' GHULAM MUJADDID MIRZA, J.--Facts giving rise to the present constitutional petition which lie within a narrow compass when briefly stated are that the respondents Nos. 3 to 19 applied for eviction of the petitioner from the property in dispute on the grounds:--(i) default in payment of rent, (ii) personal bona fide need of the premises, (iii) damage to the property etc. through an eviction petition filed before the Rent Controller. Ejectment petition was resisted through written statement filed by the present petitioner. Necessary issues reflecting the controversy were framed by the learned Rent Controller and the case was then adjourned for evidence. While evidence of the petitioners/ landlords was in progress, Sh. Dawood tenant-in-occupation, proposed to have the whole dispute resolved on special oath of Dr. Muhammad Zulfiqar, one of the co-applicants in the ejectment application. Offer proposed was accepted and Dr. Zulfiqar agreed to make the necessary statement on Holy Quran. Statement of Dr.Zulfiqar was then recorded by the Rent Controller. Since the whole dispute turns upon the proposed offer and the statement of Mr. Zulfiqar it will be advantageous to reproduce these statements and the consequential order of the Rent Controller:--[URDU TEXT] '41,01/4-:14))/ciou [URDU TEXT] ' After recording statement of Dr. Zulfigar on 10-7-1984, learned Rent Controller passed an eviction order against the tenant. Order, dated 10-7-1984 of Rent Controller was brought under challenge in appeal. Learned Additional District Judge, vide order, dated 16-7-1984 disallowed the appeal. It was observed by the Appellate Court that the matter was decided with the consent of the parties in accordance with a Special Oath taken by Dr.Zulfigar, hence it amounted to a consent order and was not appealable under section 15 of Ordinance VI of 1959. Orders passed against the petitioner have been called in question in constitutional jurisdiction of this Court. Prayer has been made that the orders be declared to have been passed without lawful authority and of no legal effect.
2. I have heard learned counsel for the petitioner and examined the record. Learned counsel raised the following contentions:--
(i) First appeal under section 15 of Punjab Urban Rent Restriction Ordinance, 1959 as amended could not have been dismissed in limine, by the learned Additional District Judge.
In support of the contention; learned counsel placed reliance on the cases of Begum Hamayun Zulfiqar Ismail and another v. Begum Hamida Sandal Ali 1968 SCMR 282, Abid Hussain v. Afsar Jehan Begum and another PLD 1973 SC 1.
(ii) Eviction order was not outcome of the consent of the parties. Consequently, it could not be described to be a consent order not appealable under section 16 of the Ordinance. Section 96(3) of the Code of Civil Procedure barring appeal against a consent decree in its terms is inapplicable to appeals preferred under section 15 of the Ordinance. Section 15 uses its own phraseology and does not contain a parallel provision like section 96(3), C.P.C., obvious intention of the legislature being that the appeal even against consent order is not barred by law.
(iii) That the ejectment of the petitioner was ordered by the Rent Controller on the basis of provisions of sections 8, 9, 10 and 11 of the Oaths Act, 1873 which were not available to the Rent Controller as he did not hear the ejectment matter as a Court. Even if the said provisions of law were applicable to Rent Controller for decision of the ejectment case, his order was defective for the reason that according to section 13 of the Ordinance which provides a complete Code of Procedure for decision of the matter, Rent Controller could not order eviction of the tenant without holding usual inquiry into the allegations made in the eviction petition for seeking eviction of the tenants. Contention precisely is that the Rent Controller is bound to decide the ejectment petition in accordance with a procedure laid down in section 13 after affording a reasonable opportunity of hearing to the tenant to defend his possession.
3. Taking up the submissions in seriatim, the question that the first appeal cannot be dismissed in limine, under section 15 of the Ordinance has no merit to commend in the facts and circumstances of the present case. The petitioner himself invited the decision on the basis of a statement made on Special Oath. The oath was administered in his presence and Mr. Muhammad Zulfiqar made a statement in accordance with the proposed oath on Holy Quran. The first appellate Court examined the contentions of the petitioner with reference to the record requisitioned and finding no merit therein proceeded to dismiss the appeal in limine. Facts were neither disputed nor were complicated in nature. In this view of the matter no useful purpose would have been served to admit the appeal, hear the respondent and then decide it. At least, no material prejudice is shown to have been caused to the petitioner in the manner in which the appeal has been disposed of by the First Appellate Court. Reference may be made to the case of Usman Chani v. Muhammad Amin Khan PLD 1975 Lah.
