1. NASIM HASAN SHAH, J.---This is a petition for leave to appeal directed against the judgment of a learned Single Judge of the Lahore High Court passed in R.SA.No.618 of 1980.
2. The relevant facts are that Akbar Ali predecessor-in-interest of the petitioners herein had instituted a suit to challenge Mutation No.868 sanctioned on 23-5-1974 claiming that the sale of the land in dispute allegedly made by him in favour of the respondents for a sum of Rs.2 lacs was fictitious, based on fraud, misrepresentation and without consideration and was, therefore, liable to be annulled.
3. This suit was dismissed by the learned Civil Judge, Toba Tek Singh by his judgment dated, 17-10- 1978 and the appeal filed against the said judgment and decree too was dismissed on 26-5-1980 by the, judgment of the learned Additional District Judge, Faisalabad; whereupon he moved the High Court by a second regular appeal.
4. During the proceedings of the second appeal Akbar Ali appellant filed a miscellaneous application (C.M. No. 2493-D/87) under section 163 of the Qanun-e-Shahadat, 1984 wherein he challenged the respondents to deny the plaintiff-appellant's claim by taking a special oath on the Holy Quran. In this connection, it was stated that if Muhammad Akram, one of the defendants, who was a Haji (respondent No.3 herein) swore on the Holy Quran and stated that the consideration for the sale viz. Rs.2 lacs had been paid to the appellant, he would not object to the decrees passed in favour of the respondents being maintained.
5. This challenge was not accepted by the respondents at that stage. But when the matter later came up for hearing before the Court and the same offer was again made by the appellants (the legal representatives of Akbar Ali by then deceased) it was accepted.
6. The offer was contained in the statement of Saif Ali son of Akbar Ali (one of the legal representatives of the deceased-appellant) in the following terms:-- "Under tW6 above oath I make an offer to the respondents that if Haji Muhammad Akram respondent No.3/defendant takes oath on the Holy Quran in the manner have taken oath states that the defendants had made payment of the sum Rs.2,00,000 which had been deposited by them in the Bank Account of the deceased appellant then this appeal and the suit out of which this appeal has arisen may be dismissed and the decree passed in favour of the respondents- defendants by the lower Court be kept intact and maintained."
7. Haji Muhammad Akram, respondent No.3, as already stated, accepted, the offer and took the special oath on the Holy Quran and stated as follows:-- "Under the above oath I state that the sum of Rs.2,00,000 was paid by me to the deceased appellant Akbar Ali the father of Saif Ali who has just appeared and made a statement. In view of my acceptance of the offer of Saif Ali and taking of oath in pursuance thereof and making the statement on oath as called upon the appeal be now dismissed."
8. The learned Judge of the High Court thereupon dismissed the second appeal, directed against the judgments and decrees dated 26-5-1980 and 17-10-1978 respectively passed by the learned Additional District Judge, Faisalabad and the learned Civil Judge, Toba Tek Singh with the result that the said judgments and decrees stood upheld.
9. In this petition for leave to appeal, Ch. Muhammad Hasan, learned Advocate for the petitioners, has submitted that the special oath taken by Saif Ali did not bind the present petitioners because Akbar Ali deceased was succeeded by 4 sons (three petitioners and Saif Ali) and 4 daughters. Saif Ali, who made the offer, however, had been authorised to make it only on behalf of the four daughters and himself but had no authority to make any statement in Court or compromise the suit, appeal etc. On behalf of the remaining three brothers (the petitioners herein) and hence the special oath on the Holy Quran taken by Saif Ali did not bind them. This aspect, according to the learned counsel, was overlooked by the learned Judge of the High Court.
10. However, we find that Mr. Muhammad Nasrullah Warraich Advocate represented not only Saif Ali and his 4 sisters in the High Court but he was the Advocate of the three petitioners before us. Mr. Warraich was present in Court throughout the proceedings, all which took place before him and the order of the Court was also passed in his presence. However, no plea was raised before the learned Judge in the High Court to the effect that the appeal of the present petitioners could not be dismissed in pursuance of the statement on oath made by Haji Muhammad Akram, respondent No.3 in pursuance of the offer of their brother Saif Ali, as the latter did not represent them.
11. We also observe that even Akbar Ali (the father of the three petitioners) had in his application under section 163 ofQanun-e-Shahadat, 1984 himself offered that if the special oath on the Holy Quran was taken by Haji Muhammad Akram, respondent No. 3 and he affirmed that the consideration had been paid, his second appeal may be dismissed. In this background it was natural to think that the offer being made by Saif Ali son of Akbar Ali was being made on behalf of all his legal representatives. The very fact that Mr. Nasrullah Warraich, Advocate, who was representing all the legal representatives (including the three petitioners) did not assert before the learned Judge of the High Court that the said three petitioners were not bound by the statement of Haji Muhammad Akram made after taking the special oath on the Holy Quran shows that at that stage everybody understood that the matter was to be decided on the basis of the special oath.
12. In these circumstances, we are not inclined to exercise our discretionary jurisdiction to grant leave to appeal to the petitioners herein on the basis of the plea raised by them before this Court.
13. The result is that this petition fails and is dismissed hereby.