P L D 1990 Supreme Court 841 (PLP)

RUSTAM S. SIDHWA, J: ‑‑This is an appeal by Muhammad Ali appellant against the judgment of the Lahore High Court dated 29‑11‑1987 dismissing his writ petition.

2. The brief facts of the case are that on 7‑7‑1980 Muhammad Ali, appellant, brought a suit against Major Muhammad Aslam, respondent No. 1, for specific performance of agreement to sell dated 7‑6‑1979 regarding agricultural land measuring 80 kanals 15 marlas situated in Mahal Kasur. On 10‑7‑1983 the Civil Court framed issues.

3. When the appellant on 22‑3‑1987 had got his statement in examination-?in‑chief recorded in the said suit as his own witness (as PW 8), and was being cross‑examined on 5‑4‑1987 by the counsel for respondent No. 1, the appellant made an offer to respondent No. 1, which he accepted, whereafter the appellant tried to novate the same, without success, regarding which the learned Civil Judge, respondent No. 2, recorded the following note and order:‑‑ This note‑cum‑order was got signed by the learned Judge by the parties and their counsel. After cross‑examination was completed the case was fixed for 12‑4‑1987 for arguments on the matter regarding the offer and oath to be taken by the respondent.

4. Before arguments could be heard on the matter, the appellant on 16‑5‑1987 submitted before respondent No. 2 an application for the cancellation of the proceedings relating to oath and the decision of the suit on the basis of documents, pleadings and evidence of the parties. The application was dismissed by respondent No. 2 vide his order dated 9‑6‑1987.

5. The appellant challenged the above‑mentioned orders dated 5‑4‑1987 and 9‑6‑1987 of respondent No. 2 in revision petition, which too was dismissed by a learned Additional District Judge, respondent No. 3, on 28‑7‑1987.

6. The appellant then invoked the Constitutional jurisdiction of the High Court in Writ Petition No. 3875 of 1987, which was dismissed by the High Court on 29‑11‑1987. Hence this appeal.

7. Leave was granted in this case to consider whether the circumstances of this case were such that the appellant was not bound by his first offer and A considering that the suit was still pending, any of the observations made in the impugned judgment would prejudice his case.

8. On behalf of the appellant it is submitted that the learned Civil Judge, Kasur, respondent No. 2, in recording the note and order dated 5‑4‑1987, had not recorded any separate statement of the appellant on oath regarding his offer nor recorded any separate statement of the respondent on oath regarding acceptance of the said offer and, therefore, when the appellant had replaced the earlier offer for the decision of the case by another offer, which was not accepted by respondent No. 1, no concluded contract could be stated to have taken place. It is submitted that the order dated 5‑4‑1987 is only a note and since no legal binding contract had come into effect between the parties for the decision of the case under the Oaths Act, the order and note dated 5‑4‑1987 did not create any rights or liabilities and deserved to be ignored. It is further submitted that assuming that the note and order dated 5‑4‑1987 are treated as creating a legal and binding contract between the parties, then since the appellant's offer for the decision of the case on the oath of respondent No. 1 did not relate to the subject‑matter of 'he suit or the issues framed therein, the same was irrelevant and, therefore, could be legally ignored. Relying upon Mst. Asifa Sultana v. Honest Traders, Lahore (P L D 1970 SC 331) it is submitted that the question whether a party who has made an offer to abide by a statement on oath by another party can be allowed to resile from it depends upon the facts and circumstances of each case and since in the: instant case the appellant immediately at the very moment he had submitted his first offer; novated the same, which was not accepted by respondent No. 1, the appellant should have been permitted to resile from his first offer. It is next submitted that in the appellant's application dated 16‑5‑1987 circumstances were shown which should have compelled. the learned Civil Judge to permit the appellant to resile from his first offer. For the proposition that for the application of section 11 of the Oaths Act it is necessary that the statement given by a person should relate to a matter in controversy between the parties, Rati Ram v. Hardewa (A I R 1927 All. 676) and Ghinno Ram v. Kanhya (A I R 1957 Him Pra. 35) have been cited.

