The brief facts out of which the present second appeal arises are that the respondent filed a suit for recovery against the appellant amounting to Rs.1,57,057 before the learned Civil Judge 1st Class, Sargodha on 30-3-1991. The contents of the plaint reveal that the appellant secured a contract of weekly Mandi Mavashian of three different places namely, Bhagtanwala, Nihang Sial Sharif and Chak No. 133-NB for the year 1989-90 for a consideration of Rs.4,25,000, Rs.3,25,000 and Rs.1,00,000 respectively. The contents of the plaint further reveal that the appellant/defendant deposited the security and also executed an agreement with the respondent/plaintiff. The work order was also issued in favour of the appellant/defendant by the respondent. The contents of the plaint further reveal that the appellant/defendant failed to deposit the remaining instalments of Mandi Mavashian of Bhagtanwala since 1-1-1990. The respondent/plaintiff issued various notices to the appellant/defendant. Ultimately the respondent/plaintiff cancelled the contract of the appellant/defendant vide order dated 27-1-1990. Mandi Mavashian of Bhagtanwala was held by the respondent/plaintiff, District Council on 28-1-1990 and income of Rs.3,640 was received which was deposited in account of the respondent/ plaintiff as per contents of the plaint. The appellant/defendant submitted an application before the respondent/plaintiff for restoration of the aforesaid contract. The contract was restored and appellant/defendant was directed to deposit the remaining amount of the contract. The appellant executed an agreement with the respondent on 1-1-1990 but failed to deposit the amount to the respondent amounting to Rs.1,57,057 in spite of various notices issued by the respondents to the appellant/defendant. The appellant tiled written statement, controverted the allegations levelled in the plaint. Out of the pleadings of the parties the learned trial Court framed the following issues:--
(1) Whether defendant has executed an Iqrarnama dated 11-7-1989? OPP.
(2) Whether plaintiff is entitled to get recovered the amount claimed in the plaint from the defendant? OPP
(3) Whether plaintiff is estopped to file this suit? OPD
(4) Whether suit is not maintainable in its present form? OPD
(5) Whether suit is, barred by limitation? OPD
(6) Whether suit is frivolous one and defendant is entitled for special costs' If so, to what extent?
OPD.
(7) Whether Iqramama dated 11-7-1989 is illegal and forged one? OPD
(8) Relief.
2. The learned trial Court decreed the suit vide judgment and decree dated 30-6-1992. The appellant being aggrieved preferred an appeal before the learned Additional District Judge, Sargodha, who dismissed the same vide judgment and decree dated 8-1-1996, hence the present second appeal.
3. The learned counsel of the appellant submits that the appellant did not accept the signature on Exh. P.7 but both the Courts below did not give weight to this aspect of the record. He further submits that this fact was also admitted by P.W.1 Muhammad Afzal in cross-examination. He further submits that judgments of both the Courts below are result of misreading and non--- reading of the record and specially the evidence of P.W.1 and D.W.1. He further submits that trial Court did not record the evidence of the witnesses on oath as prescribed by this Court.
4. The learned counsel of respondent submits that both the Courts below have given concurrent findings of fact against the appellant. He further submits that the learned counsel of the appellant failed to point out any piece of evidence which was misread by both the Courts below. He further submits that both the Courts below have given concurrent finding of fact against the appellant after proper appreciation of the evidence on record. Mr. Muhammad Ashraf Kumma Legal Advisor of respondent submits that application was submitted by the appellant before the respondents and on the application of the petitioner, the contract teas restored in favour of the appellant by the respondent and possession was handed over to the appellant by the respondent. He further submits that agreement was also signed by the appellant.
5. The learned counsel of the appellant in rebuttal, submits that the appellant did not file any application for restoration of the contract qua Bhagtanwala Mandi Mavashian and signature was not admitted by the appellant and the respondent failed to bring on record any order of restoration of the contract on the application of the petitioner.
6. I have given my anxious consideration to the contentions of the learned counsel of the parties and perused the record.
7. Without adverting to the contentions of the learned counsel of the parties, I intend to decide the appeal on the ground that the evidence of the parties was not recorded by the trial Court on oath as prescribed by this Court, therefore, evidence recorded by the trial Court is irrelevant and is not admissible in evidence. In arriving to this conclusion, I am fortified by the law laid down by this Court in Jaffar Ali v. Muhammad Tufail (1991 M LD 48). The relevant observation is as follows:-- "I have considered the matter carefully. I feel persuaded to agree with the learned counsel for the petitioner. I find that the judgment and decree dated 15-10-1989 of the Appellate Court is solely based on the statement of Muhammad Amin recorded by it on solemn affirmation on 15-10-1989.
Since not only the amendment had already been made in the relevant provisions of Oaths Act but oath had also been prescribed by the High Court, therefore, the learned District Judge could not have recorded the statement of Muhammad Amin on solemn affirmation. There remains no doubt that the statement of Muhammad Amin recorded by the learned District Judge on 15-10-1989 is irrelevant and inadmissible and as such could not have been made basis of the impugned judgment and decree.
Pursuant to the above discussion, the revision is accepted. The judgment and decree of the learned District Judge dated 15-10-1989 is set aside and the case is sent back to him for fresh decision of appeal in accordance with law after providing the parties opportunity of being heard, leaving the parties to bear their own costs. "
The aforesaid, proposition of law is also supported by the following judgments:-- Michael Maseeh's case (1993 M LD 529).
Tariq Parvez's case (1992 PCr.LJ 955).
Muhammad Bakhsh's case (PLD 1956 SC 420).
Abdul Rehman's case (1988 PCr.LJ 2347).
8. In view of what has been discussed above, the appeal is accepted and the judgments of both the Courts below are set aside and the case is remanded to the trial Court to decide the case afresh after recording the statement of the witnesses on oath as prescribed by this Court in terms of the law laid down by this Court in the aforesaid judgment: Parties are directed to appear before the learned trial Court on 18-4-2003, who is directed to conclude the trial preferably within six months after receiving the order of this Court. Learned counsel of the parties are directed to cooperate with the learned trial Court so that the matter may be finalized within the prescribed period.