1996 PLP 695 (CLC)

Khadim v. Judge, Family Court, Samundari District Faisalabad and another 1991 MLD 1250 and Abdul Qayyum Beg v. Rehmat Wali and 4 others PLD 1993 SC 289 ref. Ch. Naseer Ahmad for Petitioner. Nemo for Respondents. Date of hearing: 21st February, 1995. The petitioner has instituted a suit for damages on 30‑1‑1989 in the Court of Civil Judge, Bahawalnagar against Noor Muhammad and two others for recovery of Rs.15,000 because. of the alleged malicious prosecution which was taken up by Noor Muhammad respondent No.l against the plaintiff‑petitioner. During the pendency of the suit, on 9‑9‑1990 the respondent Noor Muhammad made an offer to the plaintiff that if Muhammad Anwar witness takes oath on 'Holy Qur'an' and states before the Court that the criminal case which was got registered against the plaintiff by Noor Muhammad defendant, was false then, he would have no objection to the plaintiff's suit being decreed. On the, making of this offer the learned trial Court recorded the statement of Noor Muhammad defendant‑respondent No.1 to this effect and also recorded the statement of Muhammad Anwar witness who stated that he has heard the offer and he accepts the same, meaning thereby that he was ready to make this statement and thereafter he took oath on "Holy Qur' an" and made a statement before the trial Court which is recorded in the judgment, dated 9‑9‑1990,. to the effect that the F.I.R. which was lodged on behalf of Noor Muhammad defendant No.l was false and baseless and that the plaintiff's suit is based on truth and in view of this statement which was made before the learned trial Court, the plaintiff's suit was decreed. The. learned District Judge, Bahawalnagar‑vide his judgment, dated 28‑4‑1991, accepted the appeal of Noor Muhammad and after setting aside the judgment and decree of the learned trial Court remanded the case back to the trial Court with the direction to decide it afresh and pronounce judgment after recording evidence of the parties. The appeal was accepted mainly on the ground that there are some defects in the proceedings. Hence this revision petition.

2. On 19‑10‑1994 in view of the report of the Process‑Server Noor Muhammad respondent was proceeded against ex parte. The case was listed again on 16‑11‑1994 and then on 14‑12‑1994, in the interest of justice it was ordered that another effort be made to effect service on the respondents and fresh notices were issued to the respondents for 17‑1‑1995. Once again fresh notices were ordered to be issued on 17‑1‑1995 to the respondents and today none has turned up on behalf of the respondents and, according to the report of Process -Server, the respondents have refused to accept service of notice. As such, the respondents are proceeded ex parte.

3. I have gone through the judgment of the First Appellate Court and the objections, which have been raised by the learned District Judge, Bahawalnagar in regard to the proceedings which have been conducted by the trial Court, are not sustainable in law. The learned District Judge has held that there is nothing on the file to show that Muhammad Anwar witness was present in Court when he made offer. All the proceedings of offer or acceptance were made on 9‑9‑1990, the case was also fixed for evidence on the said date, the statement of Muhammad Anwar was also recorded on the said date and he thumb‑marked it in token of its correctness which shows that on that date he was present in Court. Even otherwise there is nothing on the record to show that Muhammad Anwar had any reason to make a mis‑statement because he stated that he had heard the offer and accepted it: The next defect according, to the First Appellate Court is that the plaintiff was not asked to agree to the offer made by defendant. The plaintiff was present in Court when the offer was made by the defendant and he must have agreed with the offer, otherwise the learned trial Court would not have proceeded to record the statement of the defendant. Even otherwise the omission to record the plaintiff's statement separately is merely an irregularity which does not, in law, invalidate the entire proceedings of taking oath and recording statement. Section 13 of the Oaths Act (X of 1873) covers such like situations as well and lays down that no omission to take any Oath or make any affirmation and no irregularity whatever in the form in which any of them is administered, shall invalidate any proceedings. The decision of the First Appellate Court is clearly against this statute law. Furthermore, the plaintiff never objected to the decision of his suit in terms of the offer made by defendant. If he had not accepted the offer of the defendant, he would have. immediately raised his objection as he was personally present in Court on the relevant date. It shows that he accepted the offer and only then the Witness Muhammad Anwar took Oath on 'Holy Qur' an' . The third and the last defect pointed out by the First Appellate Court is that the trial Court did not record a separate statement of Muhammad Anwar under Oath on 'Holy Qur' an' . This is also one of those omissions, which is covered by section 13 of the Oaths Act (X of 1873). The fact remains that Muhammad Anwar took Oath on 'Holy Qur'an' in front of parties and before the learned trial Court and stated that the criminal case registered against the plaintiff on behalf of defendant was false and baseless. This is so recorded by the trial Court in its judgment, dated 9‑9‑1990. It is nobody's case that Muhammad Anwar did not take Oath on 'Holy Qur'an'. The objection is merely in regard to the form in which the proceedings were conducted by the trial Court on 9‑9‑1990, which as stated above does not invalidate the entire proceedings. Reference may also be made to a decision of Lahore High Court titled Khadim v. Judge, Family Court,' Samundari, District Faisalabad and another (1991 MLD 1250) wherein it is held that the order in question shall not become void even if procedure laid down in sections 6 and 7 of Oaths Act (supra) is not followed. The Hon'ble Supreme Court of Pakistan in a decision titled Abdul Qayyum Beg v. Rehmat Wali and 4 others (PLD 1993 SC 289) has held that in the absence of any legal/Constitutional command to the contrary, Islamic mode for resolution of dispute in question is perfectly lawful. In the said case decision was made on the basis of Oath by competent Authority. Such decision was annulled by revisional authority and parties were put to retrial. It was held by the Hon'ble Supreme Court that the decree passed on such Oath could not have been annuled on any ground by revisional authority and the entire proceedings conducted thereafter were declared to be without jurisdiction and the decree passed on Oath in favour of appellant was restored.

4. For the reasons mentioned above, the order, dated 28‑4‑1991, of District Judge, Bahawalnagar is set aside and the judgment and decree, dated 9‑9‑1990, of the trial Court is restored with costs. H.B.T./M‑2081/L Revision accepted.