This petition under section 115 of the Code of Civil Procedure, 1908, arises out of a suit for declaration filed by the petitioners against the respondents to the effect of ownership of land measuring 390 Kanals. The suit was decreed after contest by the trial Court on 6-4-1991 in favour of the petitioners, The decree was challenged by the respondents by filing an appeal which was accepted on the sole ground that the evidence of the witnesses was not recorded after administering the new Oath prescribed by this Court in pursuance to an amendment of Oaths Act, 1873. Consequently, the case was remanded to the trial Court for decision afresh after recording the evidence of the witnesses on prescribed Oath.
2. Learned counsel for the petitioner has contended that the mere fact that Oath had not been administered in accordance with the fresh Oath prescribed by the High Court under section 7 of the Oaths Act, was not sufficient in itself to render the judgment and decree passed in the proceedings as illegal, at the most it was an irregularity which can be procured by section 13 of the Oaths Act, 1873.
3. This contention of the learned counsel has force and is supported by section 13 of the Oaths Act, which provides that no omission to take Oath or make any affirmation and no irregularity whatever in the form of Oath administered shall invalidate the proceedings or render inadmissible any evidence, whatever in or in respect of which such omission, substitution or irregularity took place, or shall affect the obligation of a witness to state the truth. The provision in question was considered by the Supreme Court in the case of Sajjad Ahmad and another v. The State 1992 SCMR 408, wherein it was ruled that the evidence of the prosecution witnesses which was not recorded by the learned trial Court on Oath, is not a fatal flaw which may vitiate the whole trial and, as such, the plea was repelled. It was further observed that irregularity was certainly curable under section 13 of the Oaths Act, 1873 as held by the Federal Shariat Court in the case of Zeb-ul-Haram v. The State PLD 1991 FSC 1. It is, thus, clear that the Appellate Court acted with material irregularity while holding that since the evidence was not recorded on fresh Oath prescribed by the Oaths Act, the trial stood vitiated. In view of the above discussion, this revision is accepted, the judgment and decree passed by the learned Additional District Judge is set aside and the case is remanded to him for decision afresh.
As no one has appeared for the respondents, no order as to costs.
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