' SH. IJAZ NISAR. J.-- -This appeal by leave of the Court is directed against the judgment, dated 21- 11-1993, passed by a learned Single Judge of the Sindh High Court, Karachi, whereby he set aside the concurrent findings of the Courts below and dismissed the suit filed by Bashir Ahmed appellant.
2. The facts, in brief, are that the appellant had filed a suit for specific performance of agreement, which was reduced into writing in the form of declaration and undertaking signed by Muhammad Luqman respondent, whereby the latter had agreed to sell a double-storeyed building bearing No,J-15, 'J' Market, Karachi, to the appellant in the sum of Rs,22,000, out of which he had received Rs,5,000 by way of advance. The transaction was to be completed within three months when the balance amount was to be paid and possession delivered to the appellant. According to the appellant, he was ready and willing to perform his part of the agreement but the respondent failed to transfer the property in dispute to him.
' The respondent contested the suit and pleaded that the agreement had been terminated and the advance amount received from the appellant returned to him.
3 On the pleadings of the parties the following issues were framed:--
(1) Whether the plaintiff received the advance amount back and terminated the contract of sale transaction in respect of the disputed house?
(2) Whether the plaintiff is entitled to the relief claimed?
(3) What should the decree be?
' After recording evidence of the parties, the learned Civil Court decided both the issues in favour of the appellant and decreed the suit in his favour vide judgment dated 29-3-1987.
4. Feeling aggrieved, Muhammad Luqman respondent filed an appeal in the District Court against the said judgment and decree, which was dismissed by the II-Additional District Judge, Karachi East, vide judgment and decree dated 26-11-1988. He then challenged the aforesaid judgment and decree by filing a Revision Application in the High Court, which was allowed on 21-11-1993 and the judgments and decrees of the Courts below were set aside.
Thereafter, Bashir Ahmad appellant approached this Court and the leave was granted to him to examine the question about the interpretation of Article 163 of Qanun-e-Sahadat Order and sections 8 to 12 of the Oaths Act.
5. The main reason which prevailed with the learned High Court in accepting the Revision Application of the respondent was that the offer made by him to take a special Oath that the contractual obligation between the parties had come to an end by his returning the advance amount of Rs,5,000 to the appellant was not accepted by him, which had weakened his claim in the suit. The relevant discussion to this effect is re-produced below:- "Now in the instant case, it was the defendant who in his written statement offered to take the special oath but none is shown to have been entertained, even though the offer was repeated during the course of defendant's examination-in-chief. Likewise, the defendant challenged the plaintiff to make the requisite oath while the plaintiff was under cross-examination but that the plaintiff declined. Matters did not end there and the defendant made an application under Article 163 of Qanun-e-Shandat at a later stage, seeking that the plaintiff be required to take special oath in terms stated. The application itself was dismissed. If the defendant had made the offer, manifestly envisaged in section 8 of the Oaths Act, the Court could have declined it only for good and sound reason, since in no other way its discretion could be exercised. That was not done, correspondingly, when the defendant challenged the plaintiff to make an oath, contradicting the defendant's averment, as regards the return of earnest money, the Court could have refused the move but again for reasons to be recorded. It neither accepted nor rejected the demand though the plaintiff himself declined. Likewise, if the plaintiff had refused to accede to the challenge, in terms of section 12 of the Oaths Act, requisite endorsement on the record should have been made but none was made. Defendant's application under Article 163 itself was rejected, again on a technical ground namely, that it did not lie. To the extent of the claim of refund of earnest money, the defendant filed the character of a I laintiff and the application under Article 163 of the Qanun- e-Sahadat may have been quite competent. Alternatively, the application could have been treated as one under section 9 of the Oaths Act and disposed of accordingly. Such too did not come to transpire.
While it is settled law that a refusal of a party to take oath, in contemplation of section 9 of the Oaths Act, cannot result in itself defeating the claim or defence of that party such is an important piece of material under section 12 of the Act and can always be considered in conjunction with other facts of the case to arrive at a proper finding. This we can do even at this stage. The refusal, together with other material on the record, has definitely weakened the plaintiff's claim in the suit."
6. It is contended that the transaction in question having been admitted by the parties for valid consideration being in the nature of an agreement/undertaking, suit for specific performance of contract was maintainable and had been rightly decreed by the trial Court on the weight of evidence led by the parties and that there being no material irregularity or jurisdictional defect, the High Court in the exercise of its revisional jurisdiction could not have disturbed the finding of fact arrived at by the Courts below. It is further maintained that the Oath under Qanun-e-Sahadat Order and the one under the Oaths Act, 1873, were diametrically opposed to each other, and no inference could be drawn by the Court against the plaintiff on his refusal to take oath under Article 163 of Qanun-e-Sahadat Order, 1984.
7. We have heard the learned counsel for the parties at length on the effect of refusal of the appellant to accept the offer of the respondent to deny on oath having received back Rs,5,000 paid to him as advance at the time of execution of the sale agreement. Article 163 of Qanun-e- Shahadat reads as follows:-- "Acceptance or denial of claim on oath.-(1) When the plaintiff takes oath in support of his claim, the Court shall, on the application of the plaintiff, call upon the defendant to deny the claim on oath.
(2) The Court may pass such orders as to costs and other matters as it may deem fit.
(3) Nothing in this Article applies to laws relating to the Enforcement of Hudood or other criminal cases."
8. In the instant case, it is an admitted fact that the plaintiff-appellant had never made any offer to take oath to deny the claim of the respondent, nor did the Court require him to take any such oath.
On the other hand, it was offered by the respondent that the appellant should deny on oath having received back the earnest money.
9. The learned High Court had non-suited the appellant mainly for his failure to accept the offer of the respondent to deny on oath the termination of the contract. It failed to take into account that the oath within the contemplation of sections 8 to 11 of the Oaths Act, 1873, stems from a voluntary agreement between the parties, while the oath envisaged by Article 163 of the Qanun-eSahadat Order, 1984, is upon the initiative taken by the plaintiff without any specific provision providing the penal consequences of the defendant's nonacceptance to deny the claim on oath. As the necessary conditions of the oaths as provided by Article 163 of Qanun-e-Sahadat and the Oaths Act were missing, no adverse inference could be drawn against the appellant.
10. The Courts below had after proper assessment of the evidence led by the parties come to the conclusion that the agreement of sale had been validly executed by the parties in respect of the property in dispute and that the respondent had failed to perform his obligations towards the completion of the transaction and hence decreed the suit in favour of the appellant. The execution of the agreement and the receipt of the earnest money was admitted by the respondent but he failed to lead any convincing evidence about the return of the earnest money and termination of the agreement. In this view of the matter, the Courts below had rightly decreed the appellant's suit.
11. For the reasons discussed above, we allow the appeal, set aside the judgment of the learned High Court and restore the judgments and decrees of the Courts below leaving the parties to bear their own costs.