1. ' MIR HAZAR KHAN KHOSO, C J.--This appeal is directed against judgment and decree dated 26-8- 1989 passed by learned Additional District Judge-II, Quetta whereby claim was settled on the basis of special oath administered to plaintiff/respondent.
2. Facts briefly stated are that on 16-2-1986, respondent filed a suit for specific performance of contract in respect of land situated in Ward No,27 Tehsil Quetta. It was alleged that by virtue of agreement dated 6-3-1984 appellant had agreed to sell 20,000 sq.Ft. Of land at the rate of Rs,30 per sq.Ft. And possession thereof was delivered to him. Whereas after measurement land was found to be 33,000 sq.Ft. Therefore excess area of land was also sold on the already agreed rates.
2. Appellant contesting the suit, pleaded that an area of about 42,000 sq.Ft was actually leased out to respondent through agreement dated 31-12-1983, which is being grabbled by him. The transaction of sale was however denied.
3. ' Keeping in view the pleadings, trial Court framed following 7 issues:--
(1) Whether the plaintiff has no locus standi to file the present suit?
(2) Whether the suit is not properly valued and deficient court-fee has been paid? If so to what effect?
(3) Whether the document relied upon by the plaintiff is not properly stamped? If so to what effect?
(4) Whether the defendant has entered into an agreement to sell with the plaintiff for the disputed land?
(5) Whether the defendant has failed to perform his part of contract?
(6) Whether the house described in para. No,2 of the plaint was given to the defendant towards the payment of sale? If so, what was the amount of consideration.
(7) Whether the plaintiff is entitled to the relief claimed for? If so, what should he the relief?
(8) Relief.
4. ' Plaintiff/respondent examined 3 witnesses namely (i) Murtaza, (ii) Lala Khan and (iii) Muhammad Nasim to substantiate his claim. Appellant despite seeking 3 clear adjournments, could not produce evidence which was accordingly closed. It is alleged that appellant furnished a list of 12 witnesses and deposited diet money after closure of his evidence and sought review of earlier order, seeking permission to produce evidence, but same was rejected. Thereafter appellant was examined in rebuttal. It may be seen that appellant aggrieved from the closure of evidence filed Revision Petition which was withdrawn in view of observation that such orders could he challenged even in appeal against final decision in the case. The matter was fixed for arguments on 26-8-1989 when appellant submitted an application under Article 163 of Qanun-e-Shahadat, 1984 praying that plaintiff/respondent may be called upon to take oath on Holy Qur'an in support of his suit. It is worthwhile to reproduce relevant portion of application because points of controversy revolve around its interpretation:- "4. That the above-mentioned circumstances reveal that the plaintiff has not come before this Court with clean hands rather he intends to have the decree in his favour on the basis of misconceived and baseless facts. Therefore keeping in view the above-mentioned situation, it would be proper that the plaintiff may he put to take oath under section 163 of Qanun-e-Shahadat, 1984, and if the defendant did so, then it would also facilitate this Hon'ble Court to decide the matter in accordance with law without hearing any arguments on facts as well as on law points?"
5. ' On the same date, learned lower Court observed that application under section 163 of Qanun-e- Shahadat, was not maintainable. The said application was treated for special oath, which was however administered to plaintiff/respondent when he explained that 33,000 sq.Ft. Of land was purchased by him from appellant at the rate of Rs,30 per sq. Ft., and had paid sum of Rs,8,05,000 out of sale consideration. Consequently, upon said special oath, suit was decreed. Appellant has now preferred this appeal challenging validity of prodeedings drawn in the matter and decree passed by the trial Court.
6. ' Mr. Muhammad Aslam Chishti, learned counsel for appellant emphatically contended that application was submitted by appellant under section 163 of Qanun-e-Shahadat, therefore trial Court was bound to adopt specific procedure prescribed under aforesaid provision of law.
7. According to him trial Court did not have jurisdiction to administer special oath and decide the matter on that basis. He insisted that parties had never agreed for special oath, therefore, impugned judgment/decree was patently defective and unlawful.
8. ' Whereas Mr.Tahir Muhammad Khan, learned counsel for respondent strenuously contended that though application was styled under section 163 of Qanun-e-Shahadat, yet actually meant for giving special oath to plaintiff/respondent ' He canvassed that obviously appellant had already examined substantial evidence for establishing his claim in suit and appellant on account of negligence could not adduce anything in rebuttal. In the circumstances according to him parties voluntarily agreed for deciding the matter on Holy Qur'an and thus contract/arrangements in this behalf and reaffirmed signatures of respective counsel and parties, clearly signify their approval for special oath.
9. ' It was canvassed that parties consciously accepted result of oath which was announced by the Court on the spot. He, therefore, submitted that objections now being raised by appellant were not tenable. Learned counsel argued that it being a consent decree, no appeal was at all permissible.
