KAMRAN HAYAT MIANKHEL, J.-- Through this writ petition, the petitioners have prayed for the following relief: "On acceptance of the instant writ petition may kindly set aside the impugned judgments/orders of the two Courts below and may be accepted the writ petition and may remand the case to the learned trial Court to dispose of the case on special oath, with cost throughout".
2. Ephemeral and succinct facts of the case are that the respondents/plaintiffs filed suit for declaration, permanent mandatory injunction against the petitioners/defendants in respect of Khata No.393, Khasra No.1198 & 1180 situated at Mauza Passani Serai Naurang, District Lakki Marwat.
As per plaint respondents/plaintiffs late father, Sheikh Fazal-Ur-Rehman was the owner of the property and the impugned gift mutation No.588 dated 28.05.1998 was attested fraudulently in leageue with revenue staff. Similarly, the sale agreement (Iqrar-Nama) dated 27.02.2003 in favour of petitioners/defendants is also result of fraud and skuldaggery and is, therefore, inffective upon the rights of respondents/plaintiffs.
Petitioners/defendants filed their written statement and on contentious averments of the parties, thr trial Court framed as many as twelve issues.
3. After the completion of evidence of respondents/plaintiffs, the respondent No.1/plaintiff No.1, himself as well as attorney of other respondents filed application dated 14.06.2023, to the effect that if petitioners/defendants take oath that the father of respondents/plaintiffs has gifted the impugned land through mutation then their suit be dismissed with cost. Reply of the same was sought and the petitioners/defendants accepted the offer vide replication dated 11.07.2023. On 17.07.2023 respondents/plaintiffs through application resiled from their earlier application on the pretext that they after consulting Ulema who suggested that if they knew about the wrong doing of somebody and even then insist on his taking oath on Quran then the sin would be upon them and not on the person taking oath. Reply of the same was filed and the trial Court after hearing the counsel for the parties accepted the resile application vide Order dated 22.07.2023.
4. Aggrived from the ibid Order of trial Court, the petitioners filed revision petition which also met the same fate vide Order dated 19.01.2024, hence, this writ petition.
5. Learned counsel for petitioners/respondents vehementaly argued that once offer of oath is accepted, the offerer cannot back out of it as it creates a binding contract that too witnessed by the court. He further stated that the respondents/plaintiffs have not given any cogent reasons to back down from the contract after its acceptance.
6. On the other hand, learned counsel for respondents/plaintiffs argued that no section in the Oath Act deals with the question that whether one can resile from offer made by him or not, therefore, question of resiling must be decided on general principles of law and that too after recording pro & contra evidence of the parties. He further stated that the application is under Article 163 of Qanun- e-Shahadat Order, 1984 and not under Oath Act which is evident from the nomenclature of the application.
7. Arguments heard and record perused with the able assistance of counsel for the parties.
8. Minute scrutiny of the record reveals that duing the pendency of the suit respondents/plaintiffs moved an application to the effect that if petitioners/defendants take oath then their suit be dismissed with costs. The petitioners/defendants accepted the offer but the respondents resiled from the same.
9. Now, the question before this Court is;
(i) Whether the respondents/plaintiffs after acceptance of their offer to decide the suit on oath can resile from the same?
(ii) Whether the application for decision on oath falls under Article 163 of Qanun-e-Shandat or Oath Act, 1873?
10. No doubt, the nomenclature of the application dated 14.06.2023 is that of under Article 163 of Qanun-eShahadat but the pith and substance of the same is that of Oath Act, 1873. The special oath administered under Oath Act, 1873 is different to the oath provided by Article 163 of Qanun-e- Shahadat Order, 1984. For ready reference, the said provison is reproduced here under: "163 Acceptance or denial of claim on oath.
1. when the plaintiff take oath in supporting of his claim, the court shall, on application of the plaintiff, call upon the defendant to deny the claim on oath.
2. The court may pass such orders as to costs and other matters as it may deem fit.
3. Nothing in this Article applies to laws relating to the enforcement of Hadood or other criminal cases".
11. The bare perusal of the said provison of law reflects that an initiative has to be taken by the petitioner who's first stance is to offer himself for oath in support of his /is where after at his request the Court has to call upon the other side to refute the said statement of the petitioner on oath and the Court is bound to pass any order in the light of the said statement of the parties. Under the Oath Act, 1873, the party desirous of decision on oath ask other party to take oath where as under Article 163 of Qanun-e-Shahadat, the party having desire to decide the matter on oath put himself to task by offering to take oath first and then on his request the court calls upon the other party to refute the said statement on oath. Both the provisions of Oath Act, 1873 and Article 163 of Qanun-e- Shahadat are opposite to each other. In present case, the plaintiff/respondent did not make an offer for administering special oath as provided in Article 163 of Qanun-eShahadat Order, 1984 but offered the petitioners/defendants to take oath, which clearly manifiest that respondents/plaintiffs offer was under Oath Act, 1873 and not under Article 163 of Qanun-e-Shahadat. The mentioning of wrong nomenclature will not change the complexion or nature of the application and the Court has to see the pith and substance of the application rather than nomenclature of the application.
