' MIAN SHAKIRULLAH JAN, J.---Mst. Fahmida and her husband Shakirullah both, petitioners in Writ Petition No, 1278of 1996 and 1277 of 1996 respectively, purchased land measuring 7 Marlas and 7-1/2 Marlas comprising Khasra No, 288 Khata No,236/397 situated in Deh Nauthia, Tehsil and District, Peshawar through sale Mutation Nos.5043 and 5042 attested on 7-4-1994, which sale transactions were pre-empted by Hidayatullah and Inayatullah sons of Fazal Mehmood, residents of Nau Deh Payan, Peshawar City, by filing pre-emption Suits No,390/1 and 391/1 respectively on the grounds of co-sharership, contiguity and participation in amenities as well as appendages. The vendee-- petitioners resisted the suits by filing their written statement and issues in the case were framed on 22-11-1994. On 30-7-1995 the statement of Patwari Halqa was recorded, whereafter controversy between the parties, started from the proceedings dated 18-1-1996 when the plaintiffs brought an application on 21-1-1996 requesting for decision of the suit on the basis of Oath as according to them on 18-1-1996 when the plaintiff was to record his statement, the defendant Shakirullah made an offer to plaintiff No,1 that if he takes oath about the fact that the defendants had never sent any Jirgas to the plaintiff before the purchase of the property in dispute, then the suits of the plaintiffs should be liable to decretal against them. It was also alleged in the application that plaintiff No,1 had accepted the requisite offer and had shown his willingness to take the Oath but meanwhile due to exchange of some hot words {{URDU TEXT}} ( (.:ssk; ) between the parties the case was adjourned to 21-1-1996. In reply, the defendants rebutted the contention of the plaintiffs by stating that on 18-1-1996 their counsel was not present in the Court and the plaintiff No,1 wanted to record his statement on which the defendant objected due to his counsel absence and asked the plaintiff to disclose the real facts, whereafter some altercation took place between them and the date was adjourned to 21-1-1996.
2. As the order-sheet dated 18-1-1996 of the trial Court never disclosed anything towards the alleged offer and acceptance of the Oath, therefore, keeping in view the application submitted by the plaintiffs on 21-1-1996 for the purpose of taking judicial notice of the events, the learned trial Judge passed a detailed order on 24-3-1996 whereby he showed inability to take judicial notice of the events due to the failure of the plaintiffs to file application on the same date i,e, 18-1-1996 and later on making an attempt to substantiate the plea taken in the application by submitting rejoinder on 7-3-1996. Not satisfied by the said decision, the counsel for the plaintiffs then requested the Court on 26-3-1998 to deliver a specific verdict on the point of offer and acceptance of the oath and this time too the learned trial Court turned down the request of the plaintiffs' in the following words:- "After hearing the learned counsel for the parties and perusing the record; especially (para.3) of application of plaintiffs; wherein mentioned the factum of willingness on the part of plaintiff followed by stated 'Tulkhi' in between parties; regarding offer of Oath makes the edifice of said offer in-effective. Even otherwise the Court cannot force a party to the suit for taking Oaths. However, the best course would be adjudication of controversy on merits; when element of consensus is lacking or intention following up as others. The said order was challenged in revision petition before the learned Additional District Judge, Peshawar who vide his orders dated 6-11-1996 accepted the revision petition, struck down the impugned order and remanded the matter to the trial Court to decide it on Special Oath strictly in accordance with law. Feeling aggrieved, the vendee-petitioners have filed the instant writ petitions against the orders dated 6-11-1996 of the learned Additional District Judge, Peshawar.
3. As both the petitions are similar in nature and calls in question the same orders dated 6-11-1996 of the learned Additional District'. Judge, Peshawar, therefore, both the writ petitions are being disposed of by this single judgment. In Writ Petition No, 1277 of 1996.
We have heard the learned counsel for the parties and have also perused the record of the case.
