1995 PLP 428 (CLC)

‑‑‑‑S. 115‑‑‑Exercise of revisional jurisdiction being discretionary was liable to be regulated largely by the conduct of parties‑‑‑Plaintiff having approbated and reprobated was not a person eligible for having the aid of discretionary exercise of jurisdiction extended in his favour. Syed Riaz‑ul‑Hassan Gillani for Petitioner. Mian Munawar Hussain for Respondents. Date of hearing: 8th November, 1992. Petitioner brought a suit in May, 1976 for specific performance of an oral agreement allegedly made with him in the month of May, 1974 for sale of a house situated in Ichhra, Lahore. Jalal Din and Ahmad Saoud happened to be arrayed as the two defendants with the statement that they respectively are the owner and occupant of the house. The suit was contested by both the defendants by denying the averments of the plaintiff in their independent written‑statements filed in the month of November, 1976. Necessary issues were framed. By middle of the year 1980 some evidence of the parties had been recorded and the petitioner offered on 2‑8‑1980 to have the suit decided on the basis of special oath on Holy Our'an being taken by the defendant Jalal Din to the effect that agreement for sale of house was not made with him ana he did not even receive any earnest money and a separate oath on Holy Qur'an being taken by the other defendants Ahmad Saoud or his attorney to the effect that agreement was not made through him and sale‑price was not paid, whereupon‑he will withdraw the suit and deliver back the possession of the house within a month. Further, that whatever expenses the defendant may state on such an oath to have been incurred by them on the house in dispute he will accept and pay the same. Defendant No. 1 and special attorney of defendant No, 2 accepted the. plaintiff's offer on the same day through their separately recorded statements and took the proposed oaths regarding non‑existence of any agreement for sale of the house and non‑receipt of any consideration thereabout from the plaintiff who was stated to be a defaulter of rent for a period of 4‑1/2 years.

2. As regards the expenses allegedly incurred on the repairs of the house, they undertook to accept the statement on a similar oath being made by the plaintiff. Thereafter, the plaintiff made a statement to the effect that he has incurred seven to eight thousand rupees on repairs in addition to payment of telephone charges but he is desirous of being paid Rs.7,000 regarding the expenses. In the light of the statement so made, learned trial Judge dismissed the suit on 2‑12‑1980.

3. Plaintiff took an appeal there against to the District Court at Lahore. It came up for hearing before a learned Additional District Judge who considered that parties had lawfully consented to have the suit decided on the basis of special oaths which were duly administered and there was no interference liable to be made in the thus‑made disposal of the suit. He also remarked in the end of his order dated 2‑11‑1982, "even otherwise the appeal is not tenable and is accordingly dismissed, leaving the parties to bear their own costs".

4. The plaintiff has invoked revisional jurisdiction of this Court. In support thereof learned counsel for the petitioner has tried to argue that since the parties had got recorded their evidence in the trial Court, therefore, there was no occasion left for the suit being decided on the basis of special oath which otherwise happens to be against the spirit of Injunctions of Islam. I do not find any substance in this contention which does not even lie in the mouth of the petitioner who had not only initiated' the matter of oath ' in the trial Court but had also reiterated it on a side‑issue of expenses raised therein. Since a litigant cannot be allowed to capitalize upon his misdeeds, therefore, even if view sought to be propounded before me as regards validity of oath in Islam be correct, plaintiff‑ petitioner cannot take any benefit therefrom. He cannot be allowed to reprobate that which he had himself approbated and muchless can he be allowed to do so with the aid of discretionary jurisdiction which revisional power undoubtedly is.

5. It is noteworthy that in the memo of his appeal below filed on 21‑12‑1980 such was not the case of the petitioner and he desired to be relieved of the implications of his offer for the suit being decided on the basis of evidence existing on the record. Be the above as it may, I do not see how and why the petitioner may now, after a period of more than a decade elapsed eversince, be permitted to wriggle out of his own undertaking after it had been duly accepted by the defendants and more particularly in this proceeding of revision wherein exercise of jurisdiction is only discretionary, liable to be regulated largely by the conduct of a litigant. Petitioner is certainly not a person eligible for having the aid of discretionary exercise of jurisdiction extended in his favour.

6. In result of the foregoing, I do not find any force in this revision petition which is, therefore, dismissed but without any order as to costs. A.A./I‑119/L Revision dismissed.