' This regular second appeal has arisen out of a suit for specific performance of an agreement to sell certain land. The suit was filed by the appellants, Muzaffar Ali and two others, against the respondent, Ch. Asghar Ali, in the Court of the Senior Civil Judge, Lahore. During the pendency of the suit, it was stated by two of the appellants, namely, Muzaffar Ali and Shaukat Ali, and by learned counsel for the three appellants that if the respondent made a special oath, on the Holy Qur'an, to the effect that he had not signed or thumb marked the deed in respect of the agreement in question nor did he receive any amount in connection with the said agreement, they will have no objection to the dismissal of their suit. Their offer in this regard was accepted by the respondent.
On this, Mirza Hafeezur-ur-Rehman, Advocate, was appointed as a Local Commissioner to administer the prescribed oath to the respondent in a mosque, which was done by him. Report in this behalf was made by the Local Commissioner. On the submission of the report, it was stated by the parties' counsel that they had read the report and had no objection thereto. Thereafter, the suit was dismissed by the Senior Civil Judge, leaving the parties to bear their own costs. Judgment and decree passed by the learned trial Court were challenged by the appellants by taking appeal before an Additional District Judge but in vain. Hence this second appeal.
2. It was contended by learned counsel for the appellants that the respondent had practised fraud on the learned trial Court in securing decision in his favour and, therefore, the judgment and decree passed by the said learned Court deserved to be set aside. His argument was that in another suit which was for partition of land, including the land involved in the agreement in dispbte, the respondent had made an application admitting receipt of Rs,66,000 and, therefore, he had lied while making oath to the effect that he was not paid anything in respect of the agreement in dispute. In this connection, he drew my attention to certified copy of the application, dated 25th April, 1982 which forms part of the record of this Court. He also referred me to paragraph 3 of the written statement submitted by the respondent in the suit giving rise to this appeal. In that paragraph also he had admitted the receipt of Rs,66,000. Learned counsel relied on Saleem Ahmad v. Khushi Muhammad (1974 SCMR 224) and Mst. Asifa Sultana v. Honest Traders, Lahore and another (PLD 1970 SC 331) to support his argument.
3. Another plea raised by learned counsel for the appellants was that as one of the appellants, namely, Akhtar Ali, was not a party to the oath proceedings, he was not bound by the judgment and decree which were passed on the basis of the said proceedings. According to him, his counsel, Mr. G. Haider Alghazali, Advocate, had no authority to accept the offer of special oath. Strangely enough the Vakalatnama of Mr. G. Haider Alghazali is not on the file of the learned trial Court. Its photostat copy is, however, available on the record of the appellate Court. It is in English and there is no specific mention to the effect that the said learned Advocate would have authority to agree to the settlement of the dispute on the basis of special oath. Precedent case cited by learned counsel for the appellants in support of his contention that Akhtar Ali appellant was not bound by the statement of Mr. G. Haider Alghazali is that of Din Muhammad and another v. Farooq Mirza (PLD 1955 Sindh 62).
4. On the other hand, it was submitted by learned counsel for the respondent that the application, dated 25th April, 1982, relied upon by learned counsel for the appellants, could not be made use of by him because that was not part of the record of the proceedings giving rise to this appeal.
Admittedly, the said application was filed in the aforementioned suit for partition. It was also maintained by him that the amount of Rs,66,000, mentioned in paragraph 3 of the written statement of the respondent and in his application, referred to above, related to a transaction other than the agreement in question. This has been explained in paragraph 3 of the written statement. It was further pointed out by learned counsel for the respondent that the amount of earnest money mentioned in the agreement deed in question, which was allegedly paid to the respondent, was Rs, 84,000 and not Rs, 66,000. As for the authority of Mr. G. Haider Alghazali, Advocate, to make statement on behalf of Akhtar Ali appellant, the contention of learned counsel for the respondent was that Mr. G. Haider Alghazali was duly appointed counsel of Akhtar Ali and, therefore, Akhtar Ali was bound by his statement. He referred to the cases of Haji Mewo and another v. Mst. Lal Khatoon (PLD 1962 (W.P.) Karachi 162), Ghulam Abbas v. Ajmal Shah and others (1989 SCMR 1124 (2)), Amir and another v. Muhammad Bakhsh and others (AIR 1929 Oudh 56) and Mathura Prasad and others v. Sita Ram and others (AIR 1940 Oudh 314) to substantiate his plea.
5. I am unable to appreciate the plea of fraud raised by learned counsel for the appellants. As stated above, initiative in connection with the decision of the suit on the basis of special oath was taken by the appellants. Obviously, when they had made offer in this behalf, it was known to them that in the said application as well as paragraph 3 of the written statement the respondent had admitted the receipt of Rs,66,000. Despite all this, they offered to settle the dispute on the basis of special oath prescribed by them. The respondent simply accepted their offer and it is difficult to say that while so doing, he had played fraud on the Court. There would have been some force in the argument of the learned counsel for the appellants, if the offer had been made by the respondent but since the offer had emanated from the appellants themselves, fraud cannot be attributed to him. It is also noteworthy that even after the respondent had made the prescribed oath, the appellants did not protest by saying that his oath was false. Instead, their learned counsel made express statement to the effect that he had no objection to the report of the Local Commissioner, embodying the wording of special oath, and thereupon, the suit was decreed by the learned Senior Civil Judge. In the circumstances, respondent's admission with regard to the receipt of Rs,66,000, which was known to the appellants all through, is of little avail to them. Also, as explained above, according to the respondent the said sum related to a different transaction.
