P L D 1954 Lahore 290 (PLP)

RAHMAN, J.‑This appeal arises out of a suit brought by Dilawar Khan against Tikka Khan and others for possession of certain lands Bostan Khan, who died on the 28th April 1951, was the last male owner of this property. He had made a gift of 7 kanals of land in favour of his sister's son, Tikka Khan, the first defendant, by means of a registered deed, dated the 7th March 1951. The second defendant is Khurshesab Khan, a brother, of the plaintiff, and the third defendant is Mst. Jafia widow of Bostan Khan. The plaintiff's claim was that the gift was made under undue influence and during marx‑ul‑maut and, therefore, was not binding on the donor's heirs. He con sequently asked for possession of his 7/16th share as one of the heirs of the donor in the gifted land. The suit was re sisted by defendant No. 1 alone, who asserted that the gift in his favour was valid. After a part of the evidence had been recorded in the case, the plaintiff made a statement in the trial Court to the effect that if defendant No. 1 succeeded in establishing that Bostan Khan deceased had left behind 10 ghumaons of land besides the land in suit, then the plaintiff's claim may be dismissed. In case of default of such proof, the suit, according to his statement, was to be decreed and the parties left to bear their own costs in that event. Tikka Khan defendant accepted this offer by a statement recorded the same day and so did Khurshesab Khan, the second defendant. The case was then adjourned to enable the parties to lead evidence on the question involved. There were one or two adjourn ments. On the 27th of March 1952, Tikka Khan put in a petition in the trial Court resiling from the agreement and praying that it may be ignored and the case proceeded with on the merits. The plaintiff demurred to this course and asserted that the agreement was binding on the parties. The trial Court upheld the plaintiff's plea and after going into evidence held that the land left by Bostan Khan besides that in suit was less than 10 ghumaons and in consequence, decreed the plaintiff's suit, leaving the parties to bear their own costs. On appeal the learned Senior Civil Judge, Rawalpindi, reversed the decision of the trial Court holding that the agreement should have been ignored and the suit decided on the merits. The case was, therefore, remanded for decision, to the trial Court under Order 41 Rule 23 C. P. C. Against this order, S. A. O. No. 3 of 1953 has been filed in this Court. The principal question for determination in the case is whether an agreement of the nature arrived at between the parties to the suit, could be resiled from, before it was carried into effect or not. There seems to be a conflict of judicial authority on this point. The view that once an offer made by one party has been accepted by the other, the offer cannot be revoked, was affirmed in B Siya Ram Dass v. Jagannath (A I R 1933 All. 463 S. B.) Khawaj Din v. Nur (65 Ind. Cases 900 D. B.), Mst. Azima Begum v. Muhammad Bakhsh (63 Punjab Record 1881 (Civil) D. B.), Allah Rakha v. Punnun (A I R 1941 Lah. 173 S. B.), and Shek Khan Mahmud v. Shek Syedali (A I R 1931 Cal. 549 D. B.). The contrary opinion was expressed in Shah Nawax v. Ghulam Muhammad (A I R 1946 Lah. 78 S. B.), Raja of Venkatagiri v. Chinta Reddy, (I L R 37 Mad. 408 D. B.). Atherman Kuthi v. Chandroth Noideen Kuthy (A I R 1919 Mad. 615.), Moyan v. Pathukutti (I L R 31 Mad. 1), Tumman Singh v. Sheodarshan Singh (122 Ind. Cases 186 D. B.) and Bishambar v. Radha Kishunji (133 Ind. Cases 29 D. B.). Certain other authorities were cited before me which are distinguish able inasmuch as in those cases, the party concerned attempted to resile from the agreement after it had been carried into effect. They are not pertinent to the point at issue in this case. If the question bad been res integra, I would have been inclined to accept the view that till the agreement was actually carried out, any party could resile from it and the suit would then have to be decided on its merits. The opposite view, however, is supported by a Division Bench authority of this Court as well as a Division Bench judgment of the Punjab Chief Court. I am inclined to doubt the soundness of the proposition enunciated therein and consider that in view of the importance of the question involved, a larger Bench should examine the case and make an authoritative pronouncement. Subject to orders of my Lord the Chief justice, therefore, I refer this case to a larger Bench. JUDGMENT RAHMAN J.