' This petition under section 115, C.P.C. Seeks revision of the order of learned District Judge, Jhang dated 13-9-1995 whereby the order of the learned Civil Judge passed on 14-1-1992 on the objection petition filed by respondents in an application for execution was set aside and the case was remanded.
2. The facts leading to the present petition are that respondent No, I had filed a suit for specific performance of an agreement for sale which was decreed by the Trial Court on 4-11-1984 against Abdul Khaliq, the defendant therein. During the course of execution of that decree certain objections were raised by the respondents which were contested by the petitioners. The Executing Court after framing two issues recorded the evidence of the parties and repelled those objections finding no merit in the same on 14-1-1992.
3. The order of the Executing Court was challenged by the respondent by filing an appeal which came up for hearing before the learned District Judge who proceeded to accept the same on 13- 9-1995 on the sole ground that the statements of some of the witnesses especially D.W.6, Naseer- ud-Din was recorded on solemn affirmation and not on oath and as such could not have been relied upon. The case was remanded to the Executing Court for decision afresh after recording statements of the witnesses on oath.
4. In support of this petition it has been argued by the learned counsel for the petitioners that statements of the witnesses on solemn affirmation were recorded by the Trial Court without any objection on the part of the respondent and he could not have subsequently allowed to agitate this question. It has further been argued that, in any event, the respondent has failed to show that any prejudice has been caused to him on account of omission of the Court to record the statements of the witnesses after administering oath to them rather than on solemn affirmation and as such the remand of the case on this ground was not justified.
5. The respondent's learned counsel has, however, supported the judgment of the learned District Judge by arguing that the procedure prescribed by section 6 of the Oaths Act, 1873 as amended by the Federal Laws (Revision and Declaration) Ordinance, 1981 which provides that if the witness is a Muslim he shall make an oath while giving deposition, was mandatory and the failure to abide by it vitiates the proceedings.
6. It is not disputed by the learned counsel for the petitioner and even otherwise it is clear that after the amendment of the Oaths Act, 1873 by the Federal Laws (Revision and Declaration) Ordinance, 1981, statement of a Muslim witness should be recorded after administering oath prescribed by the High Court under section 7 of the Oaths Act, 1873. There may not be any cavil with the proposition advanced by the learned counsel for the respondent that in view of the language of section 6 of the Act, the requirement to administer oath is mandatory. It has been so held by the Peshawar High Court in the case of Muhammad Tahir v. State (PLD 1984 Peshawar 56). It is also true that normally violation of mandatory provision of law renders the proceedings taken thereunder as invalid.
7. The position, however, in the present case is different in view of section 13 of the Oaths Act, 1873 which clearly provides that omission to take oath or affirmation or any irregularity in administering oath would not invalidate the proceedings. This provision was considered by the Peshawar High Court in Muhammad Tahir's case (supra) and it was observed that if the omission to administer oath was not deliberate but was accidental or negligent, proceedings would stand validated by section 13 of the Act. In Khadim v. Judge Family Court, Samundari, District Faisalabad and another (1991 MLD 1250), Irshad Hassan Khan, J. (as his lordship then was) while relying upon the pronouncement of the Federal Shariat Court in Zeb-ul-Haram v. The State (PLD 1991 FSC 1) observed that non-compliance of sections 6 and 7 of the Oaths Act, 1873 was an irregularity and does not ipso facto render the proceedings to be void in the absence of any prejudice. Same view was taken by this Court in Muhammad Nawaz v. The State (NLR 1991 Crl. 282).
8. According to section 99, C.P.C. Any defect or irregularity in the procedure does not vitiate the decree passed by the Trial Court and cannot be a ground for remand of the proceedings unless some prejudice has been shown to have occurred on account of the failure of the Court to adhere to the prescribed procedure. It cannot be doubted that recording of evidence is purely a matter of procedure. In this view of the matter also in the absence of any finding by the District Judge that any prejudice has been caused on account of the failure of the, Trial Court to adhere to the provisions of sections 6 and 7 of the Oaths Act, the decree impugned before him could not have been set aside nor could the case be remanded.
9. It is also to be noticed that at the time when the statements of the witnesses were recorded on solemn affirmation, no objection whatsoever was raised by the respondents and this plea for the first time appears to have been taken before the Trial Court. In Zeb-ul-Haram's case (supra), it was ruled that where an objection as to the non-administration of oath was not taken at the trial stage it could not be raised subsequently. Khadim's case (supra) also supports this view.
10. So far as the cases cited by the learned counsel for the respondent are concerned, the judgment in Muhammad Tahir v. The State (PLD 1984 Peshawar 56) goes against the proposition canvassed by the learned counsel that the failure to abide by the procedure prescribed by section 6 of the Oaths Act, 1873 vitiates the proceedings. The Peshawar High Court after having held the provisions to be mandatory observed that if the omission to administer oath is not deliberate but was unintentional and was a result of negligence, the proceedings taken would be valid and binding. In the present case also, the learned counsel for the respondent has not canvassed that there was no deliberate failure to adhere to section 6 of the Oaths Act, 1873. On the other hand, what appears is that the Court as also both the parties were oblivious of the change in law. The other case relied upon by the learned counsel is again of no help to him as the effect of section 13 of the Oaths Act, 1873 or section 99, C.P.C. Was not examined.
In view of what has been stated above, this petition is allowed, the impugned judgment is set aside and the case is remanded to the learned District I Judge, Jhang, for decision of the appeal afresh filed by the petitioners, in accordance with law.
' No order as to costs.