2018 PLP 1959 (CLC)

MOHAMMAD IBRAHIM KHAN, J.

Bite the dust, Muhammad Saeed Khan in his lifetime brought his suit for obtaining declaration with regard to the suit land the boundaries of which are given in the head-note of the plaint is his ownership on account of purchase by a deed dated 12.09.1994, he is since in possession. This ownership title is denied by his brother Ameen Ul Haq, thereby with the prayer for obtaining permanent injunction that he should be permanently restrained from disowning his ownership and shall not interfere in his peaceful possession. In alternate if possession has not been proved the prayer for possession has also been sought of this suit property.

2. The parties, the deceased Muhammad Saeed Khan and Ameen Ul Haq are brother inter-se and are the sons of Kachkol Ahmad. Muhammad Saeed Khan the deceased in his young age had gone to Dubai in order to earn his livelihood. He remained there for long 37 years and in the year 2009 came back to his home country. During the period of earning his livelihood at Dubai he sent up his money for the purchase of a suit land from one Muhammad Israr through a deed dated 12.09.1994, therefore, on the basis of this deed he be declared as owner and in possession of the suit property.

3. By his written statement Ameen Ul Haq denied the ownership of his deceased brother Muhammad Saeed Khan and thereby after the demise of Muhammad Saeed Khan he was survived by his Legal Heirs as is evident from the order sheet dated 26.11.2013 and admittedly entered their names on 11.12.2013 for their substitution instead of Muhammad Saeed Khan. The issues on the basis of pleadings of the parties were reduced on the even date, which have not been annexed with this petition, therefore are not reproduced here.

4. During the course of evidence it is of preeminent importance that father of both the deceased Muhammad Saeed and Defendant (herein the Petitioner Amin-ul-Haq) recorded his statement as PW-4 accordingly all the facts stated by the deceased Muhammad Saeed Khan, his father Kachkol Ahmad has narrated that the suit land belong to the deceased Muhammad Saeed and it was purchased by him by the money he earned through Labour in Dubai. Yet during the course of further proceedings a joint statement on 16.04.2015 was recorded by the learned trial Court, here the parties agreed to settle the dispute regarding the suit property through appointment of Ulama/Mufties/Musleheen and forwarded the names of Mufti Kifayatullah of Bakhtkhela and Mufti Maulana Badar Munir village Amandara. It was further agreed that whatever the outcome of the decision of these Musleheen, the parties will abide by it and will be accepted in letter and spirit and decree accordingly is to be passed in favour of either of party. Later by another joint statement of Muhammad Sohail the special attorney on behalf of the Plaintiffs and Ameen Ul Haq the Defendant himself recorded their statement whereby on account of being busy in their personal pursuits Mufti Kifayatullah and Mufti Badar Munir were not willing to patch up the matter by standing as Musleheen and the parties further requested that Mufti Rahat Said and Maulana Inayat-ul-Haq to settle their dispute. They recorded the statement of the parties and even statement of Kachkol father of the deceased Muhammad Saeed and Ameen Ul Haq was recorded. Thus on the basis of oath being administered to the Defendant Ameen Ul Haq who is Petitioner herein and even prior in time Legal Heirs of the deceased Muhammad Saeed have submitted their application that because of the reason their uncle Ameen Ul Haq has been declared as , the interest of womenfolk and minors are involved thus, they want to resile from administering oath to him but this request was not entertained and further proceedings were fixed for taking oath on 07.04.2016.

5. It is by the judgment as contained in Civil Suit No.143/1 of the year 2013 vide the final order dated 07.04.2016 that suit for obtaining declaration in favour of the Legal Heirs of deceased Muhammad Saeed was dismissed.