5. According to the application of the respondent/defendant placed on the record of the trial Court, though Shakirullah (defendant in Suit No,391/1 as well as attorney for Mst. Fahmida in Suit No,390/1) had made an offer to plaintiff No,1 for taking Oath (factum of offer denied by the other side), yet the said offer and acceptance was never acted upon due to the alleged ' talkhi' which had arisen between the parties on 18-1-1996. Even it did not influence the mind of the learned trial Judge, who did not record anything about it in the order sheet dated 18-1-1996, which is hereby reproduced for the sake of convenience:- "Counsel for the plaintiff and defendant present; while the defendent counsel is absent. The plaintiff evidence is available, but statement could not be recorded. To come up for plaintiff evidence on 21-1-1996."
Thus, no proceedings took place on 18-1-1996 either with regard to the alleged offer and acceptance or on merits of the case. No doubt, decision of a case on oath is one of the established modes for disposal of cases, but at the same time the Courts are bound to handle such cases with great care for involving in it the sensitiveness and to avoid haste and rationalising emotional outbursts. It is also the duty of the Court to scrutinize the relevant record and to record the necessary statements. In such a situation, when no statement had yet been recorded on Oath and the alleged offer and acceptance of the Oath was obviously the result of heated discussion between the plaintiff and the defendant in the Court at a stage when the plaintiff was going to record his examination-inchief, the approach of the learned trial Court to the facts and circumstances of the case was quite correct and the leanred District Judge has erred in law while accepting the revision petition. The reference of the learned revisional Court to the authority reported in MLD 1991 page 762 is not proper to the facts and circumstances of this case wherein the defendant has made statement on oath and similar is the position with regard to other authorities, referred to. In this case the alleged offer and acceptance both were oral and no statement to this effect has been recorded. As against this, the authority of the August Supreme Court of Pakistan in a case reported as "Muhammad Ali v. Major Muhammad Aslam and others (PLD 1990 Supreme Court 841) (followed by this Court in the judgment reported in PLD 1993 Peshawar 72) provides ample support to the case of the petitioners, wherein their lordships have observed as under:-- "Where it is not possible to lay down guiding principles as to what fact or circumstances in a given case would induce a Judge to permit a party to resile from either the offer or the acceptance, it is necessary for the Court to guard itself and the parties against snap decisions taken by the parties in this connection. More often than not during examination of a party or a witness, or during a heated discussion or argument, a party in the excitement of the moment may be led to make a snap decision in this respect. He may in the heat of passion make such an offer, or accept such a one, which otherwise in a state of cool deliberation he would not do. The Court should be careful to see that such offers and acceptances are not recorded with the same snap speed with which they are made, for such offers and acceptances would not be founded in piety and grace and would not be made at the highest level of truth. For no sooner a person makes an offer to another to make a statement on the Holy Qur'an or his Holy Book, whichever it may be, with regard to any matter or fact, the effect of which will be to bind him in a particular manner, for good or for worse, he does so on the assumption that the person who will accept it is conscious of his trust and whilst making the statement on the Holy Book shall place himself figuratively before his maker and his Holy Prophet and state the truth, on pain of divine wrath. The Court should, therefore, be somewhat circumspect in this matter and refrain from permitting parties to enter into such agreements, 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 the apparent conduct of any of the parties, appear to be such as would make a mockery of the Oath.
The need for recording separate statements of the parties in respect of the offer and acceptance made in such cases deserves to be over emphasised, 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."
Applying these principles to the facts of this case, the order of the learned trial Judge directing the parties to produce evidence in the case for decision of merits without anything on record about the alleged offer and acceptance was, therefore, not suffering from any illegality when apparently the alleged offer and acceptance was followed by heated discussion {{URDU TEXT}}( Cot ) between the parties and in which eventuality the state of cool mindedness resultantly lacks. On the other hand, the learned revisional Court while striking down the orders of the trial Court has not based his findings on any sound material available on record because it is not between the parties to take oath but it is for the Court to administer oath to the parties and record statements in this regard, and the record of this case clearly indicates that no such procedure was adopted and it was only on the application do the plaintiff/respondent that the defendant/petitioner had made an offer to him for taking Oath, which plea of the plaintiff/respondent was then properly dealt-with by the learned trial Court in the detailed orders dated 24-3-1996 and 26-3-1996. The impugned order of the learned Additional District Judge is, therefore, violative of the settled principles of law as the alleged offer was neither accepted by the respondent on the same day nor in any way acted upon.