‑This order will dispose of S. A. O. No. 3 of 1953 which has arisen out of a suit for possession of a 7/16th share in certain land, instituted by Dilawar Khan against Tikka Khan and others. Tikka Khan resisted the suit on the ground that the last male owner of the property in suit, Bostan Khan who died on the 28th April 1951, had gifted the suit land in his favour, by a registered deed, dated the 7th March 1951. The plaintiff pleaded that this gift was vitiated by undue influence exercised on the donor and also because it was made during mars‑ul‑maut. The plaintiff claimed to be one of the heirs of the deceased donor Khursheshab Khan, a brother of the plaintiff, and list. Jaiflan Bi, widow of Bostan Khan, were also impleaded as defendants in the suit, but they did not contest the plaintiff's claim. The parties' pleadings led to certain issues being framed, on which some evidence was led in the trial Court. The plaintiff then made a statement before the trial judge offering to have the suit dismissed if defendant No. 1 succeeded in proving that Bostan Khan deceased bad left 10 ghumaons of land, over and above the gifted land, on his death. He proposed that if defendant No. 1 failed to adduce the necessary proof in this behalf, the suit should be decreed and the parties left to‑ bear their own costs in that case. Tikka Khan accepted this offer by a statement recorded by the trial judge the same day: The second defendant, Khursheshab Khan, also agreed to that course. The trial Judge adjourned the case for evidence on the agreed issue. One or two adjourn ments followed and on the 27th March 1952, Tikka Khan put in a petition resiling from the agreement and praying that the case be proceeded with on the merits. The plaintiff objected that the defendant was not entitled to go back upon the con tract. The plaintiff's `plea was upheld by the trial Court. After going into the evidence, the finding was given that the land left by Bostan Khan beside that in suit, was less than 10 ghumaons and in consequence the plaintiff's suit was decreed, the parties being left to bear their own costs. An appeal was taken against that decision to the learned Senior Civil Judge, Rawalpindi. The lower appellate Court held that the agreement should have been ignored and the suit decided on the merits. The case was, therefore, remanded for re‑decision under Order 41 rule 23 of the Code of Civil Procedure. This second appeal has been preferred by the plaintiff against the order of remand passed by the learned Senior Civil Judge. The appeal came up for hearing before me sitting in Single Bench. As there was a conflict of authority on the point whether an agreement of the nature arrived at in the present case, could be resiled from or not, I referred the case to a larger Bench. It has now come up for hearing before this Bench. The current of decisions on the subject, to which we have been referred, is neither uniform nor, if I may say so with due deference, very illuminating. In the following group of cases under the Oaths Act, it was laid down that an offer to be bound by an oath, if accepted by the opposite side, becomes binding and cannot be resiled from, though in some cases it was added that the Court has a discretion to allow revocation on adequate cause being shown :‑ (1) Mst. Anima Begum v. Muhammad Bakhsh. (63 P R 1881. (145) (D. B.)) (2) Ram Narain Singh v. Babu Singh. (I L R 18 All. 1896 (46) (D. B.)) (3) Abaji v. Bala & others. (I L R 22 Born. (1898) 281 (D. B.)) (4) Thovi Ammal v. Subbaroya Mudali. (I L R 22 Mad. (1899) 234 (D. B.)) (5) Khawaj Din v. Mst. Nur and others. (65 I C 700 (D. B.)) (6) Kesho Ram v. Peare Lal and others, (A I R 1923 All. 443 (2) (D. B.)) ( (7) Ram Bhaj v. Duni Chand. (A I R 1926 Lah. 240 (1).) (8) Shek Khan Mahmud v. Shek Syedali and others. (A I R 1931 Cal. 549 (D. B.)) (9) Siya Ram Das v. Jagannath and others. (A I R 1933 All. 463 (S. B.)) (10) Valli Ammal and another v. Arunachala Noopanar and others. (A I R 1938 Mad. 385 (D. B.)) (11) Allah Rakha v. Punnun. (A I R 1941 Lah. 173 (S. B).) In case No. 6 in the above list, the doctrine of estoppel was also invoked to fortify the argument that the challenger could not be permitted to resile from the agreement to abide by the oath of the other party. Case No. 7 appears to be distinguishable on the ground that the revocation was sought to be made by the party concerned after the oath had been taken. In case No. 5, the learned judges themselves drew a distinction between an ordinary contract and that arrived at under the provisions of the Oaths Act. The contention raised by learned counsel in that case was that wherever there was such an offer, it could be subsequently withdrawn before it is accepted. According to the learned judges, that was true in an ordinary case of contract but did not apply to an offer made under the Oaths Act. These rulings appear to proceed on the basis of the special provisions of the Oaths Act and as such no principle of universal application can be derived from them. In Khobhari Seh v. Jhuman Shah and others (A I R 1917 Cal. 327.) a Division Bench of the Calcutta High Court expressed the view that an application presented to Court by the parties to a suit, request ing it to dispose of the suit in a particular manner on ascertain ment of a simple fact, should be dealt with under Order 23 rule 3 of the