' The relevant facts leading to this civil revision briefly are that plaintiffs respondents Mahmood Ahmad and Muhammad Aslam filed a suit for possession in respect of an Ahata No,24 measuring 2 Kanals situate in Chak No,63/D.B., District Bahawalpur, on 3rd August,1980 on the ground that the defendant-petitioner occupied it without any legal right. The defendant-petitioner resisted the suit on a number of grounds including the one that father of the respondents had sold the Ahata in dispute to him in the year 1961 and he was in possession of the same by virtue of sale made in his favour. In the alternative he pleaded that if the sale is held to be defective then by efflux of time he had become owner of the said Ahata through adverse possession. Four issues besides the relief were framed and tried and ultimately the trial Court dismissed the suit with the finding that the petitioner having purchased the Ahata in dispute from father of the plaintiffs-respondents had become its owner and also the suit was barred by time. The plaintiffs-respondents filed an appeal against the order of dismissal of the suit which was entrusted for disposal to Sh. Muhammad Rafiq Goreja, Additional District Judge-I, Bahawalpur. During the pendency of the appeal, it so happened that on 10th October,1982 the petitioner and his counsel offered that if Mahmood Ahmad, respondent, would make statement on oath on Holy Quran that his father did not sell the Ahata in dispute to him (petitioner) then he shall be bound by the statement and in pursuance thereto the appeal of the respondents be accepted and suit decreed. This offer was reduced into writing and the signatures of the petitioner and his counsel were obtained thereon. As Mahmood Ahmad, respondent No,1, was not present on that day, therefore, his counsel sought time for obtaining instructions if the proposal was acceptable to him. The appeal was adjourned to 10th November,1982 for further proceedings. On that date at the first call made for the appeal the respondents' counsel appeared and informed the Court of the acceptance of the proposal and stated that Mahmood Ahmad was ready to make a statement on oath on the Holy Quran. The petitioner requested that since his counsel was busy before some other Court, therefore, the appeal be kept in wait for some time. The request was acceded to. At the second call, the petitioner and his counsel appeared and gave an application stating therein that the appeal be decided on merits as the petitioner had lost confidence in Mahmood Ahmad because he approached him on 9th November,1982 and demanded Rs,10,000 for withdrawing the appeal. This application was contested by the respondents, who in their reply filed on 11th December, 1982 termed the allegation of demanding Rs,10,000 as false and prayed for passing decree in their favour. The learned Court then having heard the arguments observed that when the appeal was first called and the petitioner appeared, he did not show his intention to resile from the offer and simply requested the Court to wait for the arrival of his counsel who was busy before some other Court, therefore, it was held that the application of the petitioner was not bona fide and that in the absence of any justification the petitioner could not be allowed to resile from the offer for it would tantamount to allow the petitioner to play hide and seek with the other party and also abuse the process of Court.
Consequently the learned Court rejecting the application of the petitioner posted the appeal for 27th April,1983 for recording the proposed statement of the respondent on special oath. Feeling aggrieved, the petitioner has filed the instant civil revision.
2. Learned counsel for the petitioner has vehemently argued that the petitioner was justified in expressing his no-confidence in Mahmood Ahmad, respondent, because he had approached him on 9th November,1982 and demanding Rs,10,000 which was a dishonest act on his part and naturally it had shaken petitioner's confidence about the integrity of Mahmood Ahmad, respondent. Further, argued that since a specific allegation had been levelled against the respondent, therefore, it was necessary for the learned Court to have held inquiry into it and then by evaluating the material brought on record by the parties a finding should have been given if in the circumstances it was proper to hold the parties to such an agreement. He emphasized that a person can justifiably withdraw from such an agreement if he shows that the contract was "void or had become frustrated". Applying the term "become frustrated" to the instant case, he submitted that subsequent to the making of an offer of being bound by the statement on oath of Mahmood Ahmad, respondent, his dishonesty dawned upon the petitioner as a result of which the agreement "became frustrated". He mainly relied on the observations made in Muhmmad Akbar v.
Muhammad Aslax PLD 1970 SC 241.
3. Replying, the learned counsel appearing on behalf of the respondents supported the impugned order being perfectly legal and with jurisdiction, and that there did not exist any ground in law or in equity on which the petitioner could claim right of resiling from the solemn agreement made by him. He strenuously urged that the impugned order cannot be interfered with in exercise of revisional jurisdiction since no illegality or material irregularity has been pointed out. He relied on Attiqvllah v. Kafayatullah 1981 SCMR 162.
4. I have carefully considered the facts and circumstances of the case in the light of the arguments addressed and the case-law cited at the bar
5. The only point which requires determination in this case is, whether or not it was open to the petitioner to resile from the offer of special oath made by him to respondent Mahmood Ahmad after the same had been accepted in Court in his presence. Learned counsel appearing on behalf of the petitioner did not. Dispute the fact that the petitioner had made an application expressing, no-confidence in the oath to be taken by Mahmood Ahmad, respondent, after the offer had been accepted. The authority relied upon by the learned counsel, that is, Muhammad Akbar's case (supra), does not at all help him because in that case the offer was not made for taking special oath and the provisions of Oaths Act were thus not attracted, whereas in the instant case provisions of Oaths Act do apply. It is true N ; that there is no provision in the Oaths Act dealing with the question whether a party making an offer to another party to take special oath can subsequently resile after the same has been accepted, but it is well-settled that a party to such an agreement cannot be allowed to back out unless the contract was either void or had 'become frustrated'. According to the facts of the present case, the offer for taking special oath was made by the petitioner to Mahmood Ahmad, respondent, a month before he filed application to wriggle out of the offer. On the relevant day, at the first call the petitioner appeared in Court and in his presence the respondent accepted the offer and expressed his willingness to make a statement on oath and the petitioner without protesting against the so-called dishonest conduct of the respondent which came to his knowledge a day before and simply requested the Court to wait for his counsel's arrival. It shows that the petitioner after the offer had been accepted by the respondent change his mind and in an attempt to back out from the agreement coined an excuse that Mahmood Ahmad demanded Rs,10,000 from him. If there was any truth in it, what prevented him from informing the Court before the offer was accepted? It cannot be said that the agreement had become frustrated for reasons beyond the control of either party, therefore, doctrine of frustration is not attracted. The things are so plain that I feel no hesitation in agreeing with the learned appellate Court that the petitioner's application was not based on bona fides. Attiqullah's case (supra) applies to the facts of this case on all fours. Respectfully following this precedent I am clearly of the view that it was not open to the petitioner to run away from the solemn agreement in the circumstances of the case and consequently, the impugned order cannot be interfered with.
6. For what has been stated above, this petition being without merit is hereby dismissed. The parties are left to bear their own costs.