Master Abdul Latif respondent herein brought a suit on 16-7-1995 against Abdul Rehman's appellant for the recovery of sum of Rs.2,75,000 alleging in his plaint that Abdul Rehman's claiming himself to be the general attorney of one Haider Ali resident of Ranchore Line, Karachi, who was shown to be the owner of land measuring 138 Kanals and 16 Marlas in Village Vani Par Ahmed, Hafizabad Tehsil as per the record of rights for the year 1984-85 (copy mark "B"), prevailed upon him to purchase this land, holding out that a sum of Rs.60,000 had already been paid by him to Haider Ali as earnest money but he himself was unable to arrange for the remaining amount and that he would get the sale-deed registered in his name. The plaintiff as per his averment was then serving in the Education Department. He was taken in and, therefore, sought a premature retirement and from whatever amount he received he made the payment of a sum of Rs.2,75,000 to the defendant Abdul Rehman's but the latter failed to get the land transferred in his name or to pay back the amount of consideration in spite of repeated demands made by the plaintiff which obliged him to come to the Civil Court.
2. This suit was resisted by the defendant and a comparison of the pleadings of the parties gave rise to the following issues:--
(1) Whether the plaintiff is entitled to claim and recover the suit amount as alleged in the plaint?
O.P.P.
(2) Whether the suit is false, frivolous and mala fide and the defendant is entitled to special cost?
O.P.D.
(3) Relief.
3. Both the parties led evidence on these issues. During the pendency of these proceedings Abdul Rehman's submitted an application for grant of permission to produce secondary evidence in respect of an agreement to sell claimed to have been arrived at between Abdul Latif plaintiff and Haider Ali, aforesaid owner of the land. This application was, however, dismissed by the learned Civil Judge, then seized of the matter, on 5-10-1996, after observing that it did not find mention/reference in the written statement as well as cross--examination of the P. Ws. By the defendant and prima facie it appeared to be .An attempt to delay the final disposal of the case. He took note of the fact that the defendant had been affordedo as many as 14 opportunities including final opportunities with and without costs. Feeling aggrieved the defendant Abdul Rehman's filed a revision petition but without success. The same was dismissed by the High Court in limine on 14-5- 1997.
4. It appears that still dissatisfied, the defendant made another attempt to prolong the proceedings by making three different applications, one under Order 1, Rule 10, C.P. Code, the second under Order XIV, Rule 5, C.P. Code and the third for summoning the persons mentioned in the application as Court --witnesses. All these applications were again resisted by the plaintiff but taking into consideration the conduct of the defendant that he was afforded as many as 14 opportunities to produce his evidence and finally he had confined his evidence to his own solitary statement, the learned Civil Judge put of their disposal and called upon the parties to address final arguments. The case was finally fixed for arguments and orders when on 3-I1-1997 the defendant proposed an oath to Abdul Latif plaintiff on the Holy Qur'an. The latter accepted this offer and took the proposed oath on the Holy Qur'an, with regard to the payment of a sum of Rs.2,75,000 to the defendant for payment as the sale consideration of the land belonging to Haider Ali but he neither got the land transferred nor paid back the said amount. Abdul Rehman's not only put his signatures under this statement but also put his thumb-impression and got his I.D. Card number recorded i.e. 286-43-094772. On the basis of these statements and the fact that the plaintiff had taken the oath as proposed the learned Civil Judge decreed the plaintiff's suit but left the parties to bear their own costs on 3-11-1997.
5. Abdul Rehman's has preferred this regular first appeal against the said order and decree, dated 3-11-1997 mainly maintained in the grounds that the learned Civil Judge adopted a course against the provisions of law because neither party applied to the Court under the Qanun-e-Shahadat Ordinance, 1984 for deciding the case on special oath and thereby violated the provisions of Article 163 of the said Ordinance and, as such, the order and decree is a nullity and cannot be sustained.
6. While addressing his preliminary arguments the learned counsel for the appellant has again referred to Article 163 of Qanun-e-Shahadat Ordinance, 1984 which runs as under:-- "When the plaintiff takes oath in support of his claim, the Court shall, on the application for the plaintiff, call upon the defendant to deny the claim on oath.
(2) The Court may pass such order as to costs and other matters as it may deem fit.
(3) --------------------------------------
7. We are, however, of the view that this argument of the learned counsel for the appellant is devoid of any force. He offer by a party as to being bound by a statement on oath of his opponent is in the nature of a binding agreement and the technicalities should not be allowed to come in the way of justice. The assertion of the learned counsel for the appellant that there should have been an application by the defendant or the learned Civil Judge should have adhered to the provisions of law as contained in Article 163 of the Qanun-e-Shahadat Ordinance, 1984 is totally misconceived. It has been repeatedly held by the superior Courts that the oath referred to in Article 163 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. The oath taken by the plaintiff was in the same terms as proposed by the defendant and the exact wording has also been recorded by the learned Civil Judge and the learned counsel for the appellant has failed to convince us that the learned Civil Judge could not have proceeded therewith in the absence of an application. There is no such requirement of law. In Nathey Khan v. Muhammad Usman PLD 1988 Lah. 280 the learned Trial Court did not record formal statements of the parties to the effect that respondent had actually made the proposed oath but specifically stated in the judgment that the oath had in fact been administered. It was held that technicalities should not be allowed to come in the way of justice and the petitioner could not be permitted to avoid legal consequences of the oath.
PLD 1993 Pesh. 72 the record of the case clearly pointed out that the Trial Court had not acted with lightening 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 and in the circumstances the petitioner had plenty of time to think over the matter and resile from the offer before appending his signature to his statement and must thank himself alone for the consequences. It was further held that the procedure adopted by the Trial Court indubitably conforms to the guidelines highlighted in the reported judgments referred to therein.
8. We need not burden this judgment with unnecessary details. Suffice it to say that the defendant/appellant has not been able to make out a case for admitting the appeal to regular hearing. The appeal is, therefore, dismissed in limine.