6. All the Legal Heirs of deceased Muhammad Saeed including womenfolk Mst. Perveeen, Mst. Janat Hawa widows, Mst. Zakia, Mst. Arifa, Mst. Sidra and Mst. Nabila being daughters and minors Abdul Aziz and Ihtisham sons of the deceased preferred their joint Appeal No.76/13 of the year 2016 and Muhammad Sohail along with Muhammad Tufail the other major sons/ Legal Heirs of the deceased Muhammad Saeed have preferred their separate appeal bearing No.75/13 of the year 2016 against the impugned findings in the judgment of learned Civil Court. Both these appeals were consolidated, hence on 30.03.2017 the learned appellate Court was pleased that the womenfolk mothers of the said Muhammad Shoail appointed him attorney on their behalf and on behalf of the minors when there was no proper Guardian-ad-litem the oath has wrongly been administered, therefore, findings in the judgment dated 07.04.2016 were set aside and the matter was sent back to the learned trial Court with the direction to record evidence of the parties and on merits decide the controversy in between them.

7. This is Civil Revision preferred by Ameen Ul Haq against the Legal Heirs of his deceased brother Muhammad Saeed with the following perspective prayer:- "It is therefore, humbly prayed that on acceptance of this revision petition the impugned order, judgment and decree of the learned Additional District Judge/Izafi Zila Qazi Malakand at Batkhela dated 30.03.2017 may kindly be set aside and the judgment, order and decree of the learned Civil Judge-I/Illaqa Qazi Malakand at Batkhela dated 07.04.2016 has to be maintained and the suit of plaintiffs/respondents may please be dismissed with cost. Any other remedy which is just, appropriate and efficacious may also be awarded."

8. Learned counsel for the Petitioners referred to PLD 1996 Supreme Court 237 "Muhammad Rafique and another v. Sam Muhammad and others", wherein the relevant citation speaks of:- After offer of special oath made by plaintiffs before Trial Court which was accepted by defendants, plaintiffs could not be allowed to resile from said oath unless they were able to establish that agreement arrived at for disposal of suit in accordance with special oath was either void or frustrated. Likewise reliance has also been placed on 1991 SCMR 162 "Attiquallah v. Kafatullah", wherein it has been held:- Such offer when accepted an agreement in nature of contract-One of contracting parties could not back out of such agreement unless contract void or frustrated-None of such eventualities occurring, trial Court justified in refusing to permit petitioner from resiling from his offer to be bound by special oath of other party, such other party having accepted offer. On the same analogy PLD 2016 Lahore 428 "Muhammad Rafique v. Nasir Mehmood" has been referred to. The relevant citation of the ibid judgment is reproduced as under:- Once offer made by one party has been accepted by the other party and the same is acted upon, the parties cannot wriggle out from output thereof, as such offer and acceptance will be an agreement of binding nature. If the offer was accepted by the party, it is bound to oblige the same. In this behalf reliance can be placed on 2010 YLR 314 (Lahore) "Mst. Raheela Salmat v. Additional District Judge Faisalabad and 2 others". The relevant citation of the judgment opines:- Offer was accepted by the plaintiff by filing reply of the applications

Contents of the memo. of appeal filed by plaintiff revealed that the defendant resiled from his undertaking

Defendant could not be permitted or allowed to resile or back out from his offer. Likewise, learned counsel for the Petitioner placed reliance on plethora of judgments of the Hon'ble Superior Courts in respect of power of attorney being furnished by Parda Nasheen ladies/women-folk. Reliance has been placed on 2006 YLR 2074 (Peshawar) "Mst Bulbula and others v. Abdullah and others", wherein it has been held:- Plaintiffs through their Special Attorney, moved application for decision of case on basis of oath on Holy Qur'an

Said offer was accepted by defendants and pursuant to oath taken by them, suit was dismissed by the Trial Court and that judgment was upheld by Appellate Court

Oath having been taken by defendants which emanated from the offer made by plaintiffs of their own free will, accord was governed by Ss.8 to 11 of Oaths Act, 1873 and not by Art.163 of Qanun-e-Shahadat, 1984--Plaintiffs having offered to the defendants to decide matter on basis of oath, could not be allowed to take a somersault and agitate that being illiterate 'Pardanashin' ladies they were un-aware of the legal consequences of that oath

