' KHAWAJA IMTIAZ AHMAD, J.---This writ petition under Article 199 of the Constitution of Islamic Republic of Pakistan is directed against the order dated 7-9-2012 passed by the learned Additional District Judge, Rawalpindi whereby while allowing the revision petition, he set aside the order of learned trial court dated 3-11-2011.
2. The relevant facts for the disposal of this writ petition are that the present petitioners filed a suit for rendition of accounts, recovery of mesne profits and permanent injunction against respondents Nos.2 to 5. The claim of the plaintiffs was that defendants Nos.1 and 2 were real brothers while defendants Nos. 3 and 4 were real sisters of plaintiffs and the parties were the only surviving legal heirs of deceased father Ch. Muhammad Sadiq Khan and their deceased brother Mr. Colonel (R)
Muhammad Masood Chaudhry who died on 9-3-1988 and 25-6-2008 respectively. It was further alleged that previously in a suit for partition the award was made rule of the court, that the said order was challenged before Lahore High Court Rawalpindi Bench which was allowed and then the matter went up to the august Supreme Court in Civil Appeals Nos.471 and 474 but the parties settled the matter through compromise and the august Supreme Court set aside the judgment of High Court and maintained the order of trial court dated 7-9-1987 subject to some modification and 52 plots allotted to the father of the plaintiffs were kept intact but since the father of the parties died and so they were joint owners but defendants Nos. 1 and 2 claimed their exclusive ownership of 52 plots on the basis of oral gift by their father and obtained ex-parte decree dated 25-1-1969 and the said ex parte decree was challenged through petition under section 12(2), C.P.C. Which was allowed and the ex-parte judgment and decree was set aside and the suit stood revived. It is in this background that the suit was filed for rendition of accounts etc, Before the filing of written statement by the defendants, on 6-10-2011 the defendants Nos.1 and 2 made appearance before the court and got their statements recorded that if the plaintiffs took special oath on Holy Qur'an that their father had not gifted the 52 plots in the name of his three sons then defendants Nos. 1 and 2 are ready to give the shares to the plaintiffs but to the extent of property of Masood since already his adopted son had filed the suit which was sub judice so the said property should remain intact. It may be mentioned here that on 6-10-2011 when defendants Nos. 1 and 2 made said offer the plaintiffs were not present in the court. The learned trial court adjourned the case for the statements of the plaintiffs and for their personal appearance for 24-10-2011. On 24-10-2011 due to holiday the suit was adjourned for 25-10-2011 and since on that day the plaintiffs were not present so for their personal appearance the suit was adjourned for 12-11-2011 but on the same day i,e, on 25-10-2011 the plaintiffs moved application for early hearing of the suit which was adjourned for 1- 11-2011 on the ground that they were ready to take special oath on Holy Qur'an. On this application the notices were issued to opposite party for 27-10-2011 but prior to that oh 27-10-2011 the defendant No,2 before the administration of oath made the statement that he had no belief on oath of plaintiff since previously plaintiff No,2 Yasmin Sadiq during proceedings of petition under section 12(2), C.P.C. In the court of Senior Civil Judge Rawalpindi made the statement that their father had gifted away the property to his sons and so he takes the offer back. This statement of defendant No,2 was objected by learned counsel for the plaintiffs and then on the same day the special oath was administered to the plaintiffs to the effect that their father had not gifted away the property to his sons. After recording the said statement the trial court adjourned the matter for arguments on the point that whether defendant No,2 could resile from the said offer and vide order dated 3-11-2011 the learned Civil Judge Rawalpindi passed the order that defendants Nos. 1 and 2 were not compelled to make the statement on oath nor the proceedings were carried out in hasty manner and that the offer was accepted by the plaintiffs and oath was administered to them upon Holy book and so disallowed the defendant No,2 to resile from the offer. This order was challenged through revision and the learned ADJ vide order dated 7-9-2012 allowed the revision petition on the ground that the offer was withdrawn prior to the notice of acceptance to the defendant No,2 and resultantly set aside the order of trial court. This order of learned ADJ has been challenged through the present writ petition.
3. The learned counsel for the petitioners contended that when the offer is made and accepted it cannot be withdrawn. In this respect he placed reliance upon Saleem Ahmad y. Khushi Muhammad [1974 SCMR 224], Attiqullah v. Kafayatullah [1981 SCMR 162], Muhammad Ali v. Major Muhammad Aslam and others [PLD 1990 SC 841], Muhammad Rafique and another v. Sakhi Muhammad and others [PLD 1996 SC 237], Mahmood Ali Butt v. Inspector General of Police., Punjab, Lahore and 10 others [PLD 1997 SC, 823] and Ahmad Khan and others v. Jewan [PLD 2002 SC 655].
4. On the other hand, learned counsel for the respondents contended that when the offer is withdrawn prior to the administration of oath and prior to the acceptance then the parties are at liberty to withdraw the same. He in this behalf placed reliance upon Mst. Asifa Sultana v. Honest Traders, Lahore and another [PLD 1970 SC 331], Bashir Ahmad v. Plastic Bag Packaging Limited and others [PLD 1991 Lahore 386], Shakirullah v. Haidyatullah, etc. [1999 MLD 389], Inayat Ali and others v.