299.
4. Taking up his second contention, learned counsel has stressed that the impugned order cannot be described to be a consent order, same having been decided on the basis of a statement made on Special Oath. He has placed reliance on:
(1) I L R 11 Mad.
365.
(2) I L R 22 Mad. 234
(3) 149 Indian Cases 1102
(4) AIR 1938 Nag. 642
(5) A 1 R 1946 Lah. 78
(6) PLD 1954 Lah. 290
(7) PLD 1976 Lah.
1320.
' The effect of statement so made is given under section 11 of the Oaths Act, 1873 which states that the evidence so given shall, as against the person who offered to be bound as aforesaid, be conclusive proof of the matter stated. Relying on this provision of law, learned counsel stated that despite statement of Mr. Muhammad Zulfiqar, learned Rent Controller was bound to decide the case in accordance with the provisions of law contained in section 13 of Ordinance 1959.
Precedents referred to at Sr. No. 1 to 5 have been taken note of in the case of Lal v. Siddique and others P L 1) 1961 (W.P.) Lah.
829. It has been observed: "It seems to us that the true test for determining whether or not a decree should be regarded as a consent decree, lies in ascertaining the real intention of the parties, and not merely whether a particular procedure, for example the one embodied in Order XXIII, rule 3, C.P.C, has been observed.
If, from the circumstances of the case, the real intention of the parties can be gathered to the effect that they are binding themselves to a particular decree by reason of an agreement, compromise or adjustment then the decree must be regarded as a consent decree, from which no appeal would lie in accordance with section 96(3). Of course, can be said that most of such cases would fall within the purview of Order XXIII, rule 3, C.P.C. but there may be cases not falling strictly within the four corners of this rule, which would nevertheless be cases of consent decrees. This then is our answer to the first question As we are, on the subject of the meaning of the term "consent decree" we think it would be convenient to take up the third question at this stage, viz. whether a decree granted on the statements made on oath by a party to the suit or witness to whom it is offered by the opposite party is a consent decree and, therefore, not appealable under section 96(3) of the Code of Civil Procedure. The relevant provisions of the Oaths Act of 1873 are sections 8, 9, 10 and 11. Section 8 confer on the Court the power to tender any form of oath or solemn affirmation which is common amongst, or held binding by persons of the race or persuation to which the party or witness offering to give evidence on oath belongs. Section 9 prescribes the procedure to be bound by any such oath or solemn affirmation as it mentioned in section 8 of the Act. It contemplates that on an offer of this kind being made, the Court may enquire from the opposite party, or witness, whether he will make the oath or affirmation. If such party, or witness, agrees to make such oath or affirmation, then section 10 empowers the Court to proceed to administer the oath, or to issue a Commission for this purpose. When evidence has been given on oath or solemn affirmation administered under section 10, then section 11 prescribes that the evidence so given shall be conclusive proof of the matter stated as against the person who offered to be bound by such oath".
' Their Lordships then considered several precedents and finally recorded their opinion in para. 17 of the judgment which for facility of reference is reproduced in extenso:-- "There can be no doubt that the Oaths Act does not concern itself with any agreement, compromise, or adjustment in a suit. It only provides for a procedure by which certain facts may be held to be conclusively proved as against the party which offers to be bound by the oath administered under the Act. To that extent, therefore, we are in respectful agreement with the view expressed in the authorities mentioned in paragraph 14 supra but we cannot subscribe to the view that where a decree follows in respect of the whole or part of the subject-matter of a suit on the basis of a statement made by a party, or a witness, on oath, in pursuance of the agreement of the parties to the suit the decree should not be regarded as a consent decree. We prefer to follow the view so ably expounded by Suleman, C.J. in Mst. Akbari Begum v. Rehmat Hussain and others. We have already stated that in order to ascertain whether a decree is a consent decree or not, we must ascertain the true intention of the parties in adopting a procedure which departs from the ordinary. When there is an agreement between the parties that the suit be decided in accordance with the statement made on oath by one of them, and that party does take the oath in accordance with the agreement, there is nothing left for the Court to adjudicate and a decree must follow on the basis of the statement made on such oath. In our view, it can be said that in such a case the agreement between the parties has matured into an adjustment, once the oath is taken and, therefore, the decree that follows is nothing but consent decree. Of course, if the intention of the parties is nut to obtain a decision of ihe whole or part of the subject--matter of the suit, but is only confined to finding a short cut for the proof of some fact or facts in controversy by means of a statement on oath, no decree can immediately follow such oath and the question of determining the nature of the decree in such a case does not really arise."
