It is a revision petition arising out of a suit, wherein the respondent-- plaintiff sought a declaration that Mutation No.24 dated 6-11-1982 tending to convey his land to the petitioner-defendant, was illegal, void and ineffective on the ground of fraud and absence of consideration. As a result, he claimed himself to be still the owner thereof.
2. The respondent's son was involved Corking murdered his own first cousin. Their paternal grandfather allegedly effected a compromise whereby the land in suit measuring 100 Kanals was mutated in favour of the petitioner Ata Muhammad, who in due course was supposed to have distributed it among the heirs of the deceased by way of compensation. The deceased's heirs subsequently, however, did not agree to abide by the settlement whereupon the plaintiff challenged the mutation stating that he had been defrauded and that after failure of the compromise he continued to be its owner.
3. The suit was resisted, certain issues were framed, and when testimony of the petitioner- defendant was being recorded, he made an offer to be bound by a statement of the respondent Ramzan on the Holy Quran if he had not purchased the land and that instead he had obtained it from him in pursuance of a compromise relating to the murder case. The learned Civil Judge without formally closing his deposition recorded this offer in the next succeeding line, obtained the consent of the opposite side, recorded the latter's statement on the special oath, read it out to him and closed it in a formal manner. However, after the special oath was executed, the petitioner tried to resile from it at the behest of his counsel, but the attempt was disallowed. The Court took the view that after the offer was accepted and even the statement was made on oath, there was no occasion left for the petitioner to go back upon it. It decreed the suit in accordance with the statement. The petitioner's appeal also failed and he preferred the present revision petition.
4. Ch. Ghulam Hussain, Advocate for the petitioner canvassed that the offer and acceptance having not been written separately were not tenable in law; the relevant statement was inchoate inasmuch as no consequence was provided in case the oath was taken or, correspondingly not taken; recording such an offer in the course of a witness's testimony was nothing more than a sporting gesture as could not be acted upon in view of the ratio of Aziz-ur-Rehman etc. v.
Muhammad Afzal Khan etc. PLD 1956 (W.P.) Pesh.55; the statement did not constitute a contract or a settlement in terms of Order XXIII, rule 3, C.P.C., or even in accordance with the provisions of the Oaths Act; and lastly, that in terms of Ghulam Qadir v. Fazal Din etc. 1971 SCM R 537 and Mst. Asifa Sultan v. Honest Traders, Lahore etc. PLD 1970 SC 331 it was open to the petitioner to have resiled from it. He added that procedure-wise the offer and acceptance were just a jumble-up with the basic testimony of the D.W. Without making it clear as to whose statement was closed, or to whom it was read over, or who admitted it to be correct. He observed that the closing phrase "read over and admitted correct" was not distinguishably relatable either to the witness's statement or that of the respondent making the oath.
5. Considerable stress was laid on the fact that the so-called offer having been made sportingly in the course of cross-examination was indeed not a proposal as held in the Aziz-ur-Rehman etc.'s case so as to constitute a contract. Apparently the argument has some substance as really the petitioner held out the. Offer impromptu in the course of cross-examination and the ratio of the precedent case helped him to urge that he could not be bound by it. But this fact alone may not be all to evaluate the adjustment of the dispute between the parties. In Lal v. Siddiq and others PLD 1961 (W.P) Lah. 823, which contained a classic discussion of the relevant provisions of law relating to consent decrees, it was remarked in para.25(i) that: "(i) A consent decree is a decree passed by the Court on the basis of a proposal made by one party and concurred in or agreed to by the other ....The true test for determining whether or nor 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 of Civil Procedure Code, 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 .....
