1999 PLP 2852 (MLD)

This is a revision, petition against the order of the learned Additional District Judge, dated 21-2-1998 whereby he dismissed the appeal of the petitioner on the basis of the oath taken by the respondent in response to the proposal made by the petitioner-plaintiff.

2. The petitioner was plaintiff before the trial Court, had filed a suit for specific performance on the basis of some oral agreement in respect of 8 Kanals of land situated in Khata No.43 of Mauza Rao Bhela Sharqi, Tehsil Kot Addu, District Muzaffargarh. The assertion of the petitioner-plaintiff was categorically refuted by the respondent-defendant by filing a written statement. He denied the existence of any agreement to sell the suit land -to the petitioner and receipt of any money from him. On the issues framed by the learned trial Court both the parties had an opportunity of leading their respective evidence. The learned Trial Court after perusal of the evidence on record dismissed the suit vide judgment, dated 7-7-1997 with costs as he came to the conclusion that there was no agreement between the parties as alleged and that the plaintiff had no cause of action.

3. The petitioner-plaintiff filed an appeal before the Appellate Court where the parties agreed for disposal of the same on the basis of oath. As agreed between the parties the respondent-defendants took oath that he had neither received any money from the petitioner-plaintiff nor had he entered into any agreement and that the suit was false. In view of the oath by the respondent defendant the appeal filed by the petitioner was dismissed on 21-2-1998. Hence, this revision petition.

4. Learned counsel for the petitioner has contended that judgments of the two Courts below are against the law and facts as according to him the evidence on record led by the petitioner-plaintiff has not been correctly appreciated and that Appellate Court acted illegally in dismissing the appeal of the petitioner on the statement of the respondent-defendant without procuring the signatures of the petitioner/plaintiff and his counsel. He relies on rule 3 of Order 23, C.P.C. to contend that the compromise should have been recorded by the Appellate Court.

5. When asked as to whether the petitioner was present before the Appellate Court, on 21-2-1998, and whether the statement was made by him, the learned counsel could not contradict the fact of presence of the petitioner or making of the statement by him but he submitted that the statement was required to be signed by the parties otherwise no compromise could be termed as legal or binding and would be violative of the Order 23, rule 3, C.P.C.

6. In view of the factum of presence of the petitioner before the appellate Court and the proposal of statement having been made by both the parties and the mode of disposal of the appeal having been agreed the non-signing of the statement by the petitioner does not make any material difference. The provisions of Order 23 of the, C.P.C. are indeed not attracted in they circumstances of the case inasmuch as the parties had agreed- to get the matter settled if respondent Ghulam Yasin takes ooth on the Holy Qur'an. The oath was accordingly taken by the respondent-defendant before the Appellate Court, and it passed the order accordingly.

7. Such a mode of disposal of cases fall within the realm of Oaths Act, 1873 i.e. sections 8, 9, 10 and 11 of the Act. On consideration of various judgments, it was held in Ratanlal Saligram and another v. Nathulal Pankarjai Namdee (AIR 1961 MP 108) that the Oaths Act does not prescribe any formality of procedure for a special oath. In Atiq Ullah v. Kafait Ullah (1981 SCMR 162), appellant before the learned District Judge made an offer that the matter be decided on oath to be taken by Kafait Ullah that if he "takes oath on Holy Qur'an to the effect that he had not sold the land in question to him (Atiq Ullah) he would be bound by it. " This offer was accepted by Kafait Ullah. However, Atiq Ullah thereafter, made an attempt to withdraw, the offer but he was not allowed to resile from the said offer. Kafait Ullah accordingly took the oath on Holy Qur' an that he had not sold the land nor received any money from Atiq Ullah. On this statement the appeal filed by Atiq Ullah was dismissed. His revision failed before this Court. On the petition for leave to appeal before the Supreme Court, their lordships of the Supreme Court after review of the case law on the subject held that there was no ground in law or in equity, on which the petitioner could claim the right of resiling from the solemn agreement. The petition was accordingly dismissed. To the same effect is the case of Maulvi Muhammad Ramzan v. Muhammad Ismail (1982 SCMR 908) and Muhammad Ali v. Muhammad Aslam (PLD 1990 SC 841).

8. To allow a party to resile from an undertaking of this nature would amount to allow him to play the game of hide and seek, to play fast and loose, to blow hot and cold and to approbate and reprobate, not only with the other party C but also the Court, and would be an abuse of the process of the Court. No party can be permitted to assume inconsistent positions in the Court. In Abdul Wahab v. Habib Ali (PLD 1969 Lah. 365 at p. 370), it was considered as a settled proposition that once a mode (procedure) is adopted by the Court on the request of the parties, the decision given in pursuance thereof should be given effect to and that the parties are estopped from challenging the mode of decision subsequently. Similar principle was reiterated in some what different form by the Hon'ble Supreme Court in Haji Muhammad Asghar v. Malik Shah Muhammad Awan and another (PLD 1986 SC 542) and it was laid down that where a party to proceedings before a Court or Tribunal enters into an agreement of its own free will for disposal of the matter, it can not turn round and successfully plead that it had no legal right to consent and the Court or authority could not act on such consent and should not be allowed to do so.

9. In the present case, there is no assertion or allegation that the petitioner had not consented to the mode of disposal of the appeal on the statement of the respondent/defendant before the Appellate Court. Having agreed to such a mode and been acted upon he cannot turn round or resile from the same on the mere assertion that this statement had not been signed by him. His case in paragraph 7 (C) of the petition is that "there was no justification to dismiss the appeal on the sole statement of the respondent particularly without procuring appellant's and his counsel signature". It clearly shows that mode of decision was agreed by him but wants to resile now that his signatures were not "procured". It is an after thought and is also established from the record as the order dismissing the appeal had been passed on 21-2-1998 in the presence of the petitioner, but was not agitated through any application/review before the Appellate Court if, at all, there could be any justifiable ground. In view of the above, the disposal of the appeal by the Appellate Court on the statement of respondent-defendant does not suffer from any illegality and is unexceptional. This petition has no merit and is dismissed is limine. Q.M.H./G-115/L Revision dismissed.