Petitioner filed a suit for specific performance against the respondent, and during the pendency thereof, when on 24-9-1995, the statement of the petitioner was being recorded as P.W.1 he deposed as under:-- Malik Zabita, appeared before the Court on 8-10-1995 and made the following statement: On 26-10-1995, the suit of the plaintiff was decreed by the trial Court on the ground that Malik Zabita has not taken the oath. Against the above, respondent preferred an appeal, which has been allowed by the learned Appellate Court and the case has been remanded. The reasons of acceptance and remand of case, are as follows: "The proceedings conducted by lower Court on 24-9-1995, show that the Civil Judge did not record the offer and acceptance of the parties separately and precisely and even statement of Malik Zabita that he has not prepared to give statement on oath on Holy Qur'an about the merits of the case was not recorded. So the impugned judgment and dec7cee are not sustainable in law. The appeal is therefore, accepted and the impugned judgment and decree are set aside and the case is remanded to the trial Court with a direction to record evidence of the parties and redecide the case afresh in accordance with law. "
Hence this petition.
2. Learned counsel for the petitioner by relying upon the cases reported as Muhammad Ali v. Maj. Muhammad Aslam PLD 1990 SC 841, Akhtar Ali and others v. Ejaz Ahmed and others 2002 CLC 1829; Mukhtar Ahmed Khan v. Mushtaq Ahmed 1998 SCM R 2049, Muhammad Mansha and others v.
Abdul Sattar and others 1995 SCM R .795 and Muhammad Akbar and another v. Muhammad Aslam and another PLD 1970 SC 241 states that where the parties have agreed for the decision of a case on the basis of a special oath, such agreement is valid in law and should be given due effect by the Court. In the instant case, the respondent categorically and confidently stated that Malik Zabita shall take oath, but as Mr. Zabita refused, resultantly, in the light of his statement on 24-9--1995, the suit was rightly decreed by the learned trial Court. The main reason of the Appellate Court that specific and separate offer and acceptance of the parties have not been recorded is unfounded and would make no difference, because from the contents of the joint statement, the intention of the parties is clearly spelt out and there is no ambiguity in the text of the statement or the intention of the parties, that the matter be decided on the basis of the special oath.
3. I have heard learned counsel for the parties. In none of the judgments cited above, parties had agreed for the decision of the case on the basis of special oath, taken by a third person, rather these cases are restricted to the oath taken by the parties to the litigation themselves, therefore, the judgments are distinguishable. The issue involved in the present case, is whether the parties to the litigation can agree for the decision on account of oath on Holy Qur'an, taken by a third person.
Obviously, if such person comes and takes oath, the decision of the case can be made on the basis of the same. As such the oath shall be deemed to be the evidence, Conclusively against the person, offering to be bound by it in terms of section 11 of the Oaths Act, 1873. But if a person on whose oath, the parties had sought the decision of the case, refuses to take the oath, the agreement between the parties on the basis of which they sought the decision of the case, stands frustrated. In the instant case, had Malik Zabita taken the oath in support of plea of either of the parties, the position would have been different and the decision of the case, could have been made on the basis and in the light of his statement, but the situation here is that Malik Zabita, when appeared before the Court, refuses to take the oath at all, therefore, in the light of statement of the parties, as agreement was contingent in nature depend upon the happening of particular event i.e. Statement of Malik Zabita, but such statement, he refused to make, was no more enforceable and stood frustrated. Therefore, notwithstanding that learned Court of appeal has given different reason but on account of above. I do not find if the petitioner was entitled for the decree passed by the learned trial Court.