Settlement to decide matter on oath, would constitute valid agreement from which parties could not conveniently wriggle out, unless contract was ex facie shown to be void or incapable of implementation, which was not the case here. This view has further been affirmed in 2003 SCMR 1199 "Allah Ditta and others v. Mian Muhammad Akram and others". It has been held therein:- Contention of the minor was that in the absence of appointment of guardian-ad-litem, the proceedings against him were ineffective

Validity

High Court had rightly dismissed the revision for the reason that after having owned the filing of appeal through the attorney, the minor could not challenge the authority of the attorney as the real father of the minor was his natural guardian and the memo. of appeal was not even signed by the minor himself

Supreme Court declined to interfere with the judgment and decree passed by the High Court in exercise of revisional jurisdiction

Leave to appeal was refused. With regard to minors reliance has been placed on 1995 SCMR 865 "Obaid Asghar v. Farhat Shaheen". The relevant citation of the referred judgment speaks of:-- Next friend of the minor made an offer that if father of the respondent (lady) took oath on Holy Qur'an that respondent (lady) had not been divorced by deceased, suit may be dismissed

Father of Respondent having taken such oath, suit was dismissed

Plea that such compromise or agreement having not been made with the permission of the Court, offended against the mandatory provision of O.XXXII, R. 7, C.P.C.

Validity

Held, offer of oath made by next friend was only a special method of proof adopted by the next friend and was not in the nature of an agreement or compromise and, therefore, did not require the sanction/leave of the Court as contemplated by O.XXXII, R. 7, C.P.C. Inversely learned counsel for the Respondents placed reliance on PLD 1970 Supreme Court 331 "Mst. Asifa Sultana v. Honest Traders Lahore and another" wherein it has been held:- (a) Oaths Act (X of 1873)

S. 9-Special leave to appeal granted by Supreme Court to consider question whether party offering to abide by oath of opposite party cannot resile from agreement if latter willing and ready to perform his part thereof. (b) Oaths Act (X of 1873)

Ss. 9, 10 & 12-Question whether a party offering to abide by a statement on oath can resile from such offer-To be decided on general principles of law and depends on facts and circumstances of each case. He further placed reliance on PLD 1999 Lahore 328 "Anayat Ali v. Muhammad Yaqoob". The relevant citations of the ibid are reproduced as under:- (a) Oaths Act (X of 1873)

S. 8

Special Oath

Question as to whether the party which offered or accepted to abide by oath of the opposite-party could later retract from the agreement depends upon circumstances of each case. (b) Oaths Act (X of 1873)

Ss. 8, 9, 10, 11 & 12

Concept

Oath of a person who does not inspire confidence is of no consequence and once it is established that person taking oath is not a man of no credibility, his oath even if recorded is of no consequence and no heed can be paid to same in any solemn proceedings.

9. Indeed where an oath has been administered and that too on the Holy Quran by the present Petitioner Ameen ul Haq in view of the assertions that he is owner of the suit property despite the fact that he has been declared as and his father Kachkol Ahmad has given his statement on 11.09.2013 that the suit land belong to his deceased son Muhammad Saeed and on his death it is devolved upon his Legal Heirs. Yet when an application was moved before the trial Court on the same date when the oath was administered that in view of the report of Mufti Rahat Said that by that time for reason that he was cautioned by the attorney that his uncle has been declared even the conditions laid for taking of oath have not been fulfilled. While even the learned trial Court was conscious of the fact that the attorney on behalf of the Legal Heirs had submitted an application on the same date when the oath was administered had earlier resiled but this aspect was never taken notice of the learned trial Court and it was rightly appreciated by the learned appellate Court as there was interest of the minors and women-folk is at stake, therefore, there was no specific permission either on behalf of the women-folk or minors through Guardian-ad-litem to administer oath to Ameen Ul Haq which has wrongly been administered on the Holy Quran. Thus, the learned appellate Court accepted the appeal by setting aside the order of the learned Civil Court leaving the parties to adduce their respective evidence and on merits verdict of the learned Civil Court shall follow.

10. The observation of the learned Appellate Court are in the right direction which findings are to endure and sustain, thereby this Civil Revision has got no force which is hereby dismissed. ZC/262/P Revision dismissed.