' This judgment shall decide Civil Revisions Nos. 449 and 450 of 1996 as common questions are involved.
2. The petitioner in these two cases filed a suit for specific performance of agreement to sell.
According to the plaint Ayub Khan respondent agreed to sell the suit-land mentioned therein, to the petitioner vide agreement to sell executed by him on 13-9-1990 for consideration of Rs,62,000.
The suit was contested by Ayub Khan respondent. Issues were framed. Evidence of the parties was recorded. Learned trial Court dismissed the suit vide judgment and decree, dated 27-6-1992.
3. On 9-6-1991 Hashmat Dad respondent No,1 in Civil Revision No,450 of 1996 filed a suit for declaration against the petitioner and said Ayub Khan. According to him the mutation whereby 7/56 shares of the said respondent was transferred in favour of petitioner was void as he never transferred the land. The suit was contested by the petitioners. The said Hashmat Dad is stated to be real brother of said Ayub Khan. This suit after trial was also dismissed by the learned trial Court vide judgment and decree, dated 11-5-1992. The petitioners filed a first appeal against the said judgment and decree, dated 27-6-1992 while Hashmat Dad filed a first appeal against the judgment and decree, dated 11-5-1992. Both the appeals came upon before a learned Additional District Judge, Pattoki in District Kasur, on 18-12-1995 Ayub Khan respondent got recorded the following statement in both the appeals:- ' On the same date Muhammad Idrees the attorney of Hashmat Dad made the following statement: {{URDU TEXT}} ' Ch. Bashir Ahmad, Advocate, learned counsel for the petitioner got recorded his consent that let the appeals be decided in accordance with the said statements. Thereafter the learned Additional District Judge passed the following orders in both cases:-- {{URDU TEXT}} ' On 19-12-1995 the learned Additional District Judge recorded that none of the two persons is present. He proceeded to dismiss the appeal of the petitioners and to allow the appeal of Hashmat Dad respondent No,1 and to decree his suit.
4. Civil Revision No, 449 of 1996 has been filed against the decision dismissing the appeal of the petitioners while Civil Revision No,450 of 1996 has been filed against the decision of the learned Additional District Judge allowing the appeal of Hashmat Dad respondent No,l.
5. Learned counsel for the petitioners argues that the impugned orders are not warranted by any provisions of law and as such are without jurisdiction. Learned counsel for the respondents had tried to support the impugned orders and decrees.
6. I have gone through the records with the assistance of the learned counsel of the parties. I have already reproduced above the entire proceedings that took place before the learned Additional District Judge on 18-12-1995 and 19-12-1995. It is but evident on the face of the record that the learned Additional District Judge has proceeded in a manner not at all warranted by law. The matter of course is governed by Chapter IV of Oaths Act, 1873 (sections 7 to 12). Section 7 provides form of the oath to be prescribed by High Court. Section 8 empowers a Court to tender certain oath within parameter of said section upon fulfilment of the condition thereof. Section 9 is more relevant as it provides if any party to any judicial proceedings offers to be bound by any such oath or solemn affirmation as is mentioned in section of the said Act, if such oath or affirmation is made by the , other party to, or by any witness, in such proceedings, the Court may, or if it thinks fit, ask such party or witness, or cause him to be asked, whether or he will not make the oath or affirmation. The proviso to this section prohibits a Court from compelling a party or witness to attend personally the Court solely for the purpose of answering such question. It is only upon the agreement or acceptance by such party or witness to make such oath or affirmation that the Court under section 10 of the said Act proceeds to administer to oath section 11 makes such evidence conclusive against the person who offered to be bound as aforesaid.
7. Before I proceed to refer to section 10 of the said Act, I may note here that the learned Additional District Judge made no attempt at all to ask or cause to be asked as to whether the said persons agreed to take oath. Now section 12 of the said Act. Provides for the procedure in case of refusal to make oath. All that a Court can do in case a party or a witness refuses to make oath or solemn affirmation referred to in section 8 of the said Act, he shall not be compelled to make it, but the Court shall record, as part of the proceedings, the nature of the oath or affirmation proposed, the facts that he was asked whether he would make it, and that he refused it, together with any reason which he may assign for his refusal. The learned Additional District Judge has proceeded in contravention of the said provisions of law.
8. The learned Additional District Judge has observed in his impugned order as follows:-- "Be that as it may, it is fact that in terms of the agreement arrived at between the parties, dated 18- 12-1995 the appellants were to produce either of the said two persons in Court in which they have failed."
9. I am afraid, I do not find any said agreement on record.
10. Both the civil revisions are allowed. The impugned orders and decrees dated 19-12-1995 passed by the learned Additional District Judge, Pattoki are set aside. The result would be that the first appeals filed by the petitioners as well as Hashmat Dad shall be deemed to be pending in the Court of learned Additional District Judge, Pattoki, where the parties shall appear on 10-9-2003. The learned Additional District Judge shall requisition the records and proceed to hear and decide both the appeals on their respective merits in the light of evidence on record. No order IC as to costs.
' A copy of this judgment be immediately remitted to the learned District Judge, Kasur.