1988 PLP 574 (CLC)

(b) Constitution of Pakistan (1973)‑‑ ‑‑‑Art. 199‑‑West Pakistan Urban Rent Restriction Ordinance (VI of 1959), S. 13‑‑Oaths Act (X of 1873), Ss. 8 to 12‑‑Constitutional jurisdiction against finding based on oath resulting from agreement of parties thereto‑‑Where finding of Rent Controller was passed within lawful authority and any legal infirmity much less jurisdictional defect could not be pointed out therein, such finding, held, could not be set aside in constitutional jurisdiction of High Court. Ch. Muhammad Yamin for Petitioner. Syed Farooq Hassan Naqvifor Respondents. Date of hearing: 23rd December, 1987. The petitioner Muhammad Aslam has moved this constitutional petition praying therein that the impugned orders dated 23‑9‑1987 and 26‑10‑1987 passed by the learned Rent Controller may be declared without lawful authority and of no legal consequence.

2. Briefly stated, the facts of the case are that the respondent No. 2 Muhammad Munir Zubair moved an eviction petition against the petitioner‑tenant from shop No. 58 on the ground of personal need on 29‑11‑1986. vide Annexure 'A'. The petitioner contested the ejectment petition by filing the written statement on 11‑1‑1987. On 22‑9‑1987, learned counsel for the petitioner made an offer to respondent No. 2 that if he takes an oath on the Holy Qur'an that he has no other shop on the same road the same vicinity, he shall have no objection in the acceptance of his ejectment petition. On 23‑9‑1987, respondent No. 2 attended the Court and after taking an oath, he started making the statement. However, during the process of making the statement, he collapsed and was provided a chair by the Court. In view of the special circumstances, the case was adjourned to 18‑10‑1987. A copy of the statement of respondent No. 2 is available on record and has been marked as Annexure 'C'. In the meantime, on 23‑9‑1987, the petitioner submitted an application before the learned Rent Controller saying that respondent No. 2 could not take the oath on 23‑9‑1987 and as such, the petitioner is not bound by the offer made earlier by him in the matter. On these premises, the petitioner submitted that there is sufficient cause to resile from his earlier offer vide Annexure 'D'. Respondent No. 2 submitted a written reply to the application. The position taken by the respondent was that he had already made a statement in Court and had taken the oath and, therefore, the decision in the case may be announced. The learned Rent Controller after hearing the parties, rejected the application of the petitioner holding that he was not competent to withdraw the offer. As stated earlier, the petitioner has assailed the orders of the learned Rent Controller dated 23‑9‑1987 and 26‑10‑1987.

3. Learned counsel for the petitioner contended that respondent No. 2 is not a reliable person and as such, he cannot be permitted under law to reap benefit from the offer made in the case by the petitioner. It is next argued that the procedure laid down in sections 8 to 12 of the Oaths Act, 1873, has not at all been followed by the learned Rent Controller. Learned counsel concluded by saying that in the instant case, there was no clear oath which was administered. Learned counsel for respondent No 2 submitted that the application of the petitioner was rightly rejected by the learned Rent Controller vide his order dated 26‑10‑1987. Learned counsel stated that the offer and acceptance was essentially in the nature of an agreement and as such, both the parties were bound by that agreement. Learned counsel for the respondent has placed reliance in that behalf on Attiqullah v . Kafayatullah 1981 S C M R 162 and Maulvi Muhammad Ramzan v. Muhammad Ismail 1982 S C M R 908 in support of his contention.

4. I have heard learned counsel for the parties and perused the record very carefully. I am of the view that both the parties agreed that the dispute be resolved by taking an oath on the Holy Qur'an. The statement was recorded by the learned Rent Controller. Thus, this was clearly an agreement between the parties and under law none of the parties could be allowed to go back from the agreement they have entered into voluntarily in Court. The statement of the respondent could not be concluded because he while making the statement collapsed in Court and, therefore, the case was adjourned. This did not mean that the agreement arrived at by both the parties has been done away with by them In my view, the agreement still stands despite the fact that the statement could not be completed on account of the indisposition of the respondent in Court. Thus, the finding that the petitioner cannot be allowed to resile from the agreement is not open to challenge in law. The rule laid down in the above-said authorities is applicable to the facts and circumstances o this case in all respects.

5. The upshot of the above discussion is that the impugned order dated 26‑10‑1987 passed by the learned Civil Judge 1st Class, Jhang is with lawful authority. Learned counsel for the petitioner has not been able to point out any legal infirmity much less the jurisdictional defects in the impugned order. Resultantly, this petition being devoid of force, is dismissed leaving the parties to bear their own costs. A . A . / M‑552/ L ‑‑‑‑‑ Petition dismissed.