P L D 1996 Lahore 354 (PLP)

I I I . il I Brief facts giving rise to the present revision petition are that the petitioner filed a suit on 8‑3‑1986 for declaration to the effect that he was owner in possession of land measuring 6 Kanals and 16 Marlas bearing Khasra Nos. 14/2‑13, 15/0‑16, 16/1‑4 and 17/2‑3 situated in Village Noor Pur Bailee, Tehsil Jhelum; that the entries made in the revenue papers in favour of the respondent were illegal, against facts, void and ineffective qua the petitioner's rights and for consequential relief restraining the respondent from transferring the disputed land to any other person The respondent resisted the suit and filed his written statement in the Court on 17‑3‑1986. On the said date, the Court heard arguments on the application for temporary injunction. On the same date, the petitioner filed an application before the trial Court under Article 163 of the Qanun‑e‑Shahadat, 1984 for deciding the suit on oath of the parties. Tire respondent was personally present in the Court and offered that in case the petitioner made a statement on the Holy Qur'an in proof of his suit then the suit may be decreed in his favour. The petitioner made a statement on oath on the Holy Qur'an whereupon the trial Court decreed the suit in his favour vide judgment and decree dated 17‑3‑1986

2. The respondent filed an appeal against the judgment and decree' of the trial Court under section 96 of the C.P.C. and also filed an application under section 12(2), C.P.C. challenging the judgment and decree of the trial Court on the grounds of fraud and misrepresentation. The said application was dismissed by the trial Court vide order dated 29‑6‑1986 keeping in view institution of appeal by the respondent. The appeal was allowed by the learned Additional District Judge vide his order dated 23-11-1986 whereby the case was remanded to the trial Court for decision of the suit on merits in accordance with the law.

3. The petitioner's learned counsel contends that the respondents appeal was incompetent for the twin reasons that he had filed an application under section 12(2), C.P.C. and that the judgment and decree of tire trial Court w& result of consent of the parties; that the case was rightly decided by the trial Court on special oath on the Hoiy Qur'ar, and not under the provisions of Article 163 of the Qanun‑e‑Shahada!, 1984; that the correctness of that proceeding regarding decision of the suit on merits not be assailed in view of the provisions of section I I of the Oaths Act and that tire respondent, had taken contradictory stands inasmuch as in the application filed under section 12(2), C.P.C. he had admitted that the suit was to be decided on special oath but in the memorandum of appeal he urged that he had refused to take special oath. On the other hand, learned counsel for the respondent urged that the Court was bound to administer oath under the provisions of Article 163 of the Qanun‑e‑Shahadat, 1984 as prayed for by the petitioner in his application; that the precise form of oath was neither agreed to between the parties nor suggested by the Court; that there was no specific acceptance of the petitioner's offer on the part of the respondent; that the procedure prescribed under the Oaths Act was not followed; that the special oath taken by the petitioner did not relate to all the claims and assertions made in the plaint; that a terse statement made on oath relating to a small part of the averments made in the plaint could not be made basis for decreeing the suit; that notwithstanding the institution of the application under section 12(2), C.P.C., the appeal filed by the respondent under section 96 of the C.P.C. was competent; that at any rate, the appeal was competent against the order dated 17‑3‑1986 by virtue of the provisions of Order 43(m) read with Order 23, Rule 3, C.P.C. (reliance was placed on the judgments in the cases of Jarnail Singh v. Mt. Narain Kaur and others AIR 1938 Lahore 766 and Umiashankar Naranji v. Shivshankar Prabhaskankar AIR 1944 Bombay 239; that‑ the respondent had filed an appeal against order dated 29‑6‑1986 whereby the trial Court had rejected his application filed under section 12(2), C.P.C. which was rejected vide order dated 23‑11‑1986 as having become infructuous.

4. The argument raised by the petitioner's learned counsel that the only remedy available to the respondent was to file an application under section 12(2) of the C.P.C. on the ground of fraud and misrepresentation and that the appeal filed by him was incompetent, has not impressed me. True, it was open to the respondent to resort to the provisions of section 12(2) of the C.P.C. on the ground of fraud, misrepresentation and want of jurisdiction but he was not precluded from resorting the statutory remedy of an appeal under section 96 of the C.P.C. merely because he had also filed an application under section 12(2), C.P.C. Under the provisions of section 12(2) of the C.P.C. the validity of a judgment/decree cannot be challenged through another suit on the ground of fraud, misrepresentation and want of jurisdiction. However, the right of appeal provided under section 96 of the C.P.C. remains intact and cannot be refused even if the grounds of fraud, misrepresentation and want of jurisdiction are raised therein. In the present case, the respondent had resorted to both the remedies, one under section 12(2) of the C.P.C. and the other under section 96 of the C.P.C. but the learned Civil Judge held vide his order dated 29‑6‑1985 that the application filed under section 12(2) of the C.P.C. was incompetent and rejected it accordingly.

