BASHARAT AHMAD SHAIKH, J. Brief facts of the case are that the appellant filed a declaratory suit claiming the ownership of house built on plot No. 146 in Sector B-3 Mirpur city. Another suit was filed by respondent Muhammad Najeeb for possession of the same house and in addition to that he lodged a claim of Rs. 5,65,000/- as compensation for use of the house as well as damages for mental torture. Both these suits were disposed of by the learned District Judge by a single judgment on 30th November, 1995. The declaratory suit filed by Abdul Hameed was dismissed while the respondent's suit was decreed so for as it related to possession of the house. Rest of the reliefs, which related to compensation for use of the house and mental torture, were refused. Both the parties tiled appeals before the High Court.
2. When the case came up for hearing before the High Court appellant Abdul Hameed made an application that disputed matter be resolved on special oath. Initially he made oral prayer which was accompanied by a written application. He stated that if his brother respondent Muhammad Najeeb stated on oath that he had no transferred the house in dispute to him (Abdul Hameed) through an affidavit, that he had not received Rs. 28,000/- as cost of the plot and that he had not written a letter to the Municipal Corporation in this connection the appeals may be decided in favour of Muhammad Najeeb. Muhammad Najeeb accepted the offer and he made a statement under special oath. In light of the oath the High Court dismissed the appeal filed by Abdul Hameed and decreed the suit filed by Muhammad Najeeb. Abdul Hameed has filed this appeal with leave of the Court to challenge the judgment of the High Court.
3. Ch. Muhammad Sharif Tariq, the learned counsel for the appellant, submitted that the High Court did not record the statement of Muhammad Najeeb on special oath which was a mandatory requirement. He submitted that the High Court acted illegally by acting on a statement which was never recorded. It was alternatively contended that his offer only related to contents of the oath which pertained only to ownership of the house but the High Court has decreed the suit filed by Muhammad Najeeb in toto which means that the appellant has to pay damages amounting to Rs.
5,65,000/-. It was vehemently contended by the learned counsel for the appellant that the High Court fell in error in decreeing the suit so far as it related to damages.
4. The learned counsel for the respondents, Raja Muhammad Siddique, submitted that recording of statement on special oath was not necessary and it was sufficient that the statement was made by Muhammad Najeeb before the High Court. He submitted that the judgment of the High Court is proof of the tact that Muhammad Najeeb did make a statement on special oath. The learned counsel could not advance any cogent argument to counter the other contention raised by Ch. Muhammad Sharif Tariq that the High Court travelled beyond the contents of the oath.
5. It appears from the judgment of the High Court that Muhammad Najeeb did make a statement but it was not recorded. In our view this is not sufficient compliance of law. The provision about making an offer to the other party to depose on special oath is contained in the Oaths Act, 1873.
Section 8 lays that if any party offers to give evidence on oath the Court may administer such oath.
Section 9 inter alia lays down that if any party offers to be bound by any such oath the Court will ask the other party whether he will make such oath or not. Section 10 provides that if the party agrees to such oath the Court may proceed to administer it. The result of this exercise is provided in section 11 which runs as follows:- "11. The evidence so given shall, as against the person who offered to be bound as aforesaid, be conclusive proof of the matter stated."
6. It will be seen that in sections 8 and 11 there is mention of "evidence" which shows that special oath has to be administered while recording evidence. However in the present case no evidence was being recorded when the offer to be bound by statement on oath was made but the offer and its acceptance amount to a contract between the parties even if evidence was not being recorded.
However contents of sections 8 to 11 show that statement under discussion should have been recorded in the same way in which evidence is recorded otherwise sections 8 and 11 will have no application. In our view without recording of evidence an oral statement did not lawfully bind the appellant. In this view of the matter the judgment of the High Court is liable to be set aside.
Therefore the case has to be remanded so that the High Court may properly record the statement of Muhammad Najeeb and. Then decide the matter.
7. The second contention of Ch. Muhammad Sharif Tariq is also correct. The statement on oath for Muhammad Najeeb did not relate to compensation for use of the premises and for mantel torture.
The oath only related' to the question of ownership and it bound Abdul Hameed to that extent.
Therefore the High Court will decide the dispute only about ownership on the basis of the statement in special oath.
The appeal is therefore accepted and the judgment and decree passed by the High Court are vacated. The case is remanded to the High Court for fresh decision in light of this judgment.