since he has failed to produce his brothers, so the suit was rightly decreed. Lastly contended that all the points raised before this Court were not agitated before the appellate Court and so now the petitioner is debarred from raising the said pleas.
6. Arguments heard. Record perused.
7. As has been mentioned above that on 3-4-1997, both the plaintiffs had made the statements that if anyone of the brothers of defendant namely Bashir Ahmad, Haji Nazir Ahmad and Atta Hussain take special oath on Holy Quran that the defendant had not received the sale-price, his suit be dismissed. In this offer, there is no statement that otherwise his suit be decreed. It was only to the extent of dismissal of the suit of the plaintiffs. The defendant on the same day made the statement in the following words:- {{URDU TEXT}} ' However, it is established on the record that the brothers of the defendant did not appear in the Court. Before the Court, if they had made the appearance and had made the statement on Oath then the defendant was bound by his statement. However, in the present case, neither they appeared before the Court nor they made any statements that they were not ready to take Oath and in such eventuality, the defendant could not be penalized.
8. There is yet another important aspect of the case that in the first round of appeal, the appellate Court while remanding the case had specifically observed that if the defendant fails to produce one of his brothers, the learned trial Court should itself procure their attendance. Now the learned trial Court issued the summons but if according to the report of Process Server, which is also highly doubtful since the statement of Process Server had not been recorded by the learned trial Court that they refused to come to the Court, even then the learned trial Court should have adopted the coercive measures for the attendance of one of the brothers and the defendant was in fact relieved from his liability to produce them by the order of the appellate Court while remanding the case back to the learned trial Court, so merely on this ground, once again, the learned trial Court as well as the learned Appellate Court committed illegality that the defendant failed to produce his brother. It is appropriate to mention here section 12 of A the Oaths Act, which reads as under:- "12.Procedure in case of refusal to make Oath. If the party or witness refuses to make the oath or solemn affirmation referred to in section 8, he shall not be compelled to make it but the Court shall record, as part of the proceedings, the nature of the Oath or affirmation proposed, the facts that he was asked whether he would make it, and that he refused it, together with any reason which he may assign for his refusal."
' The provision of the above section also clearly shows that the Court may record the reasons if anyone refuses to make Oath on Holy Quran but in no way merely on this ground, the suit could be decreed.
9. The same preposition was considered by this Court in a case captioned as Haji Jan Muhammad and another v. Sher Dil and another (PLD 1975 Lahore 97). In the said case, the parties agreed that if Muhammad Khan be asked to make a statement on Oath regarding the nature of transaction then they would be bound by it. However, the said Muhammad Khan declined to take Oath but only stated that the land was acquired by exchange. The learned trial Court came to the conclusion that the refusal of Muhammad Khan to take the Oath that the land was acquired by exchange implies that the land had in fact been acquired by sale. In appeal, the learned District Judge vide its judgment and decree dated 22-4-1960 came to the conclusion that since Muhammad Khan had refused to take the Oath, it was not open to the trial Court to have drawn an inference that his refusal proved that the land had in fact been sold. The matter went to the High Court and this Court observed while deciding R.S.A. Dated 13-6-1974 as under:-- "The sole question is as to the effect of the refusal of Muhammad Khan to make a statement on oath. The law on this point is contained in section 11 of the Oaths Act, which provides that the evidence given by a person on oath on an offer made by a party to be bound by it shall, as against the person who offered to be bound as aforesaid, be conclusive proof of the matter stated. This would be the case if the party or witness accepts the offer to make a statement on oath. If, however, he declines to do so, the provisions of section 12 come into play which lays down that in case of such refusal, he shall not be compelled to make it, but the Court shall record as part of the proceedings, the nature of the oath or affirmation proposed, the facts that he was asked whether he will make it, and that he refused it, together with any reason which he may assign for his refusal.
In the present case, Muhammad Khan had refused to take the oath and, therefore, neither section 11 is attracted to the facts of the case nor can the refusal be taken as a substitute for proving that it was a sale and not an exchange."
' The present case is even entirely different. In the present case, the proposed persons who were to administer oath did not appear in the Court nor refused to take oath before the Court and in such eventuality, the offer and acceptance by both the parties was of no legal value and there was no option with the Court but to decide the case on merits.
10. In view of what has been said above, I have no hesitation to hold that both the Courts below committed illegality by decreeing the suit merely on the ground that the defendant failed to produce one of his brothers to take special oath on Holy Quran. The result is that this civil revision succeeds. The impugned judgments and decrees of both the Courts below i.e. Dated 9-7-1998 passed by the learned Civil Judge Kehror Pacca District Lodhran and the judgment and decree dated 2-4-1999 passed by the learned Addl. District Judge Lodhran are set aside and the case is remanded back to the learned trial Court with the direction to decide the case afresh on merits after affording the parties an opportunity to produce their evidence on the issues already framed by the learned trial Court. The parties are directed to appear before the learned trial Court on 31-3- 2011.