10. ' Firstly it may be seen that application filed by respondent was apparently moved under section 163 of Qanun-e-Shahadat, 1984. However operative portion of said application suggests intention of appellant to offer oath to plaintiff/respondent; thereby seeking final decision of the dispute on that basis without resorting to arguments or referring to facts or law point. Evidently Article 163 of the Qanun-e-Shahadat, 1984 shows that if aggrieved party i.e. Plaintiff in the suit does not have evidence to support his claim, then he may pray for determination of dispute on oath; and if respondent refutes the allegations on oath whereupon the Court in its discretion may reject the claim in suit. Procedure and effect of oath within the purview of Article 163 of Qanun-c-Shahadat have been discussed in case Khan Sher v. Mst. Kabla and another PLD 1988 Pesh.
65. Relevant observations in Para. 5 are reproduced below:-- "5. In the context reference is further made to Islami Qanun-e-Shahadat complied by Abdul Malik Urfani 1980 Edition, Part (1). In Chapter XIV, titled, `Qasam' it is laid down in section 92 subsection (1) that when a person gives evidence in Court as a witness he shall take oath before producing his evidence that he shall state the truth and only the truth in his evidence. In subsection (2) it is laid down that besides the aforesaid oath as and when there will be taken oath, the same will be a Special Oath which will be taken in the form and shape on demand of a person according to Riwah' and as specified by the `Qazi'. Again in subsection (3) ibid it is laid down that in the book wherever there is a reference to oath, the same shall be a reference to special oath as provided under subsection (2). In the illustration it is reported that in the early days of Islam witnesses were not given oath before recording their evidence but when falsehood became common, theologians, prescribed oath to the witnesses at the time of giving evidence. In the illustration it is further laid down that a witness is given common oath before his evidence and whenever there is felt a necessity to make a statement on oath it will be always on a special oath as prescribed by the `Qazi' in accordance with prevalent custom and that the Holy Prophet (p.b.u.h.) has referred to the special oath to be taken from the defendant. In section 93 it is provided that where there has been given evidence by the witnesses against a person, he can demand before the pronouncement of judgment from the `Qazi' that the witnesses be obliged to take oath if they have spoken the truth and in case of their denial such evidence of the witnesses may be rejected. In section 94 there is laid down that when plaintiff cannot produce a second witness and for the proof of his claim he offers to take oath as testimony of a second witness Qazi may take oath from him. In the illustration it is stated that if the plaintiff has produced one witness in support of his claim and has also given a special oath in further support it shall be deemed that he has produced two witnesses in support of his claim. In section 95 it is laid down that when plaintiff fails to prove his claim by the evidence of witnesses and the defendant denies his claim then on his demand Qazi shall call upon the defendant to deny his claim on oath and in case the defendant refuses to take oath the case shall be decided against him and if he takes the oath plaintiff's case shall be dismissed. In the said section it is also laid down that if the plaintiff's witnesses are present in Court defendant cannot be obliged to deny the plaintiff's claim on oath. In section 96 it is laid down that oath can be taken in case of all claims except Hudood, Laan and Qisas."
11. ' Whereas factual position in this case is that plaintiff-respondent had led substantial evidence in support of his claim and appellant-defendant despite several opportunities had failed to adduce evidence in rebuttal. The circumstances clearly suggest that appellant intended to bind plaintiff/respondent by administering him special oath and thus claimed disposal of suit on the basis of such oath without any further proceeding or reference to record. Thus in our opinion mere wrong mention of proper provisions of law does not impede disposal of application. Accordingly insertion of Article 163 of Qanun-e-Shahadat, 1984 has no legal effect. Besides factum of taking oath was incorporated by the trial Court in impugned order dated 26-8-1989. It was expressly specified that appellant agreed to passing of decree in accordance with special oath of plaintiff/respondent on Holy Qur'an. This arrangement has been further ratified by signatures of parties and their counsel at the end of consent order passed by trial Court on 26-8-1989. Evidently settlement to decide the matter on oath constitutes valid agreement from which parties cannot conveniently wriggle out unless contract is ex facie shown to be void or incapable of implementation. This aspect is elaborately discussed in following reported judgments of Hon'ble Supreme Court and are directly applicable to the points involved in the instant case. For better appreciation relevant observations from said reports are reproduced below:-
(i) Mst. Asifa Sultana v. Honest Traders, Lahore and another PLD 1970 SC 331.
12. "It will thus be noticed that there is no section in the Oaths Act dealing with the question whether a party making an offer to abide by a statement on oath, or special oath by another party or witness can resile from such an offer. This question, therefore must be decided on general principles of law.
13. This aspect of the question was recently considered by a Bench of this Court in the case of Muhammad Akbar and another v. Muhammad Aslam and another. It was held in that case as under:-- "The correct position, therefore, is that the agreement dated the 3rd November, 1963, that the matters in dispute may be decided in accordance with the statement of Abdur Razzak was in the nature of a contract and the trial Court could in its discretion decline to hold the appellants by it.
14. The exercise of discretion will depend on the facts and circumstances of each case.
15. This principle is applicable to the facts of the present case. The offer to abide by the oath of the opposite-party and its acceptance by the other party was in the nature of an agreement and the question whether the party who offered can resile from it depends on the facts and the circumstances of each case.