Code of Civil Procedure, and the Court should not allow either party to resile from the agreement if the result is against him. Such an agreement, it was pointed out, is not in the nature of a reference to arbitration. The case is distinguishable from the present one as the agreement had been carried into effect, before the attempted revocation. The agreement in question was that a pleader be sent to the defendants' house so that he might see whether the defendants did the work of casting and whether bellows or signs of a furnace were to be found in the said house. In case the observations of the Pleader confirmed these matters, it was agreed that a decree should be given in favour of the plaintiffs and in case the said things were not found to exist in the house, the suit was to be dismissed. In Himanchal Singh v. Jatwar Singh and others (A I R 1924 All. 570 (D. B.).) it was settled between the parties that a particular Vakil shall hear their whole affair and the parties bound themselves to accept any statement that the Vakil might make before the Court. Sulaiman and Kanhaiya Lal JJ., who decided the case, held that the statement made by the Vakil in Court, in pursuance of the agreement, constituted an admission of the parties within the meaning of section 20 of the Evidence Act, as it was made by their nominee and they regarded the said admission as conclusive. It followed, therefore, that none of the parties was entitled to resile from the statement made by their nominee. It was remarked that an agreement of that character would be an adjustment of the suit and consequently binding on the parties. This case too is distinguishable as the objection to the agree ment was only taken after the nominee bad made his statement in the trial Court. Ram Sunder Misra v. Jai Karan Singh and others (A I R 1925 All. 271 (D. B.).) is the next decision cited. In that case, the defendant had made an offer that if a certain person ate food nerved by the plaintiff, the suit may be decreed. The offer was acted upon and it was held in consequence that the defendant could not resile from his promise and that the suit must be decreed. It was, however, pointed out that Order 23, rule 3, C. P. C. had nothing to do with such agreements. The case again is not really in point as the agreement had been fully carried out, before it was objected to. Our attention was also directed to S. E. Makudam Muhammad v. T. V. Muhammad Sheik Abdul Qadir and another (A I R 1936 Mad. 856.), a Single Bench judgment of the Madras High Court, in which it was laid down that where party invites the Court to adopt a procedure which is not contemplated by the Civil Procedure Code and is in fact a procedure extra cursum curiae, he cannot after wards turn round and say that the Court is to be blamed for adopting the very procedure which he invited the Court to follow. The learned Judge was of the opinion that the doctrine of estoppel would apply, .to him. The Judgment of the Court in such a case would be, according to ‑the learned judge, in the nature of an arbitrator's award and as a general rule, no appeal would lie from it. Moreover, it was held that where both parties agree to a particular procedure being followed, the decree passed in the suit muat be deemed to be a consent decree and as such it would not be open to either party to appeal from it. Reliance was placed by the learned judge in that connection on Burgess v. Morton (1) This case does not appear to afford much assistance in deciding the point in issue in the present case. It only relates to the question whether a right of appeal exists after the parties have adopted a special procedure, by consent, in the trial Court, leading up to a judgment. We next come to the three rulings on which the learned Senior" Civil judge has relied in this case. They are reported as (1896 A. C. 136), Tumman Singh and others v. Sheodarshan Singh (A I R 1930 All. 162 (D. B).), Bishumbhar v. Radha Kishunji and (A I R 1931 All. 557 (D. B).) Shah Nawaz v. Ghulam Muhammad and another (A I R 1946 Lah. 78 (S. B.).) In the first of these cases, before the Court of first instance, the parties agreed to abide by the statement of one C. Next day, the defendant made an appli cation alleging that C was related to the plaintiff and, there fore, the defendant did not want to be bound by his statement. After holding an inquiry, the trial judge negatived the plea and passed a decree in the terms suggested by C. The defendant appealed and the lower appellate Court reversed the decision of the trial Court and directed that the case should be tried on the merits. In second appeal, the case of Himanchal Singh v. Jatwar Singh (A I R 1924 All. 570.) was referred to and distinguished on the ground that exception to the statement of the referee had been taken in that case only after that statement had been recorded. The learned judges. Mukerji and King JJ, repelled the contention that the agreement was