P L D 1986 Lahore 137 (PLP)

This constitutional petition calls in question order of the learned District Judge, Leiah dated 7‑10‑1985 dismissing the petitioner's revision petition filed against the order of the learned trial Judge dated 23‑5‑1985 whereby the suit was adjourned for the evidence despite the oath offered by the petitioner.

2. Facts, briefly stated, are that the petitioner brought a suit for declaration that he was owner in possession of the suit land having purchased it from respondent No. 3 through her general attorney. In the alternative, he prayed for a decree for specific performance of the agreement. The suit was contested by respondent No.

3. Case was fixed for evidence when on 29‑1‑1985, petitioner moved an application under Article 163 of the Qanun‑e‑Shahadat, 1984 offering to take oath in support of his claim. Respondent No. 3 filed reply and resisted the petitioner's prayer for disposal of the case on oath. Nevertheless, petitioner took oath in support of his claim on 25‑4‑1985 and his statement was accordingly recorded on that date. Learned trial Court then summoned respondent No. 3 for oath on 21‑5‑1985. On the last mentioned date, counsel for the parties appeared but as the case had been transferred to the Court of Senior Civil Judge, they were directed to appear before the transferee Court on 23‑5‑1985. Counsel for respondent No. 3 stated on 23‑5 1985 that her client did not accept the oath taken by the peti tioner. In view of this statement, learned trial Court adjourned the case to 24‑7‑1985 for the petitioner's evidence.

3. Petitioner felt aggrieved with the aforementioned order of the learned trial Court adjourning the case for evidence and challenged it before the learned District Judge by means of a revision petition. Learned District Judge took the view that respondent No. 3 being a woman duly represented by the counsel, it was not necessary for her to appear in person to deny the petitioner's claim on oath and the statement of her counsel was sufficient It was further held that the relevant provision was silent about the consequences in case the defendant did not take oath to deny the claim on oath." It was observed that the Court while appreciating the evidence of the parties might consider the oath of the petitioner. Taking this view of the matter, learned District Judge dis missed the petitioner's revision petition in limine vide order dated 7‑10-1985.

4. Learned counsel appearing to support of this petition has sub mitted that under Article 163 of Qanun‑e‑Shahadat, 1984, it was obligatory for respondent No. 3 to have appeared in person to deny the petitioner's claim on oath and the statement made by her counsel 'was not proper compliance with the relevant provisions. Learned counsel has argued that although relevant provision has not laid down any penalty in case of defendant's failure to appear and deny the plaintiff's claim on oath, petitioner's suit was liable to be decreed to view of the provisions of Order X, rule 4(2), C. P. C.

5. Before proceeding to examine the contentions of the learned counsel, reference may be usefully made to the provisions relied upon by him. Article 163 of Qanun‑e‑Shahadat reads as follows :‑ "Acceptance or denial of claim 'on oath.‑(1) When the plaintiff takes oath in support of his claim, the Court shall, on the application of the plaintiff, call upon the defendant to deny the claim on oath. (2) The Court may pass such orders as to costs and other matters as it may deem fit. (3) Nothing in this Article applies to laws relating to the Enforcement of Hudood or other criminal cases." Order X, rule 4, C. P. C. is in the following terms :‑ "(4) Consequence of refusal or inability of pleader to answer.‑(1) Where the pleader of any. party who appears by a pleader or and such person accompanying a pleader as is referred to in rule 2 refuses or is unable to answer any material question relating to the suit which the Court is of opinion that the party whom he represents ought to answer, and is likely to be able to answer if interrogated in person, the Court may postpone the hearing of the suit to a future day and direct that such party shall appear in person on such day. (2) If such party fails without lawful excuse to appear in person on the day so appointed, the Court may pronounce judgment against him or make such order in relation to the suit as it thinks fit,"

6. Article 163 of Qanun‑e‑Shahadat only provides that when the plaintiff takes oath in support of his claim, Court shall call upon the defendant to deny the claim on oath and that, too, on the application made by the plaintiff. Now in the instant case, there is nothing on the record to show that the plaintiff‑petitioner ever made such an application. Be that as it may, learned trial Court did call upon the defendant deny the plaintiff's claim on oath but she refused to accept the petitioner oath and consequently did not take oath to deny the petitioner's claim. Question which arises for consideration is as to what is the effect of the defendant‑respondents' failure to deny on oath the claim of the petitioner made on oath. Should the claim of the petitioner have been decreed straightaway without any further proof as contended by the learned counsel ? Quite clearly such a result is not countenanced by the language of Article 163, Even sub‑clause (2) of the Article only provides that the Court may pass such. orders as it may think fit regarding the costs and other matters. If the legislature had intended that in case of defendant's failure to deny the plaintiff's claim on oath, the plaintiff's suit is to be decreed or some other penal consequence is to follow, it could have made its intention manifest by making a clear provision to that effect. In the absence of any specific provision laying down the penal consequence of the defendants non‑appearance to deny the claim on oath, learned trial Court acted rightly in proceeding to adjourn the case for the peti tioner's evidence.

7. As regards the submission of the learned counsel based on the provisions of Order X, rule 4, C. P. C., suffice it to observe that the said provision even it' applicable to a situation like the one under consideration, leaves the matter in the discretion pf the Court. It may or may not pronounce the judgment against a party failing to appear in person without lawful excuse. This view is supported by the plain language of (2) of rule 4 referred to above.

8. In the aforesaid view of the matter; learned trial Court in pro ceeding to hear the case on evidence cannot be said to have acted without lawful authority. Similarly, the order of the learned District Judge passed in his revisional jurisdiction under section 115 , C. P. C. declining C to interfere with the discretionary order of the trial Court does not suffer from any illegality or jurisdictional defect. Needless to point our that the view taken by the learned District Judge that it shall be open to the Court to consider the oath of the petitioner while appreciating the evidence brought on the record appears to be correct. For the foregoing reasons, the impugned orders do not call for any interference in writ jurisdiction. This petition having no merit is dismissed in limine. A. A. Petition dismissed.