5. The case of Riaz Ahmad v. Muhammad Ismail and two others PLD 1976 Lah. 1320 has no application to the facts of the case under consideration. In the instant case, the petitioner-tenant offered a Special Oath to the opposite party for decision of the controversy arising between them.
Oath was taken and the statement made as proposed. The intention of the parties as to obtain a decision of the whole of the subject-matter and not a part of it. Therefore, the moment statement was made, the entire controversy stood resolved. Nothing was left thereafter to be decided by Rent Controller except to make an order in accordance with the agreement of the parties earlier arrived at. In view of the rule of law laid down in Lal v. Siddique and others PLD 1961 Lah. 823, the ejectment order clearly was a consent order. The contention of learned counsel that even if it be assumed to be a consent order, still, it was appealable under section 15 of the Ordinance which provides a complete code by itself. True, there is no such bar as is found in section 96(3), C.P.C. but then after a party had consented to the making of a particular order, there is nothing left for him to appeal against. After all, it was he who invited the Court to adopt a particular procedure different from the one provided in the Ordinance and after the decision had gone against him, it did not lie with him to complain against the making of the order to which he himself was a party. It has been observed in the case of S.E. Makudam Muhammad v. T.V. Muhammad Sheikh Abdul Qadir and another A 1 R 1936 Mad. 85 that when a party invites the Court to adopt a procedure which is not contemplated by the Code of Civil Procedure and is in fact a procedure extra cursum curaie, he cannot turn round and say that the Court is to blame for adopting the very procedure which she invited the Court to follow. There is such a thing as estoppel apart from the question of adjustment and the doctrine of estoppel would apply to a party who attempts to blow not hot could in this fashion In this particular case it is clear that the decree passed by the District Munsif must be deemed to be a decree passed with consent of both the parties and it is not open to either party to appeal from it"
Language of section 15 and its consideration leads to only one irresistible conclusion that despite absence of a parallel provision like subsection (3) of section 96 of the Code of Civil Procedure in section 15 of the Ordinance, an order passed with consent of the parties is not appealable. Section 15 of the Ordinance confers a right of appeal on any party aggrieved by an order. There can possibly be no grievance left after a party has consented to making of an order. In this view of the matter, I am of the view that the order of eviction passed with consent on the basis of a statement made on Holy Quran could not be subjected to challenge in first appeal before the learned Additional District Judge. Learned first appellate Court, therefore, has not committed any error of law, if it held that the order being a consent order was not appealable. At this stage, I must attend to the contention of learned counsel that the Rent Controller could not have decided the ejectment petition under Oaths Act, 1873. The contention has no merit in view of the settled law. Reference may only be made to the cases of Jamal Din v. Haji Muhammad Aslam PLD 1965 Lah. 503, Zaka- ud-Din alias Billa v. Muhammad Ismail PLD 1981 Lah.
438. The rule of law laid down in Zaka-ud-Din alias Billa v. Muhammad Ismail PLD 1981 Lah. 438 was approved by the Supreme Court in Zaka-ud-Din alias Billa v. Muhammad Ismail 1982 SCMR 1197(2), Atiq Ullah v. Kifayat Ullah 1981 SCMR 162. The Rent Controller, therefore, acted with jurisdiction in deciding the ejectment petition on the basis of a statement of Mr. Muhammad Zulfiqar. Doctrine of estoppel acted with full force against the petitioner-tenant. Statement made under Special Oath by Mr. Muhammad Zulfiqar was perfectly in accordance with the proposed offer. There was no departure. Therefore, the Courts below did not violate any principle of law in passing eviction order against the tenant. Learned counsel for the petitioner has not been able to show any illegality or irregularity in exercise of jurisdiction which can attract interference in constitutional jurisdiction. Legislature has withdrawn right of second appeal in rent matters. Scope of interference in constitutional jurisdiction is limited and is exerciseable within certain defined legal limits. The facts of the case under consideration do not qualify for suet) interference in discretionary jurisdiction. The petition is devoid of merit, it fails and is dismissed hereby in limine.