Reliance in this regard is placed on PLD 2024 SC 864.
"Through the citing of wrong nomenclature of section was not noted, but in our view, it does not change the complexion of the application or the relief claimed in such application if it is clear otherwise from the contents of the application what the applicant actually claimed and prayed for. The Court has to see the pith and substance rather than the nomenclature, and if the Court perceives any such irregularity, it may in the interest of justice, call upon the applicant to correct and recta such error of nomenclature, which may be typing error or may have been caused due to some misunderstanding, but on the notion or mention of a wrong section, an adverse order cannot be passed without adverting to the substance of such application"
12. Now, coming to the first question that whether the respondents/plaintiffs can resile from their offer after its acceptance from other side?
No doubt, there is no section in the Oath Act, 1873 dealing with the question whether a party who has made an offer to decide the same on oath and accepted by other side can resile from the same or not. The offer to decide the matter on oath if accepted becomes a binding contract and without giving cogent reasons cannot be resiled. The offer to decide the case on oath must be made after due consideration and should not be made in the heat of discussion or in emotional situation and the Court should guard itself and the parties from such situation. More often than not, during examination of a party or a witness, during heated discussion or arguments, a party in the excitement of the moment may be led to make a snap decision in this respect. He may in the heat of passion make such an offer, or accept as such a one, which otherwise in a state of cool deliberation he would not have made or accepted. The Courts should be careful and cautious so as not to act in haste to accept and record such statements, for such offers and acceptances would not be founded in piety and grace and would not be made at the high level of truth. For no reason a person makes an offer to another to make a statement on Holy Quran or his Holy book, whichever it may be, with regard to any matter or fact, the effect of which will be to bind him in a particular manner, for good or for worse, he does so on the assumption that the person who will accept it is conscious of his trust and while making the statement on the Holy book shall place himself figuratively before his maker and his Holy Prophet and state the truth, on pain of divine wrath. The Court should, therefore, be somewhat circumspect in this matter and refrain from permitting parties to enter into such agreements, which otherwise do not appear to have been made by them in some reasonable frame of mind, or which appear to be the result of indecent haste, or which otherwise, from the apparent conduct of any of the parties, appeared to be such as would make a mockery of the oath. In case of civil appeal No.459 in civil petition No.889 of 1987, decided on 19th May, 1990 (PLD 1990 SC 841) wherein it was held that: The High Court, whilst rejecting the petitioner's permission to resile from his offer, had inter alia held that the agreement between the parties was in the nature contract and one of the tile contracting parties could not be allowed to back out of it unless the contract was void or had been frustrated and since none of these eventualities had occurred in the case, it did not entitle the petitioner to the relief. Basically, therefore, the principle still is that there is no section in the Oaths Act, 1873, dealing with the question whether a party who has made an offer to be bound by the statement on oath, or special oath, by the opposite party or witness, can resile from such an offer and the matter being one left to be decided on general principles, the question whether the party who has made an offer can resile from it, depends upon the facts and circumstances of each case".
In support of the same ratio further reliance is placed on the judgment given in case of Salim Ahmad Vs Khushi Muhammad (1974 SCMR 224).
13. Keeping in view the above dicta of the above referred judgment of apex Court, this Court has to ascertain that whether offer to decide the suit was made with a conscious and cool mind. The respondent No.1/plaintiff No.1, himself and as attorney of other respondents/plaintiffs, after adducing their evidence, out of blue filed an application dated 14.06.2023 that if petitioners/defendants take oath about the veracity of gift mutation made by their father through his own will then suit of the respondents be dismissed with cost.
14. On 11.07.2023, petitioners/defendants accepted the offer and thus binding contract came into being. After the acceptance of offer by petitioners/defendants, the respondents/plaintiffs on 17.07.2023 moved application to resile from the offer of decision of the case on oath. The respondent moved application for decision on oath on 14.06.2023 while offer was accepted on 11.07.2023 i.e. after one month and was resiled after six days of the acceptance i.e. 17.07.2023. This shows that it was not a snap decision taken by the respondents/plaintiffs but the decision to decide the case on oath was made after due application of mind. Even otherwise, the respondents have not given any cogent and convincing reason that why he should be allowed to resile from the contract of oath. In this regard wisdom is also derived from 1981 SCMR 162.
"An agreement made in court to be bound by evidence given on special oath is a settlement to which the court is also a party, therefore, such an agreement is not one of these agreements which a party may keep or break as it liked subject only to a claim from the aggrieved party for damages. To allow a party to resile, without adequate reasons, from an undertaking of this nature would amount to allow him to play the game of hide and seek with the other party and even to abuse the process of the court".
15. In view of the above discourse, the decision of both the Courts below are set aside and case is remanded back to the trial court to decide the same under the Oath Act, 1873.