covered by Order 23, rule 3 C. P. C. In the second case, the parties had agreed that the suit be decided in accordance with the statement which a specified pleader may make in Court, without oath. Mukerji and Bennet, JJ. held that such an agreement did not amount to an adjust ment but only to an agreement on a procedure which might eventuate in an adjustment and further that it was open to a party to resile from such an agreement, before the statement bad been: made by the referee and action taken by the Court on it. Section 20 of the Evidence Act was also referred to by the learned judges and it was pointed out that the statement made by the nominee was not an admission of facts, by which the plaintiff could be bound and that, in any case, an admission under the Evidence Act would not be conclusive. On the special facts they did not regard the reference to the nominee as one to an arbitrator under Schedule II of the Code of Civil Procedure. Nor did they think that the procedure under the Oaths Act was applicable. It was recognised that the agreement between the parties was not invalid under section 23 of the Contract Act and the breach of such an‑ agreement might entitle a party to sue for damages but the learned judges were quite clear that it was not an agreement which must necessarily be specifically enforced. In the third case, Achhru Ram J. was dealing with a suit in which the parties had agreed that if the defendant took oath on the Holy Quran in the village mosque, concerning a certain point of fact, the plaintiff's suit should be dismissed and that if he failed to take the proposed oath, the suit should be decreed, the parties being left to bear their own costs in either case. The trial Court appointed a local Pleader as Commissioner for administering the specified oath. Before the date fixed for the administration of the oath, however, the defendant, who had made the offer originally, presented an application to the trial Court, resiling from the agreement on the plea that the members of his brotherhood took strong exception to his taking the oath by the Holy Quran in the mosque. The trial Court had a local enquiry made and came to the conclusion that there was no substance in the plea raised by the defendant and that there was no such general opposition to the taking of the oath as was alleged by him. On his refusal to take the oath, therefore, the trial Court decreed 'the plaintiff's suit. On appeal, the lower appellate Court set aside the decree passed by the trial Court and remanded the case for re‑decision on the merits. The plaintiff came up in second appeal to this Court. It was objected on behalf of the respondents that the appeal was not competent as the order passed by the trial Court was in fact and in substance, one recording an adjustment, This plea was repelled as unsound. It was observed by the learned judge that it would amount to an adjustment only if the agreement or the compromise was capable of being embodied in a decree forthwith and that an agreement providing for a decree one way or the other being passed, in future, on the happening or not happening of a certain contingency, could not in law be regarded as an adjustment. It was further pointed out that the Oaths Act did not provide for any decree being passed against a party who having once agreed to take the proposed oath, subse quently resiled from the agreement. The learned judge relied on Raja of Venkatagiri v. Chinta Reddy (I L R 37 Mad. 408.), from which he quoted the following pertinent extract‑ "The ordinary rule i that, when the Court is seized of‑ a case, it has jurisdiction to decide it in the manner prescribed by law, and that parties have no right to interfere with its authority to do so. There are, no doubt, well understood exceptions to this rule, but where the exceptions do not apply, the rule must prevail. Notwithstanding the pendency of a suit, the parties may settle their disputes as they like by any lawful arrangement, and the Court is then bound to give effect to the settlement. Again, they may ask the Court to refer the question in dispute to an arbitrator, in which case though the decision of the cause is primarily transferred to another tribunal, the Court still retains some control over the proceedings. The parties may also enter into agreement making the oath of one of them conclusive evidence of all or any of the facts in issue between them. This again is subject to the control of the Court ......... Our attention is not drawn to any rule or principle which would compel a party to adhere to any agreement by him that the suit may be decided in a manner different from that prescribed by law." Mr. Said Akbar relied on section 5 of the Contract Act which provides that a proposal may be revoked at any time before the, communication of its acceptance is complete as against the proposer, but not afterwards. It may be conceded that an agreement of the kind which we