6. The learned counsel for the respondents vehemently argued that despite the fact that the petitioners had filed writ petitions in this Court, no stay order was granted to the petitioners and after the remand of the case to the trial Court, the Oath was taken by the plaintiff/respondents and the learned trial Court vide order dated 28-11-1996 decided the case in favour of the plaintiff- respondent, which judgment/decree has been appealed from, and, therefore, the present writ petitions have become infructuous. This objection of the learned counsel for the respondents is not sustainable. This Court on 8-12-1996 while admitting the writ petitions to final hearing had ordered status quo to the extent of dispossession of the petitioners from the suit land. We have perused the record pertaining to the proceedings after remand and find it again that no proper procedure was adopted by the trial Court by recording statement of either party to the suits and only made a reference to this effect in his order dated 8-12-1996 as under:-- "I, therefore, now ask the plaintiff to take Special Oath on Holy Qur'an to the above effect: {{URDU TEXT}} ' From the above, it is evident that the learned trial Court keeping in view the directions of the revisional Court has decided the matter in a haste manner. Moreover, the objection is also not maintainable, firstly; because the trial Court conducted the subsequent proceedings in consequence of the remand order impugned herein and if the same is found as not maintainable, the subsequent proceedings taken in pursuance of such order also fall to the ground and become void and ineffective. The record indicates that the petitioners have not participated in the subsequent proceedings after remand and the case was decided on the unilateral act of the respondent by taking oath and, thus, .Even estoppel cannot be attracted against them because even to the application which the plaintiff/respondents had filed before the trial Court for decision of the case on Oath, the reply of the petitioners was in the negative. Secondly, if the impugned order of remand is not corrected, that cannot be challenged in appeal filed against the judgment and decree of trial Court passed in pursuance of the remand order as in both the eventualities the Court (District Judge/Additional District Judge) remains the same which passed the impugned orders and before which the appeal is now pending. The objection of the learned counsel for the respondents that the affidavits to the writ petitions are vague as the paras. Have not been specified with regard to deponent belief and knowledge is also not sustainable, as the averments in the writ petitions are neither oral nor based on the documents which are in the exclusive possession of the petitioner, but a judicial order has been challenged and everything is available on the judicial file of the Court. Moreover, the affidavits have been sworn in by the petitioners and the defect as pointed out by the learned counsel for the respondents, in view of the availability of the judicial record in the case, is not of the nature to non-suit the petitioners solely on this ground.