6. Learned counsel for the appellants agreed to the proposal relating to special .Oath with open eyes and having full knowledge of the background of litigation amongst the parties and did not raise a syllable of protest after the special oath was made. Plea of fraud is an afterthought. It is, in fact, an attempt on their part to wriggle out of the solemn commitment made by them. Neither before nor after the making of oath, they formally retracted from the agreement in this regard.
7. As for the precedent cases relied upon by learned counsel for the appellants, in the case of Saleem Ahmad, a party to the agreement to decide the suit on the basis of special oath made an application to resile from the said agreement. The application was filed before the oath was administered. Despite that it was held by the Supreme Court that the party making the application was bound by the oath. In the instant case no such application was ever made. The case of Saleem Ahmad is, therefore, distinguishable on facts and of no avail to the appellants. In the case of Asifa Sultana too, there was an application like the one referred to above, and the learned trial Court had found that the allegations made therein were correct. There is, however, no application in the instant case nor there is any finding of the trial Court to the effect that fraud had been practised on the appellants in the matter of oath. Accordingly, the case of Asifa Sultana is also of no help to the appellants because its facts are different from those of the case before me.
8. Whether fraud was practiced on the appellants in relation to oath proceedings was a question of fact. If the appellants were serious in agitating that question they should have raised it before the learned trial Court to enable it to have affidavits or record evidence thereon and then give a finding as done in the case of Asifa Sultana. No such effort was made by the appellants. Instead, their learned counsel stated in unequivocal terms that he had no objection to report relating to the administration of special oath. It is, therefore, too late in the day for the appellants to assail the oath proceedings on the ground of fraud.
9. In view of the above discussion, I am not impressed by the plea of fraud. The said plea is, accordingly, rejected.
10. This brings me to next argument of learned counsel for the appellants. It is with regard to the authority of Mr. G. Haider Alghazali, Advocate, to agree to the oath proceedings. Photostat copy of his Vakalatnama contains following recitals:- "(2). To present pleadings, appeals, cross-objections or petitions for execution, review, revision, withdrawals, compromise or other petitions or &davits or other documents as shall be deemed necessary or advisable for the prosecution of the said cause in all its stages.
(3). To withdraw or compromise the said cause or submit to arbitration any differences or disputes that shall arise touching or in any manner relating to the said cause."
' There is not much difference between agreeing to the decision of a dispute on the basis of special oath and the withdrawal of a suit or entering into a compromise therein. As noted above, learned counsel for Akhtar Ali was authorised to withdraw the suit or enter into a compromise resulting in the disposal of the suit in accordance with the compromise. In the circumstances, although it has not been specifically mentioned in his Vakalatnama that he was empowered to settle the dispute in terms of special oath yet the said two recitals leave little room for doubt that he had the authority to agree to the disposal of suit on the basis of that oath.
11. View taken by me finds support from the observations recorded by a Division Bench of the erstwhile High Court of West Pakistan in the case of Haji Mewo and another, relied upon by learned counsel for the respondent. In the case of Haji Mewo and another, Mr. Abdul Hakim Abbasi, the Advocate representing a female party, namely, Mst. Shafiat, had in her absence, agreed to the settlement of dispute on the basis of special oath. It was contended that Mr. Abbasi had no authority to do so. This plea was rejected by the learned Division Bench in the following words: ' But in the present case Mr. Abdul Hakim Abbasi being an Advocate of the High Court not only enjoyed special privileges of having an implied power to compromise cases on behalf of the parties for whom he appeared but was specially empowered under his Vakalatnama filed in the lower Court to enter into compromise on behalf of both the appellants. In Ramzan and others v.
Gopal Das and others (AIR 1936 Lahore 199), a Bench of the Lahore High Court held as under: ' The power to compromise- an appeal is an implied power inherent in the position of an advocate in India and therefore no power-of-attorney is necessary to empower a counsel to agree to a valid and binding compromise. The power to compromise may be validly exercised by an advocate who has been authorised only to appear.
' In this decision the learned Judges of the Lahore High Court followed the Privy Council decision in Sourendranath Mitra v. Tarubala Dasi (AIR 1930 P.C. 158). In Hata v. Smail and others (AIR 1932 Lah.
414), Jai Lal, J. Observed as under:- ' Any act required or authorised to be done by a party to a suit can be done by his recognised agent provided the act falls generally within the scope of the latter's authority. It cannot be held that an offer to be bound by the oath of the other party must be made by the party personally and not by his duly authorised agent.