have to consider in the present case, based on mutual promises which form the consideration of each other, is a "contract" within the meaning of section 10 of the Contract Act. The consideration or the object of such a contract is clearly not unlawful and it is not declared to be expressly void, by any provision of the Contract Act. We do not think there is any substance in the contention raised by Mr. Wirasat Husain, on behalf of the respondent that this was an agreement void for uncertainty or that it came within the mischief of section 30 of the Contract Act as an agreement by way of wager. The agree ment was sufficiently precise and definite and clearly no element of wager was involved. The decision of the case was not made to depend on the issue of a future uncertain event. But that, in my opinion, does not end the matter. The question still remains whether a contract of this kind must necessarily be enforced specifically if one of the parties wishes to resile from it. The answer to this question should, I think, depend on the facts and circumstances of each case. Specific performance is an equitable relief which a party cannot claim as a matter of right. The Court has a discretion in the matter and if in the particular circumstances of a case, the conscience of the Court is not satisfied that it is necessary to hold the parties to such an agreement, it will not direct its performance. That seems to me to be the correct principle to be applied to such cases. I am in respectful agreement with the view taken in some of the reported cases that such an agreement does not constitute an adjustment of the suit within the meaning of Order 23, rule 3 of the Code of Civil Procedure. Such an agreement Per se does not amount to an adjustment but if it is carried out, it may eventually lead to an) adjustment. In the present case, I do not feel that there is any compelling necessity for the Court to bold the parties to the agreement which they undoubtedly arrived at but which before it was carried into effect, the respondent repudiated. The fact whether the deceased Bostan Khan left more or less than 10 ghumaons of land besides the land in suit, is an adventitious circumstance which has no vital relation to the merits of the parties pleadings in the suit. The appellant clearly did not change his position to his detriment in pursuance to the agreement and, therefore the principle of estoppel was also not attracted to the case. I have, therefore, reached the conclusion that the lower appellate Court took the correct view in allowing the appeal and remanding the case for decision on the merit. I would, consequently dismiss the appeal, but, in view of the difficult nature of the question involved, would leave the parties to bear their own costs in this Court. SHABIR AHMAD, J.‑I agree with my learned brother that this appeal should be dismissed, but will add a few words of my own. I am of the view that the learned trial judge could not have accepted the request of the parties to decide the case one way or the other if Bostan Khan deceased was proved or not proved to have left 10 ghumaons of land over and above the gifted land. The suit raised the question whether or not Bostan Khan had made a valid gift of the land in suit to Tikka Khan and the question whether on his death Bostan Khan left less than 10 ghumaons or more than 10 ghumaons of land was entirely irrelevant. Under section 5 of the Evidence Act, evidence may be given in any suit or proceedings of the existence or non‑existence of every fact in issue and of such other facts as are declared relevant in the succeeding sections of the Act and of no others. This section disentitled the parties to lead evidence about the extent of the land left by Bostan Khan because that question was not in issue in the suit and was not relevant by virtue of any section of the Evidence Act. It is true that the course of the trial of a suit may not conform to the procedure laid down by law at the desire of the parties, but the course prescribed by law can be deviated from only in a manner allowed by law. One of such manners is provided by the Oaths Act and another is the appointment of an arbitrator to decide the matter on which the parties are not agreed. The changing of the normal course of the trial by doing things mentioned in the Oaths Act and by the appointment of an arbi trator is recognised by law and, therefore, if a case is dealt with in either of those two manners, the course of the trial cannot be said to have been changed illegally. The same, however, cannot be said in the present case. It was not a case of taking an oath under section 9 of the Oaths Act of 1873 nor was it a case of appointment of an arbitrator, and the questions in dispute between the parties could not be shelved and the decision on them left to follow the decision on another question which was entirely irrelevant for the purposes of the suit. A. H. Appeal rejected