16. ' It will thus be noticed that the view taken by the High Court is in accordance with the view taken by this Court in the above-mentioned decision. The learned Single Judge of the High Court also held that the question whether the contract should be performed or not depends on the discretion of the Court. The learned counsel for the appellant has contended that the learned trial Court did not exercise, the discretion vested in it properly. We have gone through the facts of the case and are of the opinion that in the circumstances of the present case, the learned trial Court was perfectly justified in exercising its discretion in favour of the respondents. There is a clear finding against the appellant that her attorney Malik Fazal Hussain had bragged and adopted blasphemous attitude in respect of the oath. In view of the findings, the learned trial Court was perfectly justified in holding that it was in the interest of justice not to force the respondent to abide by his agreement to get the dispute decided by the oath of the Attorney of the appellant.
(ii) Attiqullah v. Kefayatullah 1981 SCMR 162.
17. "After considering a number of authorities, the Court observed that since no section of the Oaths Act deals with the question whether a party making an offer to abide by a statement on oath by another party or witness can resile from such offer. Therefore, this question must be decided on general principles of law. The learned Court observed further "The offer to abide by the oath of the opposite-party and its acceptance by the other party was in the nature of an agreement and the question whether the party who offered can resile from it depends on the facts and circumstances of each case." It was held in the said case that in the circumstances of that particular case, the learned Court was justified in exercising its discretion in favour of the person making the offer and permitting him to resile from the same. The matter was clinched in a subsequent judgment of this Court i.e. Saleem Ahmed v. Khushi Muhammad (1) where the same question came up for consideration. In that case the defendant offered that if Wali Muhammad, the brother of the plaintiff took an oath on the Holy Qur'an in respect of the matter in issue, he would agree to a decree being passed on the basis of such a statement in favour of the plaintiff. The next day, however he made an application saying that he had learnt from the people of the village that Wali Muhammad was a habitual liar and was accustomed to taking false oaths. He therefore, wanted to withdraw his offer. The learned Court, however, recorded the statement of Wali Muhammad on oath and the case was decided against the defendant who challanged the said order before the High Court through a revision petition, which was dismissed. Saleem Ahmed then filed a petition before this Court which upheld the decision of the High Court in the following words:--"
18. "The High Court rejected both the contentions and held that there was not ground in law or in equity on which the petitioner could claim the right of resiling from the solemn agreement which was entered into by him. Such an agreement was in the nature of a contract and one of the contracting parties could not he allowed to back out of it unless the contract was void or had become frustrated. None of these eventualities had occurred in this case."
19. ' We notice that in the present case also the petitioner had not raised any objection or alleged any facts on the basis whereof the trial Court (or for that matter this Court) could either reach the conclusion that the contract was void or had become frustrated. As such we are of the view that the learned trial Court was justified in refusing to permit the petitioner to resile from his offer and he bound by the oath."
20. 'The trial Court was thus justified in passing the decree on the basis of special oath taken by plaintiff-respondent. It did not lie subsequently to the appellant to resile from the offer which was duly acted upon.
21. ' Any how Mr. Muhammad Aslam Chishti, vehemently emphasised that basically application submitted by appellant was under Article 163 of Oanun-e-Shahadat, 1984; therefore it was obligatory on the Court to have provided the appellant opportunity of denying the claim as specified under the law. We are afraid, that such stand would certainly vitiate object of special oath; because plaintiff in this case had already examined evidence to substantiate his claim, but appellant could not produce it in rebuttal. Thus circumstances were indicative that appellant wanted to arrive at independent arrangement for the determination of dispute by offering special oath to plaintiff/respondent so that matter could be decided accordingly. Now considering background of case, the incornoration of facts in the impugned order and reaffirmation of agreement for taking special oath by way of signature of appellant, his counsel constitute sufficient proof, that impugned order and decree is quite lawful. Appellant cannotbe permitted, to take any somersault or resile from 'Oath' which has been factually acted upon.
22. This is also pertinent to note that appellant did not make any immediate protest concerning passing of decree on the basis of special oath administered to plaintiff.
23. ' Admittedly respondent filed Civil Execution Application No,10/1989 before Additional District Judge, Quetta wherein appellant did not object to the validity of decree passed in the matter. Rather merely mode of effecting mutation for the implementation of impugned decree has been challenged. Appellant expressed his grievance that if choice concerning portion of excess land belonging to appellant is not allowed towards road side, he would suffer heavy losses. The objection only relates to mode of partitioning the suit land between the decree-holder and judgment-debtor. This position is clearly reflected from the order of trial Court dated 28-10-1989 passed during aforementioned execution proceedings. Accordingly subsequent pleas raised in the memo of appeal filed on 25-11-1989 being an afterthought and attempt to wriggle out from contract of Special Oath validly arrived at between the parties, for settling the dispute have no legal sanction. In such view of the matter 'Appeal is apparently incompetent. Furthermore settlement on oath between the parties has resulted in a consent decree which is not appealable as held in Rahmat Ali v. Muhammad Yousuf 1985 CLC 72.
24. ' For the above reasons we do not find any merits in the appeal which is directed to he dismissed.
25. ' This appeal was dismissed by short order dated 24-9-1990, and here are reasons for the same.