1. WAHIDUDDIN AHMAD, J.-This appeal by special leave is directed against the order of a learned Single Judge of the High Court of West Pakistan, Lahore, in Civil Revision No. 436 of 1968 dated the 16 1969. By this order the learned Court dismissed the Revision Petition.
2. The appellant filed an application on the 26th June 1967, for ejectment against respondent No. 1, Honest Traders, and on the 24th July 1967, obtained an ejectment order from the Court of Malik Muhammad Iqbal, Rent Controller, Lahore, on the ground of default in payment of rent. Respondent No. 1 failed to vacate the premises by due date. The appellant, decree-holder, applied for execution and on the 31st July 197, through warrants of possession obtained the possession of the property in dispute.
3. On the 1st September 1967, Ch. Abdul Ghani Ghuman respondent No. 2, filed objections under Order XXI, rule 100, C. P. C. For restoration of possession alleging that he was real tenant and has been illegally dispossessed. Some evidence was recorded on these objections. On the 10th February 1968, Ch. Abdul Ghani Ghuman made an offer under Oaths Act X, 1873 to Malik Fazal Hussain, the husband and Mukhtar Khas of the appellant as under :- "Stated that if Malik Fazal Hussain Attorney of Decree---holder states on oath on Holy Quran after ablution in Mosque situated at Grain Market, Badami Bagh to the effect that his quarrel with the Bailiff and the Attorney of decree-holder did not take place in the shop and that it took place after the posses--sion was delivered and that he arrived at the scene after the possession was delivered then his application may be dismissed and that he will not take out any proceedings against any one; otherwise his application should be accepted."th This statement was accepted by Malik Fazal Hussain, Mukhtar Khas of the decree-holder on the following statement :- "Stated that Ch. Abdul Ghani Ghuman's offer is accepted. I am prepared to take the proposed oath."
4. Before the oath could be taken, Ch. Abdul Ghani Ghuman filed an application resiling from the agreement on the allegation that outside the Court Malik Fazal Hussain bragged that he had won the case and further definitely stated that "by taking oath on Quran, my legs will not break". He further stated that he did not mind taking oath for serving his own purpose and thereby will get rid of the whole dispute. Ch. Abdul Ghani Ghuman further stated that he was completely taking aback by this blasphemous attitude of Malik Fazal Hussain. In support of his allegation he filed an affidavit.
5. The respondent opposed this application and pleaded that the application was not maintainable under law and Ch. Abdul Ghani Ghuman could not resile from the statement. No counter-affidavit was filed in the beginning but towards the close of the argument an affidavit was filed denying the allegation made by Ch. Abdul Ghani Ghuman. The application was considered by the Civil Judge, Lahore, in objection No. 19/ 11 of 1967 dated the 2nd September 1967. The learned Civil Judge held that it was within the discretion of the Court to permit a party to resile from such an agreement and that it was a fit case for exercising his discretion in favour of Ch. Abdul Ghani Ghuman. The matter was then taken in revision before the High Court by the appellant. The High Court held that the finding of the fact that Malik Fazal Hussain, Mukhtar Khas of the appellant, bragged in the manner in which it was alleged cannot be disturbed in revision unless the assessment of the evidence is perverse or the finding is based on no evidence. It was further held that no fault can be found with the discretion which was exercised by the trial Court and the order cannot be set aside because it was not passed without jurisdic--petition. The appellant has challenged this order in this appeal before us.
6. Leave was granted in this case to consider the question whether the party which offers to abide by oath of the opposite party, can--not resile from the agreement if the latter is willing and ready to perform his part of the agreement.
7. The short question, therefore, for consideration in this appeal is whether the party which offers to abide by oath of the opposite --party can resile from the agreement.
8. PLD 1954 Lah. 290) and Muhammad Akbar and another v. Muhammad Aslam and another (PLD 1970 SC 241). The burden of all these decisions is that where a party offers to be bound by the statement of any of the opposite---party under section 9, Oaths Act, he cannot resile from such an offer after the other party has agreed to make such oath unless there is sufficient cause to the satisfaction of the Court for allowing the offered to resile. It has been further held in these cases that the discretion vested in the Court under section 10 has to be exercised according to the justice of the case. It cannot be exercised or refused to be exercised at the mere whim or caprice of a party or even of the Court. In this connection, it will be noticed that sections 9 to 12 of the Oaths Act deal with that part of the special oath by which a party is agreed to be bound. Section 9 is as follows :-- "Section 9. If any party to any judicial proceeding offers to be bound by any such oath or solemn affirmation as is mentioned in section 8, if such oath or affirmation is made by the other party to, or by any witness in, such proceeding, the Court may, if it thinks fit, ask such party or witness, or cause him to be asked, whether or not he will make the oath or affirmation: Provided that no party or witness shall be compelled to attend personally in Court solely for the purpose of answering such question.
9. Section 10 of the Oaths Act only deals with the question how such special oath is to be administered. It is as under: " Section 10. If such party or witness agrees to make such oath or affirmation, the Court may proceed to administer it, or, if it is of such a nature that it may be more conveniently made out of Court, the Court may issue a commission to any person to administer it, and authorize him to take the evidence of the person to be sworn or affirmed and return it to the Court."
10. Section 11 deals with the effect of such oath and reads as under :- "Section 11. The evidence so given shall, as against the person who offered to be bound as aforesaid, the conclusive proof of the matter stated."
11. Section 12 provides as under:- "Section 12. If the party or witness refuses to make the oath or solemn affirmation referred to in section 8, he shall not be compelled to make it, but the Court shall record,, as party of the proceedings, the nature of the oath or affirmation proposed, the facts that he was asked whether he would make it, and that he refused it, together with any reason which he may assign for his refusal."
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 :- "This 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 desertion 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 finding, 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. In this view of the matter the High Court was justified in not interfering in its revisional jurisdiction. We, therefore, find no force in this appeal. The appeal is dismissed with costs.