2019 PLP 23 (YLRN)

SYED ARSHAD ALI, J.

Mst. Razia Begum (deceased) plaintiff filed a suit for declaration that she is owner in possession of the suit property vide unregistered deed dated 21.09.1944. Defendants contested the suit by filing their written statements. Defendant No.1 not only denied the existence/validity of the aforesaid deed but has further claimed that his father Muhammad Asghar Khan has gifted him 2/3rd share in the suit property vide gift deed dated 25.07.1979. He further stated that his deceased father has distributed all his property among his legal heirs. The facts of the case are that Muhammad Asghar Khan had two wives first namely Mst. Razia Begum and second namely Mst. Afsar Jan. Mst. Razia Begum has three sons namely Muhammad Afzal Khan, Muhammad Nawaz Khan, Rabnawaz Khan and one daughter Zakia Begum, whereas Mst. Afsar Jan had seven offspring Tahira, Yasmin Bibi, Shahida Bibi, Rashida Bibi, Shamim Akhtar, Sarfaraz Khan and Haqnawaz Khan. From the divergent pleadings of the parties, the learned trial Court had framed the following issues:-

1. Whether the plaintiff has got a cause of action?

2. Whether plaintiff is stopped to sue?

3. Whether suit is incompetent in its present form?

4. Whether the suit is bad for mis-joinder and non-jonider of parties?

5. Whether suit is frivolous and vexatious, hence, based on mala fide?

6. Whether plaint is liable to be rejected under Order VII, Rule 11, C.P.C.?

7. Whether the suit is within time?

8. Whether deceased Muhammad Asghar Khan was owner of the entire suit property in the year 1944?

9. Whether deceased Muhammad Asghar Khan sold the entire suit house to plaintiff vide sale deed dated 21.9.44?

10. Whether suit house was transferred by deceased Muhammad Asghar Khan to defendant No.1 2/3rd share and Mst. Afsar Jan predecessor in interest of defendants 1/3rd share vide transfer deeds both dated 25.7.79?

11. Relief.

2. Both the parties produced their respective evidence in support of their contentions. After recording evidence of the parties, the learned trial Court upheld the deed dated 21.09.1944 whereby Mst. Razia Begum (plaintiff) had purchased the suit property from her husband in lieu of Rs.99/-. The learned trial Court, however, disbelieved the gift deed dated 27.07.1979 in favour of Haq Nawaz defendant No.1. Accordingly the learned trial Court was pleased to decree the suit in favour of plaintiff against the defendants vide judgment and decree dated 28.09.2007. The defendants preferred an appeal before learned appellate Court. The learned appellate Court while reversing the judgment and decree of learned trial Court has held that since the attorney of plaintiff did not record his statement on Oath, therefore, has rejected the deed dated 21.09.1944 vide judgment and decree dated 25.08.2008.

3. Arguments heard and record perused.

4. Perusal of record reveals that learned appellate Court while discarding the evidence of attorney of plaintiff not being recorded on Oath has relied upon of the judgment of Honourable Lahore Court titled Nazir Ahmed v. District Council through Chairman District Council, Sargodha (2003 YLR 2052), in the said judgment the Honourable High Court has held that in Para 7 as under:- "

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 MLD 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 MLD 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)."

5. However, the learned appellate Court has given no findings regarding the validity of the gift deed dated 25.07.1979. The learned appellate Court was under obligation to render findings after determination of important points involved in the case. Hence, material issue regarding the validity of the gift deed has remained unattended before the learned appellate Court.

6. In the circumstances when the learned appellate Court has failed to formulate points of determination regarding all issues arising out of the impugned judgment and decree before him. The law mandates that case be remanded to the appellate Court for decision afresh. However, in the present case when the learned appellate Court has disbelieved the statement of attorney of plaintiff for the reasons that he was not administered Oath in such circumstances the best way is to remand the case to the learned trial Court for recording the evidence of attorney of plaintiff on Oath.

7. Indeed it is certain principle of law that no one should be prejudiced for the acts and omissions of the Court. It is the Presiding Officer of the Court to administer Oath to the witness. The learned appellate Court while relying on the judgment supra had disbelieved the evidence of attorney of plaintiff and dismissed the suit whereas ratio of the Nazir case is as stated above to remand the case to the learned trial Court after recording statement of witness on Oath. Similarly in Obaidullah Khan v. Umer Hayat Khan and others (2011 YLR 1731 Peshawar) in Para 7 has held that:- "

7. I would confine to the second point raised by counsel for the petitioner i.e. administering Oath to the defendants witnesses. It is an admitted fact that the statements of defendants witnesses have been recorded without Oath. As per counsel of the petitioner the entire proceedings are not in accordance with law, therefore, the case is liable to be remanded back to the trial Court to record the defence evidence on Oath. The issue is covered under section 5 of Oaths Act, 1873 which is reproduced below:- "(5) Oaths or affirmation to be made by witnesses interpreters; jurors. Oath or affirmation shall be made by the following persons:-- (a) all witnesses, that is to say, all persons who may lawfully be examined, or give, or be required to give, evidence by or before any Court or persons having by law or consent of parties authority to examine such persons or to receive evidence;"

8. Hence in view of the above, remanding the case to the learned appellate Court would serve no useful purpose as ultimately the case is to be remanded to the learned trial Court for recording evidence of attorney of plaintiff on Oath.

9. In view of the above, this revision petition is accepted and the impugned judgment and decree is set aside and the case is remanded to the learned trial Court with direction to administer Oath to the attorney of plaintiff and record his statement and the case shall be decided on its merits. This being old case, therefore, the learned trial Court shall preferably decide the case within a period of three months from the receipt of this judgment. ZC/308/P Case remanded.