MALIK WAQAR HAIDER AWAN, J:- Through this constitutional petition, petitioner has challenged the validity of order dated 26.03.2021 passed by learned Senior Civil Judge (Family Division), Sahiwal (hereinafter referred to as "Family Court") whereby the Family Court decided the controversy regarding decision of the suits on special oath while holding that petitioner cannot back out of his offer/proposal (made during his cross-examination) for decision of the suits on special oath on Holy Quran and respondent No.2 was directed to ensure the presence of herself, her parents or her real brothers for taking special oath and petitioner was given choice to select any one of them for the said purpose in terms of offer/proposal earlier made by him.
2. Concisely, facts of the case are that respondents No. 2 to 4 filed two suits pertaining to recovery of maintenance allowance and dowry articles alongwith gold ornaments which were contested by the petitioner. The controversy arose on 02.11.2020 when during cross examination, petitioner while appearing as his own witness (DW-1) stated that if respondent No.2, her parents or her real brothers administered special oath on Holy Quran that the suits filed by her are based on truth, he got no objection if both the suits be decreed. This offer was not responded to during the course of cross-examination and on the same day, petitioner closed his oral evidence and had sought time for production of documentary evidence.
3. On 10.11.2020, documentary evidence on behalf of the petitioner was produced and case was posted for 16.11.2020 for final arguments. Thereafter, case was adjourned for 01.12.2020, 07.12.2020, 09.12.2020, 15.12.2020, 05.01.2021, 19.01.2021 and 20.01.2021 for final arguments. On 20.01.2021, an application regarding decision of the suits on special oath on Holy Quran was filed by respondent No.2 while referring to the offer/proposal made by the petitioner on 02.11.2020 during his cross- examination. This application was duly contested by the petitioner who prayed for decision of the suits on merit. The application was ultimately decided by learned Family Court in the terms mentioned in the preceding paragraph. Hence, this constitutional petition.
4. Learned counsel for the petitioner contends that offer/proposal for special oath on Holy Quran was made during the course of cross-examination on 02.11.2020 which was neither replied nor accepted by respondent No.2 or her learned counsel and thereafter, documentary evidence of petitioner was recorded and case was posted for final arguments. Submits that both the parties sought numerous adjournments for final arguments, thus in the peculiar circumstances of the case, the offer/proposal earlier made by petitioner shall be deemed to be ineffective as it was not accepted by respondent No.2.
5. Conversely, learned counsel for respondents No. 2 to 4 submits that once offer/proposal for special oath on Holy Quran was made by the petitioner, he cannot step back. Relies upon Sajid Mehmood v. Mst. Shazia Azad and others (2023 SCMR 153).
6. Heard. Record perused.
7. It is evident from the record that during the course of his cross-examination, offer/proposal for special oath on Holy Quran was made by the petitioner (DW-1) on 02.11.2020 which was neither responded to nor accepted by respondent No.2 and thereafter, petitioner closed his oral evidence and matter was adjourned for production of documentary evidence which was adduced on 10.11.2020. Afterwards, a number of times, case was adjourned for final arguments but said offer/proposal was not accepted. All of sudden, on 20.01.2021, respondent No.3 made an application regarding decision of the suits on special oath on Holy Quran which was resisted by the petitioner who insisted that the suits be decided on merit.
8. Perusal of order sheets of learned Family Court divulges that during cross-examination, when the offer/proposal for special oath on Holy Quran was made, neither respondent No.2 nor her learned counsel responded to the same and after a number of adjournments, when the case was about to arrive at a definitive end, an application for decision of the suits on the basis of special oath on Holy Quran was moved by respondent No.2.
9. To my mind, offer/proposal made by the petitioner was not for all times to come and there was no mutuality of promise between the parties. When an offer/proposal was made by the petitioner and it was not accepted by the adversary at the same stage of trial, it would be deemed that agreement between the parties could not mature. Furthermore, delay and further proceedings in the suits would lead to the conclusion that the offer/proposal was refused by the other party by an act and omission.
10. It is a well-established jurisprudence that refusal can be either expressed or implied. An express refusal is a clear and direct statement rejecting an offer/proposal. An implied refusal, on the other hand, is established through actions, behaviour or silence that indicates the party's unwillingness to accept the same. When the parties had chosen to next stages of trial while letting behind the offer/proposal without acceptance, the offer/proposal would deem to be ineffective, meaning thereby respondent No.2 missed the train by not expressly accepting the offer/proposal promptly.
11. As regards the judgment cited by the learned counsel for respondents No. 2 to 4, the same being outcome of different facts and circumstances, is not applicable in the case in hand.
12. For the foregoing reasons, this constitutional petition is allowed and impugned order dated 26.03.2021 passed by learned Family Court is set-aside. Keeping in view the fact that the suits qua recovery of maintenance allowance and dowry articles alongwith gold ornaments filed by respondents No.2 to 4 are pending since long awaiting final arguments to be made by the parties, learned Family Court is directed to decide the lis on merit strictly in accordance with law expeditiously.