' This view is also supported in the cases in Mst. Masita Bibi v. Khuda Bakhsh (AIR 1923 All. 65), Muhammad Mahmud Choudhry and others v. Behary Lal Shah and others (AIR 1930 Cal. 463), Jadu Sahu and another v. Chamra Sahu and others (AIR 1939 Pat. 222) and Narain Singh and others v. Har Bux Singh and others (AIR 1939 All. 312). There is thus preponderance of views in favour of the principle that prima facie a party to the judicial proceedings in sections 8 and 9 of the Oaths Act would include an Advocate of the party also. It appears to us that an Advocate empowered by a party to enter into a compromise etc., is fully competent to make an offer to abide by the special oath and in doing so he must be deemed to have been so instructed by his client. This appears to us to be a well-settled principle of law."
Similar opinion was expressed in the cases of Mathura Prasad and others and Amir and another, cited by learned counsel for the respondent. It may also be mentioned here that there was no clash of interest amongst two of the appellants in the case in hand, who made the offer of special oath, and the third one, namely, Akhtar Ali on whose behalf the offer was made by his counsel. It is not disputed that all three of them are real brothers. Further, no motive has been attributed to learned counsel for the appellants, namely, Mr. G. Haider Alghazali to go against the interest of Akhtar Ali. No application for review was made, to the learned trial Court or before the learned appellate Court. As stated above, the attack of Akhtar Ali on the oath proceedings is an afterthought. Therefore, in view of dictum of the Supreme Court in the case of Ghulam Abbas, cited by learned counsel for the respondent, the appellants' plea against the oath proceedings cannot be accepted.
12. As against the above authorities, there is the solitary case of Din Muhammad relied upon by learned counsel for the appellants. It is a case decided by the former Chief Court of Sindh. It was held in Din Muhammad's case that a counsel could not enter into a compromise unless specifically empowered by his client to do so. Opinion expressed in Din Muhammad's case, however, pales into insignificance in the face of large number of authorities supporting the stand taken by the respondent. Keeping in mind the facts of the case before me and preponderance of views with regard to the authority of learned counsel for Akhtar All appellant to agree to oath proceedings on his behalf, I hold that he was competent to do so, and Akhtar Ali appellant is bound by the said proceedings as well as by the decision founded on those proceedings.
13. Any statement made on oath is a solemn commitment and it is never made lightly, especially by a Muslim. In view of the sanctity of the Holy Qur'an, every Muslim shudders to make oath thereon. Even an illiterate Muslim is aware of the fact that he would incur the Wrath of Almighty Allah if a false oath is made on the Holy Qur'an. English translation of some of the commands of Almighty Allah in this regard is as follows:- ' Turnest thou not ' Thy attention to those Who turn '(in friendship)
To such as have the Wrath Of Allah upon them?
They are neither of you Nor of them, and they Swear to falsehood knowingly. Allah has prepared for them a severe Penalty: evil Indeed are their deeds. They have made their oaths a Screen (for their misdeeds): Thus they obstruct (men)
From the path of Allah: Therefore shall they have A humiliating Penalty.
Of no profit whatever To them, against Allah, Will be their riches Nor their sons: They will be Companions Of the Fire, to dwell Therein (for aye)!
On Day will Allah Raise them all up (For Judgment): then Will they swear to Him As they swear to you: And they think that they Have something (to stand upon): No, indeed! They are But liars!
The Evil One has Got the better of them: So he has made them Lose the remembrance Of Allah. They are the Party Of the Evil One. Truly, It is the party Of the Evil One That will perish!
(Sura Al-Mujadila, Verses 14 to 19 translated by A. Yusuf Ali).
14. It can also be inferred from followng Verse of the Holy Quran that it is not only obligatory for person making oath to abide by it but the person who agrees to the making of such oath has also been ordained to honour his commitment in this regard:- Fulfil the Covenant of Allah When ye have entered into it, And break not your oaths After ye have confirmed them; Indeed ye have made Allah your surety; for Allah Knoweth all that ye do.
(Sura Al-Nahl, Verse 91 translated by A. Yousuf Ali.)
15. By agreeing to make oath on the Holy Quran, the respondent took a very bold step. He was either fully convinced of the truth of his version or he was stupid enough to annoy Almighty Allah and thus suffer the serious consequences thereof, not only in this world but also on the Day of Judgment. Be that as it may, he is bound by his oath and so are the appellants, who agreed to the making of the oath by him. It is no longer open to the appellants to say that the respondent J be deprived of the worldly gain for which the said daring step of oath had been taken by him, especially when the appellants' counsel had not objected to the special oath made by him. In this view of the matter, the appellants cannot be permitted to wriggle out of their commitment and thus nullify the oath proceedings which were taken out at their instance.
16. In result, I hold that the judgment and decree passed on the basis of the oath proceedings are unexceptionable. This regular second appeal, therefore, fails, and is dismissed with no order as to costs. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.