Ch. Muhammad Masood Jahangir , J: This litigation runs between two real brothers. Muhammad Sohna respondent No.3 brought a suit against the petitioner and Province of the Punjab to assail vires of oral exchange mutation No.4645 dated 29.07.1992. In due course of proceedings, on 08.05.2012 the present petitioner/defendant filed an application for the decision of case on special oath to be administered by respondent No.3/plaintif f and the matter was adjourned to 11.05.2012 for latter 's reply , who showed his willingness to administer the oath, but at the same time, petitioner tabled a written request to resile from the offer earlier made by him. The request of petitioner was accorded by learned Civil Judge and case was fixed for further proceedings on merit. Respondent No.3 challenged it by filing a Civil Revision before the learned District Court, which was allowed on 10.10.2012 compelling the petitioner to approach this Court by means of Writ Petition in hand, but during its pendency , the statement on special oath of the Holy Quran was administered by respondent No.3 and as a result thereof, his suit was decreed on 30.11.2012. Although it was assailed in Appeal, but without any success when it was dismissed by learned Addl. District Jude on 03.07.2014, which forced the petitioner to approach this Court through connected Civil Revision No.3112 of 2014. As common questions of law and facts are involved in both the lis, which have arisen out of a single suit instituted by respondent No.3, I intend to dispose of the same jointly through this single judgment.
2. Arguments heard and record perused.
3. Before commenting upon issue involved in the case in hand, it would be advantageous to use up the headway as well as situation of the suit proceedings, which constrained the petitioner/defendant to table an application for the resolution of suit through special oath of the Holy Quran and thereafter to make an ef fort to retract therefrom.
The suit was instituted by respondent/plaintiff on 20.10.2007, but despite observance of prescribed modes provided under Order V of the Code, 1908, the petitioner/defendant did not turn up and ultimately was proceeded against ex parte on 28.02.2008. Pursuant thereto, in ex parte evidence Muhammad Rasheed (DW2), one of the marginal witnesses of the impugned exchange mutation was examined, who explicitly worded in his statement that neither he had appeared in the public gathering for the attestation of mutation nor he signed it. This statement being uncontroverted by any corner forced the Civil Court to pass an ex parte decree in favour of respondent on 26.09.2008. Thereafter, petitioner turned up with an application for its setting aside, which was granted on 07.12.2011. The respondent did not assail it any further and opted for the decision of his suit after its full-fledged trial. Nevertheless, not only the suit was invigorated, but after settlement of issues, it was also fixed for 08.05.2012, when partial evidence of the respondent was available and Muhammad Rasheed, the marginal witness of the impugned mutation, would again be there that the application for decision of suit on special oath of the Holy Quran was filed through a counsel, who happened to be Hafiz of that Holy Book and might be well acquainted with the import and veneration of such an oath than any other ordinary lawyer. Such like offer is made on behalf of a party on the supposition that the adversary, who will accept it is not only conscious of the trust of this Holy Book, but has a dynamic belief therein and while making the affirmation thereon, shall deem itself to be before its maker and certainly deposed the truth on account of fear of wrath and antagonism of Him.
This offer was not made in haste, rather the petitioner was confident that one of the witnesses to the suit mutation had already deposed against him and was going to repeat it. The Court was also not in hurry to record the reply of the respondent on the same day, rather proceedings were postponed for next three days and on 11.05.2012, the respondent came prepared to administer the special oath, then application was filed by the petitioner to claim right of resiling from the solemn offer, which had already been accepted, constituting a valid contract. Had there been a denial on the part of respondent, there would be no occasion to make a request for resiling from the offer. In this regard, the contents of application are very much relevant narrating therein that he learnt from the people of village that the respondent would make a false statement on oath. Had it been so, there were two clear days available to the petitioner in between the preceding and forthcoming date of hearing, who might have approached the Court with his request in those two days or on the day of hearing, the moment Judicial Officer appeared in the Court, this application would have been tabled, but the petitioner kept on waiting till the offer was accepted by the adversary , thereafter moved the application when much water had already flown through the bridge while accruing vested right to the other party .
4. Sh. Naveed Shehryar , Advocate for the petitioner by and large while relying upon the dicta laid down in Mst.
Asifa Sultana Vs. Honest Traders, Lahore and another (PLD 1970 Supreme Court 331) accentuated with great concern that a party offering to abide by a statement on oath can resile from such offer prior to administration of oath. I have meticulously scanned this illustrious judgment and come to the conclusion that it was left upon the discretion of the Court dealing with such proposition to decide it on the facts and circumstances of each case. The facts of the case in hand as discussed hereinabove compelled me to exercise my discretion in favour of the respondent, who had an important witness of the impugned mutation along with him, which being substantial evidence was enough to splinter the genuineness of the mutation. As per reported judgments of the apex Court delivered in the following cases:- i). Saleem Ahmad Vs. Khushi Muhammad ( 1974 SCMR 224 ) ii). Muhammad Ali Vs. Major Muhammad Aslam and others (PLD 1990 SC 841 ) iii). Muhammad Mansha and 7 others Vs. Abdul Sattar and 4 others (1995 SCMR 795) iv). Nasrullah Jan Vs. Rastabaz Khan ( 1996 SCMR 108 )
It was authoritatively laid down that settlement to decide the matter on oath constituted a valid agreement from which parties could not conveniently wriggle out until contract was ex facie shown to be void or incapable of implementation, which is not the case of present petitioner . As such this Court is of the view that learned Addl.
District Judge was justified in refusing to permit the petitioner to resile from his offer, but he was to abide by the same.
5. The ultimate result of the discussion is failure of the connected matters, hence, while maintaining the impugned order/judgments/decrees, instant Writ Petition and connected Civil Revision No.31 12-2014 having no force are dismissed.