5. The judgment and decree dated 17‑3‑1986 passed by the trial Court cannot be termed as a consent decree because it was to be passed after fulfilment of an important condition relating to "proof" of the petitioner's suit through hi s 91 " statement on oath on the Holy Qur'an. The appellate Court or for that matter this Court could competently examine whether the requisite condition was 13 fulfilled or not. Hence the appeal filed by the respondent was competent and the bar provided under subsection (3) of section 96 of the C. P.C. relating to consent decrees was not attracted in the present case. ,

6. During the pendency of the suit, the petitioner had himself made an application under Article 163 of the Qanun‑e‑Shahadat, 1984 for proving his case on the basis of his special oath. He had also prayed that the respondent may be called upon to rebut the petitioner's oath through his own statement on oath. However, the trial Court did not strictly proceed in accordance with the provisions of Article 163 of the Order. It appears that the respondent offered that if the petitioner made a statement on oath on the Holy Qur'an in "proof" of his suit then the case may be decreed in his favour. The precise statement made by the respondent reads as under:‑‑ The petitioner made the following statement on oath on the Holy Qur'an:‑‑ In the light of the above statement, the trial Court decreed the suit in favour of the present petitioner. No doubt the formal acceptance of the respondent's offer on the part of the petitioner is not there but his acceptance can be gathered from the fact that he did make a statement on oath on the Holy Qur'an. The fact that the matter was sought to be decided on special oath can also be gathered from the contents of para .2 of the respondent's application filed under section 12(2) of the C.P.C. In the grounds of appeal the respondent urged that after appearance of the plaintiff/petitioner before the learned Civil Judge some conversation had taken place regarding oath but he stated that he was not prepared to take oath. Presumably, for that reason the Court did not proceed to 'decide the matter in accordance with the provisions of Article 163 of the Order. Instead, the respondent made another offer regarding the petitioner's oath on the Holy Qur'an, referred to above, and the Court recorded the petitioner's statement which has been reproduced above.

7. The facts narrated above show that the only proof wanted by the respondent was the petitioner's own statement on oath on the Holy Qur'an regarding the claims made by him in the suit. His statement had to form the sole basis for deciding the suit and must be strictly construed. In order to satisfy the condition, the petitioner was bound to make a statement on oath on the Holy Qur'an in respect of all the material averments embodied in paras. I to 4 of the plaint. However, the petitioner made a terse statement reproduced above relating to a small part of the averments contained in the plaint. He did not say a single word regarding the pre‑emption suit filed by one Muhammad Younis, his enmity against father of the respondent and the factum of pressure exerted on him by the respondent to file the suit so that the claim made by Muhammad Younis be defeated. He also did not say that after the decree was passed in favour of the respondent he had to transfer the same in favour of the petitioner and that in view of apprehension of another suit from Muhammad Younis the land was not transferred in his name and that the entries man in the revenue papers in the respondent's name were void and ineffective, Therefore, the trial ‑Court was not justified to decree the suit in favour of the petitioner on the basis of brief statement made by him which covered only a part of the claims made in the plaint.

8. The argument raised by the respondent's learned counsel that the appeal was competent against the order of the trial Court for deciding, the suit on the basis of special oath of the petitioner has no force. The application contemplated under Order 43, Rule 1(m) of the C.P.C. relates to an order under rule 3 of Order 23 of the C.P.C. recording or refusing to record an agreement, compromise or satisfaction. The said provision of law pertains to withdrawal and adjustment of suits or abandonment of part of a claim, The respondent's agreement that after the petitioner's statement on oath on the Holy Qur'an in proof of his suit, the suit be decreed in his favour, could not be termed as withdrawal of the claim or adjustment of dispute within the meaning of Rule 3, Order XXIII of the C.P.C. I am fortified in my view by judgments in the cases of Jalal Din v. Chiragh Din and 2 others PLD 1972 Karachi 622 and Shah Nawaz v. Ghularn Muhammad and another AIR (33) 1946 Lahore

78. In the present case the plaintiff/petitioner never came forward to withdraw his suit or abandon any part of his claim. Instead, he pressed his claim and agreed to have decision of the suit by furnishing evidence through his statement on oath on the Holy Qur'an. Hence the provisions of Order 23 and 43, Rule I(m) of the C.P.C. were not attracted in the case. For the same reason the judgments cited by the respondent's learned counsel regarding competence of the appeal under Order 43, Rule I(m) of the C.P.C. are not relevant and need not be discussed.

9. For the foregoing discussion, I find no merit in this revision petition which is dismissed leaving the parties to bear their own costs, A.A./R‑3/L Revision dismissed.