It will be appreciated that the test was not any typical format of recording the offer and acceptance so as to constitute a contract binding upon the parties. Instead, the test was to gather the true intention of the parties from the circumstances of the case and if it could be found that they really meant making an adjustment through an agreement or compromise, the decree based thereupon shall be treated as consent decree. Applying this test to the present case one could quite explicitly see that the offer even though made in the course of cross-- examination, reflected a genuine attempt on the part of the petitioner to be bound by a statement of the apposite party on the Holy Quran in regard to return of the land. The context in which he felt like making the offer did not exhibit if any undue influence or unholy pressure was being exerted upon him. He happened to give sensible answers to a series of questions put to him in the cross-examination but somehow feeling confident of the genuineness of his version held out the offer which in turn was not something ordinary inasmuch as he tried to persuade the opposite party to swear by the Holy Quran. If the latter accepted it, the contract had become complete. There was no occasion thereafter left for the petitioner to wriggle out of the commitment. Not only the case of Lal referred to above holds that. Acceptance of such an offer would make it a contract but also the Supreme Court in Attiqullah v. Kafayatullah 1981 SCM R 162 has categorically enunciated that acceptance of such an offer turns it into a formidable contract leaving no room for the proposer to manoeuvre out of it. I think the later precedent clinches the matter against the petitioner. It was remarked in Lal's case that the Oaths Act did not concern itself with any agreement, compromise or adjustment in a suit as it only provided 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 thereunder. It expounded further that where there was 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 a statement made on such oath. It was observed in para.25 (iii):- "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 a consent decree. As already stated, 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."
Sections 8, 9 and 10 of the Oaths Act did not provide any specified Procedure for administering special oaths. In fact, the procedure is not something very relevant in this behalf. Only the parties' intention had to be translated and if it could be demonstrated from the record that they unmistakable wanted to get their dispute settled by making a special oath, there will be no option left with the court to avoid it. The decree to be passed in accordance with such an oath would be deemed to be a consent decree. In this case it was more than clear that the petitioner felt bound by the respondent's oath on the Holy Quran. Even if, therefore, some procedural defect was left out, it would not relieve the petitioner of his overture.
6. The contention that the trial Court had messed up the two statements would not be much availing because one could read quite conveniently where the offer was made, where it was accepted, and where the oath on the Holy Outran taken. Likewise, the contention that the closing phrase "read over and admitted correct" was not distinguishably shown to have been applied either to the statement made on oath or the statement of the petitioner as a witness was quite inconsequential. The sequence of the events establishes that the petitioner abandoned his statement as a witness as he by making the offer thought that the suit could be best adjusted in accordance therewith. The offer was put to the respondent and on his acceptance thereof he was made to swear by the Holy Quran. He made a statement accordingly which was formally closed by the phrase ---read over and admitted correct.--- This is how the closing part could be visibly related to the statement made on the Special Oath by the respondent. The confusion, if any, was unduly stressed with a view perhaps to get out of the mire.
There was no violation of Order XVIII, rule 5, C.P.C., nor was the ratio of Muhammad Akbar etc. v.
Muhammad Aslam etc. PLD 1970 SC 241 attracted. Still further, the objection that the offer and acceptance were inchoate in-so-far as those did not provide for any penalty in case the oath was made or not. The entire background had to be kept in view. The respondent was claiming back the land on an assertion that he had earlier given it as compensation for a murder. Unfortunately the case relating to murder ultimately could not be compromised. He sought its recovery as the consideration for which it was passed off had failed. The petitioner initially contended that he had purchased it but then he thought of getting it settled through the special oath which established that the transaction was made for no other consideration than compounding an offence. It was not the petitioner's case that the offence was ultimately compounded and the corollary obviously was that the land had to be returned to the respondent. This is what was the background in which the special oath was offered, accepted and executed. It could not be said that it was something inconsequential, having not provided for any penal result or otherwise in case the oath was made or not. The objection has no force.
7. Counsel tried to show that the compromise, if any, was bad in law as it tended to stifle prosecution. The point is too far-fetched as the prosecution was said to have already succeeded in convictions. Lately. Compromises have been allowed even in criminal cases as extenuating circumstances. Abdul Rashid etc. v. The State 1988 SCM R 868 is one of such instances. Again, relying upon the above Ghulam Qadir's case, counsel maintained that the petitioner could resile from the compromise. It is difficult to accept this proposition because the later view as reported in the Attiqullah's case was that the compromise becomes a contract which could not be rescinded or revoked.
8. For all these reasons, no exception could be taken to the impugned order. The revision petition is dismissed leaving the parties to bear their own costs.
M.Y.H./A-734/L