Muhammad. Sultan [1988 MLD 811 (Lahore)] and Civil Appeal No, 2720 of 2001 by the august Supreme Court dated 20-6-2006.
5. Arguments heard. Record perused.
6. The first determining factor is that whether the offer was withdrawn prior to the acceptance or the knowledge of acceptance by the persons who made the offer. In this respect it is appropriate to mention that on 6-10-2011 when defendants Nos. 1 and 2 made offer to the plaintiffs to make the statement on Holy Qur'an, the plaintiffs were not present in the court and only their counsel was present. The order sheet dated 6-10-2011 shows that even the learned counsel for the appellant had not made any statement that the plaintiffs were ready to make statement on oath and so it cannot be said that on 6-10-2011 the offer made by the defendant was accepted by the plaintiffs. In fact the learned trial court adjourned the case for personal appearance of plaintiffs and for their statements for 24-10-2011, meaning thereby that the plaintiffs might have made the statement on 24-10-2011 that the offer of the defendants were not acceptable to them. On 24-10-2011 due to holiday the case was adjourned for 25-10-2011 on which date also the plaintiffs were not present in person and the case was adjourned for 12-11-2011. This clearly shows that till 24-10-2011 the offer was not accepted by the plaintiffs. However when on 25-10-2011 the case was adjourned for 12-11- 2011 the plaintiffs made the application for early hearing of the case claiming therein that they were ready to make special oath. However, the record does not show that on 25-10-2011 when the application was moved the other party was present. The notices were issued to the other side for 27-10-2011 and it was on the said date that both the parties made the appearance before the court.
However, prior to recording of statement by the plaintiffs that the offer was acceptable to them and they were ready to make special oath the defendant No,2 made statement that he was not satisfied with the oath of the plaintiffs since previously in the proceedings in petition under section 12(2), C.P.C. The plaintiff No,2 had made the statement that the father had gifted away property to his sons and so he withdraws his offer dated 6-10-2011. The learned trial court did not pass any order on this statement on 27-10-2011 but administered oath to the plaintiffs who deposed that the father had not gifted away the property to them. Now this clearly shows that prior to the acceptance of the offer one of the defendant had resiled and had withdrawn his offer so the only question which remains to be decided is that prior to the acceptance whether the parties are at liberty to withdraw the same keeping in view the special circumstances of the case. As far as the case-law cited by the learned counsel for the petitioners is concerned, in the case reported in PLD 1997 SC 823 the ,offer was made, accepted and the special oath was administered. In this background it was held that the person making the offer was now unable to resile from it or to withdraw the same. The facts of the said case are distinguishable. In the case reported PLD 1996 SC 237 it was held that after the acceptance the person cannot resile from the offer. Same principle was laid down in the case of 1981 SCMR 162. However, as has been mentioned above though in the present case the defendant No,2 had resiled from his offer prior to the acceptance by the plaintiffs and prior to the administration on oath so the said cases are also distinguishable. In the case reported in 1974 SCMR 224 though the application for withdrawal was moved prior to the administration on oath but since the oath had been administered so it was held that person making the offer cannot resile from it. The facts of the said case are also distinguishable since in the present case withdrawal has been made prior to acceptance by the plaintiffs. In the case reported in PLD 1990 SC 841 it was observed by the august Supreme Court that the question whether a party who had made offer can resilt from it depends upon facts and circumstances of each case. Similarly, in the case reported in PLD 2002 SC 655 it was held that the proceedings of oath should not be conducted hastly. On the other hand, in the unreported case the august Supreme Court in Civil Appeal No,2720 of 2001 decided on 20-6-2006 had laid down that prior to acceptance the offer can be withdrawn . In the case reported in NLR 1999 Civil 44(sic) it was held that the court can not decide the matter on oath when alleged offer was neither accepted by opponent on the same day nor in any way acted upon.
7. The perusal of case-laws cited by the learned counsel for both the parties clearly shows that at- least the superior court in the above mentioned cases had disallowed the withdrawal of offer when the offer has been accepted and in some cases it has been held that even if the offer is accepted the oath is administered even then according to the facts and circumstances of each case the court is empowered to allow the withdrawal of the offer.
8. As has been mentioned above that in the present case it stands established that the offer was not accepted by the plaintiffs specifically till 27-10-2011. Even on 27-10-2011 when the plaintiffs were present before the court they had not made the statement that the offer was acceptable to them and they were ready to administer the oath. On 27-10-2011 when the trial court marked the presence of the parties it was on this occasion that defendant No,2 made statement for withdrawal of offer but ignoring it the oath was administered to the plaintiffs. The reason furnished by defendant No,2 for withdrawing his offer was that previously one of the plaintiffs had made the statement in a petition under section 12(2), C.P.C. That the property was gifted by their father to his sons. In such eventuality, the learned revisional court rightly held that at least the acceptance was not conveyed to persons who were making the offer and rightly set aside the order of trial court wherein defendant No,2 was disallowed to resile from his offer.
9. After going through the impugned order no illegality is found in the impugned order of the learned ADJ. Hence, this writ petition has no force and the same stands dismissed.