2017 PLP 666 (YLR)

HAIDER ALI KHAN, J.

Through the instant writ petition under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973, the petitioners seek the following relief:-- "On acceptance of the instant writ petition, the impugned judgments and orders delivered by two Courts below may kindly be declared illegal, without lawful authority and the execution application of the respondents be dismissed without any further proceedings."

2. Precise and relevant facts arising from the instant petition are that on 15.06.2005, the petitioners had filed a civil suit against the respondents Nos.1 to 33 sought therein declaration, specific performance, perpetual injunction and possession as a consequential relief in respect of the suit property fully described in the heading of the plaint, before the learned Civil Judge/Illaqa Qazi-I, Matta, District Swat.

3. The learned trial Court procured the attendance of respondents Nos.1 to 33 who submitted their written statement and after framing necessary issues both the parties led their respective evidence, whereafter, the suit was dismissed for want of proof vide judgment dated 13.01.2011 by the learned Civil Judge/Illaqa Qazi-III, Matta, District Swat. Being aggrieved, the petitioners assailed the same in appeal before the learned Additional District Judge/Izafi Zila Qazi, Matta, District Swat, wherein, the petitioners moved an application by which they offered special oath on the Holy Quran to the respondents/defendants to the effect that Tajbar Khan and Fazal Akbar (defendants) have not received any consideration of sale regarding the suit property, in that case, the suit as well as appeal of the plaintiffs/petitioners be dismissed. Contents of the said application are reproduced herein below for convenience sake:-- The respondents/defendants submitted their written reply wherein the above stated oath offer was conditionally accepted with some improvements as to the litigation expenses and delivery of possession of the suit property to the respondents/defendants on the spot and in this respect statement of respondents Nos.1 and 19 was recorded which is reproduced herein below for convenience:-- In response to the above statement, the petitioners/plaintiffs also recorded their statement in support of the oath in the manner stated above, which is reproduced herein below:-- In the light of above special oath offered and duly accepted by the parties, the respondents/defendants took the oath as per satisfaction of the petitioners/plaintiffs before the learned appellate Court and the oath so administered was also reduced into writing, which is reproduced for convenience sake herein below:-- After administering the oath, appeal of the petitioners/plaintiffs was dismissed whereas the judgment and decree of the trial Court was kept intact by the learned appellate Court vide order dated 10.06.2011 with further direction that the petitioners/plaintiffs shall hand over the possession of the suit property immediately as had been agreed upon by the parties.

4. For compliance and execution of the order dated 10.06.2011, the respondents/ defendants submitted an application dated 05.07.2011 before the learned Additional District Judge/Izafi Zila Qazi, Matta, District Swat, which was opposed by the petitioners/plaintiffs through their written reply, whereafter, the learned appellate Court vide order dated 14/10/2011 treated the same as execution petition and entrusted the same for implementation to the learned Civil Judge/Illaqa Qazi-III, Matta, District Swat. The petitioners/plaintiffs filed objections on the execution petition on the ground that the order dated 10.06.2011 of the learned appellate Court is not executable under the law because the respondents were defendants in the suit, therefore, no decree can be passed in their favour. The learned executing Court dismissed the objections petition vide order dated 17.01.2012 at the cost of Rs.5000/-. The said order was further challenged by the petitioners/plaintiffs in revision petition before the learned Additional District Judge/Izafi Zila Qazi Matta, District Swat, which was dismissed vide impugned order dated 03.02.2012, hence the instant civil revision petition.

5. Arguments heard and record perused.

6. Perusal of the record would reveal that the main controversy amongst the parties is that as to whether the order dated 10.06.2011 of the learned appellate Court which was passed on the basis of special oath as per agreed terms by both the parties, is executable with regard to the delivery of possession in favour of the respondents/defendants? or the respondents/defendants would file fresh suit for possession of the suit property? As mentioned above the matter was patched up by the parties with their mutual agreement through administering special oath to the respondents/defendants subject to the condition that the appellants shall hand over possession of the suit property to the respondents immediately as had been agreed upon in the offer and acceptance of oath vide order dated 10.06.2011 of the learned appellate Court, which has attained finality. In this view of the case, the petitioners/ plaintiffs are legally and ethically bound to deliver physical possession of the suit property to the respondents/defendants. In this regard learned counsel for the petitioners failed to substantiate his stance by referring to any provision of law on the subject and as such we found no illegality or material irregularity in the impugned orders which may call for interference by this Court under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973.

7. For the reasons stated above, the instant writ petition stands dismissed, being bereft of merits. ZC/308/P Petition dismissed.