1. This petition calls into question the judgments and decrees dated 26-2-2002 of the learned Civil Judge/Illaqa Qazi, Timargera and dated 12-9-2002 of the District Judge/ Zilla Qazi Timargera wherein the suit of the respondent/plaintiff was decreed to the extent of recovery of the outstanding amount alongwith special costs while the relief in alternative regarding ownership of the suit shops due to non-payment of the amount was disallowed.
2. Briefly stated, the controversy arose because the petitioners/defendants failed to make good the payment of Rs.3,25,000 on account of outstanding amount of the Suzuki car sold to him by the respondent/plaintiff vide sale agreement dated 25-3-1996. There was second agreement between the parties wherein petitioner No.2 Kashar Khan agreed by becoming surety and bound himself to transfer the suit shops in favour of the respondent/plaintiff if the due amount was not paid within the extended stipulated period, however, again these undertakings were not honoured within the time frame, therefore, the respondent/plaintiff instituted the suit which was contested by the petitioners/ defendants by submitting joint written statement and at the conclusion of trial the decree was passed against the petitioners to the extent stated- above and appeal there against was also dismissed.
3. The learned counsel for the petitioners vehemently contended that none of the two agreements have been proved in accord with law and that section 7 of the Shari Nizam-e-Aadil Regulation, 1999 has been violated because the parties should have been first referred to the 'Musaleheen' before conducting the trial and also because the trial Judge has not undergone the Sharia'h course which is a mandatory requirement.
4. The learned counsel also laid considerable stress on the point that section 35-A, C.P.C. Has not been extended to the area which was previously dealt with under P.A.T.A. Regulation, therefore, the awarding of special costs was entirely without lawful authority.
5. The first objection is without any force because not only all attesting witnesses to the agreement dated 25-3-1996 have appeared and proved the execution of the said deed but also for the reason that the petitioners have admitted its correctness in their written statement and thereafter made admission to this extent while making statement in Court at trial, therefore, the execution of the sale-deed and liability incurred there under is established beyond any doubt.
6. The second objection with regard to section 7 of the ibid Regulation is also misconceived one because under section 7 the referring of dispute to 'Musaleheen' is not mandatory and such reference would become imperative only if both the parties to the dispute agree to the same. The mechanism provided thereunder is of a. Different nature in form but in substance this provision is pari materia to section 21 of the Arbitration Act, 1940 providing for the resolution of civil dispute through private Tribunal. The said system of providing Tribunal is prevalent in the Indo-Pak Sub- Continent more than century old, therefore, it got recognition from the Britishers while enacting the Arbitration Act, 1940 and the same is also acknowledged by the Injunctions of Islam. Anyhow, under no circumstances, in view of the plain language of the provisions of section 7 of the ibid Regulation, it can be held to be so mandatory that non-compliance therewith would vitiate the whole trial, moreso when established on record that both the parties agreed to refer the dispute to 'Muslaheen' for resolution thus the arguments advanced at the bar are patently untenable.
7. The contention that the learned trial Judge has not undergone the Sharia'h course in the first instance is not established on record and additionally the same is not of any legal worth to be approved when a Graduate in law is deemed to have undergone the course of Muhammadan Law because it is a compulsory subject therein.
8. The last and the most vehement argument of the learned counsel that the special costs awarded under section 35-A, C.P.C. Was illegal and without jurisdiction because the said provision of law, according to the learned counsel, has not been extended to the area, is equally misconceived one.
9. The provision of section 35-A, C.P.C. Was first inserted, in the Code through Act (No.IX) of 1922 wherein an option was given to the Provinces for the enforcement of said provision within its areas on the un appointed date. Through N.-W.F.P. Act (No.II) of 1989, section 35-A was enforced in this Province on 25th May, 1989 and later on through Regulation (No.II) of 1994 the said provision was extended to PATA and it is mentioned at Sr. No.18 of the Schedule annexed with the said Regulation which was subsequently substituted through Regulation (No.1) of 1999 as it is mentioned at Sr. No. 22 of the Schedule annexed thereto while the maximum limit of the special costs was enhanced from Rs.5,000 to Rs.25,000 vide Civil Law Reforms Act (No.XIV) of 1994 and this amending Act was also extended to PATA vide Regulation (No.II) of 1995.
10. As the present suit was instituted on 26-2-1998, therefore, section 35-A, C.P.C. a was amply applicable and was operative in the area on the said date thus in view of the special circumstances of the case wherein the admitted right of the respondent/plaintiff was denied and he was constrained to enforce the same through the Court of law against the petitioners, thus due to their highly deplorable conduct, the learned Courts have committed no legal error in imposing special costs.
11. It is well entrenched and deeply rooted principle of law and justice that a party to a written contract is bound to fulfill its contractual obligation and they would be liable for any breach and contravention of the same here in this world and hereafter too, therefore, both the learned Courts below have acted perfectly in accord with the said principle and the impugned judgments and decrees are sustainable in law thus this petition fails which is accordingly dismissed in limine.