' This revision petition calls in question the judgment and decree dated 20-7-1991 of the learned District Judge, D.I. Khan which affirmed the judgment and decree dated 17-6-1991 of the learned Civil Judge, D.I.Khn whereby the respondent's suit for possession of a house situate in D.I.Khan City was decreed pursuant to an oath taken by him on the Holy Qur'an.
2. The facts constituting the background of the case in brief are that the respondent Noor Din brought a suit on 18-7-1990 seeking possession of the suit house on the basis of title together with a declaration to the effect that he was its owner and the sale-deed dated 4-1-1970 purported to have been executed by him in favour of his brother-in-law Bhorey Khan, petitioner herein, being fictitious, without consideration and the outcome of fraud was void and ineffective on his rights. It was alleged in the plaint that the suit house was the permanent abode of the respondent since 31- 8-1965 when he had become its owner on the strength of a P.T.D. Though at times he temporarily resided in his second house situate in Village Paharpur where he owned landed property and had also established a small business. That sometime in the year 1969 his sister and her husband namely the petitioner took up residence in the suit house as licensees with an explicit understanding that they shall vacate the same as and when required. That the respondent used to stay in the suit house whenever he visited D.I.Khan and this practice continued even after the death of his sister which took place about six years ago. That a few months prior to the institution of the suit the petitioner started claiming ownership of the suit house on the basis of a spurious sale- deed dated 4-1-1970 and refused to recognise him as its owner. The suit was resisted by the petitioner on the ground, inter alia, that he had purchased the suit house from the respondent for a sum of Rs,99.00 vide the sale-deed in question. The parties went to trial on as many as eleven issues. However, when the case came up on 17-6-1991 for recording the evidence of the respondent the petitioner took the stance that the respondent's suit may be decreed if he was prepared to state while taking oath on the Holy Qur'an that he had not sold the suit house to him. The offer made by him was accepted by the respondent on which the learned trial Court recorded separate statements of the parties on oath in regard to the offer and the acceptance. Thereafter, the respondent took the requisite oath on the Holy Qur'an and resultantly his suit was decreed by the learned trial Court. Feeling aggrieved, the petitioner went in appeal before the learned District Judge, D.I.Khan but without success as it was dismissed in limine and hence this revision petition.
3. Assailing the impugned judgments and decrees the learned counsel for the petitioner contended: Firstly, that Article 163 of the Qanun-e-Shahadat, 1984 envisaged two oaths one to be taken by the plaintiff in support of .His claim and the other by the defendant to deny the plaintiff's claim but the learned trial Court had not called upon the petitioner to deny the respondent's claim on oath after he had taken oath in support of his claim and had thus committed an illegality and material irregularity within the meanings of section 115 of the Code of Civil Procedure; secondly, that the suit was decided on the basis of oath taken by the plaintiff whereas an oath cannot be exacted from the plaintiff in view of the well-known saying of the Holy Prophet (p.b.u.h) that "Evidence is incumbent on the part of the applicant and an oath on that of the respondent"; and thirdly, that the learned trial Court had decided the case on oath mechanically without taking into consideration the caution reflected in Muhammad Ali v. Major Muhammad Aslam and others PLD 1990 SC 841 that Courts should refrain from permitting parties to enter into oath arrangements, which otherwise do not appear to have been made by them in some reasonable frame of mind or which appear to be the result of indecent haste, or which otherwise from apparent conduct of any of the parties appear to be such as would make a mockery of oath.
4. The learned counsel for the respondent on the contrary submitted that the oath taken by the respondent being the outcome of the offer made by the petitioner was inviolable and the procedure followed by the learned trial Court being in consonance with the provisions of the Oaths Act, 1873 was unexceptionable. Reliance was placed on Khan Sher v. Mst. Kabla and another PLD 1988 Peshawar 65.
5. The first contention raised by the learned counsel for the petitioner is misconceived as the oath taken by the respondent having emanated from the offer made by the petitioner of his own tree will and accord is governed by sections 8 to 11 of the Oaths Act, 1873 and not by Article 163 of Qanun-e- A Shahadat, 1984. The oath within the contemplation of sections 8 to 11 of the Oaths Act, 1873 stems from a voluntary agreement between the parties and when taken has a binding effect leaving the party making the offer with no choice to turn around and strike a discordant note as observed in Maulvi Muhammad Ramzan v. Muhammad Ismail 1982 SCMR 908, Firm Chiragh Hussain v. Khawaja Habib Joo PLD 1983 SC (AJ&K) 86, Khan Sher v. Mst.Kabla and another PLD 1988 Peshawar 86 and Muzaffer Ali and 2 others v. Ch.Asghar Ali 1991 CLC 2110 while the oath, envisaged by Article 163 of the I Qanun-e-Shahadat, 1984 is entailed by the initiative taken by the plaintiff who takes an oth in support of his claim first and then on his application the Court calls upon the defendant to deny the claim on oath and in any event the Court is not precluded from recording evidence of the parties and deciding the case on merits as observed in Rehmatullah v. Nasir Khan and 7 others 1991 MLD (Pesh.) 101, Nazir Ahmad v. District Judge, Laiah PLD 1986 Lahore 137 and Muhammad Shahbaz v. Ghulam Rasool 1987 CLC 1512. In technical terms the oath referred to in Article 163 of the Qanun-e-Shahadat, 1984 is a general oath and the oath provided by the Oaths Act, 1873 is a special oath and both are diametrically opposed to each other.
6. The second contention is no better than the first one because the oath taken by the respondent was not exacted from him but it was the result of a mutual agreement of the parties which is permissible under the Oaths Act, 1873. Needless to mention that the expression "exactiom" contains an element of demand as of right and the provisions of the Oaths Act, 1873 providing for decision of a case on oath taken by the plaintiff in the wake of an offer made by the defendant have not so far been struck down as repugnant to the Injunctions of Islam.
7. The last contention is also without substance. The authority PLD 1990 SC 841 cited by the learned counsel for the petitioner is an instructive authority which has not imposed an embargo on the decision of a case on oath in accordance with the provisions of sections 8 to 11 of the Oaths Act, 1873 but has only laid down guidelines for implementing the agreement between the parties in respect thereof which are worded thus: "The need for recording separate statements of the parties in respect of the offer and acceptance made in such cases deserves to be overemphasised, for such a procedure would give parties some short time to think over the matter and extricate themselves from hasty decisions, before appending their signatures to their statements."
The record of the case in hand clearly points out that the learned trial Court had not acted with lightning rapidity but had first recorded separate statements of the parties on oath in respect of the offer and acceptance and then taken the matter to its logical end. The petitioner had thus plenty of time to think over the matter and resile from the offer before appending signature to his statement but he stuck to his offer and as such he must thank himself alone for the consequences.
The procedure adopted by the learned trial Court indubitably conforms to the guidelines highlighted above, therefore, a case for interference is not made out.
8. For the foregoing reasons, this revision petition is dismissed. Parties to bear their own costs.
Revision .