Similarly, the objection of the learned counsel for the respondents that the prayer of the petitioners ought not to have been entertained in the writ petitions is also not sustainable, for, this Court while exercising its writ jurisdiction can grant relief to the petitioners when the c order impugned is found to have been passed without lawful authority. In this case the order which has been impugned before us is that of the revisional Court whereby while exercising the revisional jurisdiction the Court has set aside the order of the trial Court wherein the request/application of the defendant for taking an oath, as allegedly offered to them by the plaintiff, was turned down. Thus, the two Courts are at variance and the question would be that whether the revisional Court was justified in upsetting of the order of the trial Court on the grounds mentioned in the impugned order. The perusal of the impugned order reveals that the revisional Court has proceeded on the assumption that the offer and acceptance for settlement of the dispute on oath has been proved and also without taking into consideration the criteria laid down in the judgment of the august Supreme Court of Pakistan reported in PLD .1990 Supreme Court 841, the relevant portion of which has already been reproduced hereinabove. The record as well as the various order sheets/orders passed qua the issue of offer and acceptance with regard to oath reveal that the offer and acceptance was disputed one and the Court has not believed that any conscious offer has been made and with the response of acceptance at that moment. The date on which on this episode took place was 18-1-1996 and which order sheet of the said date does not reveal any such happening but rather the case was adjourned for recording of the evidence of the plaintiff. It was on the next date of hearing when the application on behalf of defendants showing his readiness for the acceptance of the offer was made and also prayed for the decision of the cases on the basis of oath, but the said application was contested by the petitioner and refuted all the allegations of the respondent with regard to the offer of oath. It was on 7-3-1996 when the defendant submitted an application in the trial Court for taking judicial notice of all what has happened on 18-1-1996 which application was dealt-with by the trial Court on 24-3-1996 and after elaborating the factual controversy with regard to the offer of oath and taking of the judicial notice of the events on 18-1- 1996 observed as under:- "After perusing the record, I have reached the conclusion that; inability of the plaintiffs from filing application on 18-1-1996 and subsequently filing application on 21-1-1996; followed by rejoinder dated 7-3-1996; herein, attempt was made for substantiating earlier position is not justified, to take judicial notice of events; by adding or altering order dated 18-1-1996. The plaintiffs ought to have been prudent on 18-1-1996. Hence, judicial notice is not necessitated at this stage. The order dated 18-1-1996 passed by this Court is self-contained and shall remain intact."
(Underlining is ours).
' The order dated 18-1-1996 has already been reproduced in paragraph No,2 of this judgment. The application of the defendant for decision of the case on the basis of an offer of oath was decided by an order passed on 29-5-1996 whereby the learned trial Court seems to have not accepted the plea of the plaintiff with regard to the making of offer of oath by the plaintiff wherein a reference has been made to para. 3 of the application by not mentioning therein that offer was made, which part of order has already been reproduced in para. No,2, and which observations indicate that the learned trial Court was of the view that if the offer was taken to have been made, even the circumstances (within the parameter of the judgment of the Supreme Court, referred to above) do not allow to act upon the offer of oath and its acceptance by the other party and to settle the dispute. This order of the trial Court is not in deviation of the law laid down by the superior Courts but rather in consonance with the same and in this respect reference may be made to a case reported as "Muhammad Akbar Khan and others v. Muhammad Aslam and another (PLD 1970 Supreme Court 241) whereby it was held that:- " and the trial Court could in its direction decline to hold the appellants by it. The exercise of discretion will depend on the facts and circumstances of each case."
' Similar view was also expressed in the judgment reported as "Mst. Asifa Sultana v. Honest Traders, Lahore and another (PLD 1970 Supreme Court 331) whereby it was observed that the offer of oath and its acceptance is in the nature of an agreement and the question that the person who made the offer can resile from it depends upon the facts and circumstances of each case. Thus, the discretions exercised by the trial Court in the present case is in line with the judgment of the Supreme Court reported in PLD 1990 Supreme Court 841. There was no occasion for the revisional Court to interfere with the judgment and order of the trial Court as the same do not seem to suffer from army of the infirmities i,e, non-exercise of jurisdiction vested, exercise of jurisdiction not vested or any illegality or irregularity, rather the judgment of the revisional Court suffers from jurisdictional error within the meaning of section 115, C.P.C. And justifying interference by this Court in its Constitutional jurisdiction by holding the impugned order as unlawful and illegal.
' Resultantly, this writ petition is accepted, the order dated 6-11-1996 of the learned Additional District Judge, Peshawar is declared as unlawful and illegal. We also hold that if any order passed, proceedings taken in pursuance of the impugned order of the revisional Court, the same are also unlawful, illegal and ineffective. The case is, therefore, remanded back to the trial Court for deciding the suits of the plaintiffs on merits after providing opportunity to both the parties to produce their respective evidence. No order as to costs. The office is directed to send the case file back to the learned trial Court immediately. The parties are directed to appear before the trial Court on 15-6-1998.