9. On behalf of respondent No. 1 it is submitted that the appellant having made a clear offer to respondent No. 1 with regard to the disposal of the suit, which offer was accepted by the said respondent, the appellant cannot now be permitted to resile from the said offer. In this connection it is submitted that where a party undertakes to be bound by evidence given on special oath by the opposite party, which offer is accepted, one of the contracting parties cannot back out of such an agreement, unless such contract is void or frustrated and where none of such eventualities has occurred, the trial Court is justified in refusing to permit a party to resile from his offer. In this connection Atiqullah v. Kafayatullah (1981 S C M R 162) and Salim Ahmad v. Khushi Muhammad (1974 S C M R 224) have been referred.

10. We have given our anxious consideration to the arguments addressed by the learned counsel for the appellant and respondent No. 1 and have perused the record. In Muhammad Akbar's case (P L D 1970 SC 241) this Court held that where the parties to the suit had agreed that the Court could decide the matters in dispute between the parties in accordance with the statement of a third person, the agreement was in the nature of a contract and the trial Court could in its discretion decline to hold one of the parties by it. It was held that the exercise of discretion would depend upon the facts and circumstances of each case. Since this was not a case under the Oaths Act, 1873, it was not until Mst. Asifa Sultana's case (supra) that this question was decided. In Mst. Asifa Sultana's case this Court held that where an offer was made by a party to abide by the oath of the opposite party, which offer was accepted by the opposite party, the same constituted an agreement and the question whether the party who offered to abide by the oath could resile from it, depended on the facts and circumstances of each case. In that case after the offer and acceptance had been made, one of the parties filed an application resiling from the agreement on the allegation that outside the Court the opposite party had bragged that he had won the case and had stated that by taking the oath on the Holy Our'an, his legs would not break and that he did not mind taking an oath for serving his own purpose. The application was supported by the affidavit of the applicant. In view of this situation, the learned Single Judge held that it was within his discretion to permit a party to resile from such an agreement and that it was a fit case for exercising his discretion in favour of the applicant, which he did. The matter was taken up to the High Court in revision, which petition was dismissed on the ground that the finding not being perverse or passed on no evidence, did not call for any interference. The Supreme Court also did not interfere, as it held that the trial Court was perfectly justified in holding that it was in the interest of justice not to force the party making the offer to abide by his agreement to get the dispute decided on oath. The appeal was, therefore, dismissed. This rule has been followed in Saleem Ahmad's case (supra) and in Atiqullah's case (supra). In Saleem Ahmad's case this Court observed that the High Court, whilst rejecting the petitioner's permission to resile from his offer, had inter alia held that the agreement between the parties was in the nature of contract and one of tile contracting parties could not be allowed to back out of it unless the contract was void or had been frustrated and since none of these eventualities had occurred in the case, it did not entitle the petitioner to the relief. Basically, therefore, the principle still is that there is no section in the Oaths Act, 1873, dealing with the question whether a party who has made an offer to be bound by the statement on oath, or special oath, by the opposite party or witness, can resile from such an q offer and the matter being one left to be decided on general principles, the question whether the party who has made an offer can resile from it, depends upon the facts and circumstances of each case.

11. In cases such as the present, where it is not possible. to lay down guiding principles as to what facts or circumstances in a given case would induce a judge to permit a party to resile from either the offer or the acceptance, it is necessary for the Court to guard itself and the parties against snap decisions taken by the parties in this connection. More often that not, during examination of a party or a witness, or during a heated discussion or argument, a party in the excitement of the moment may be led to make a snap decision in this respect. He may in the heat of passion make such an offer, or accept such a one, which otherwise in a state of cool deliberation he would not do. The Court should be careful to see that such offers and acceptances are not recorded with the same snap speed with which they are made, for such offers and acceptances would not be founded in piety and grace and would not be made at the highest level of truth. For no sooner a person makes an offer to another to make a statement on the Holy Qur'an or his Holy Book, whichever it may be, with regard to any matter or fact, the effect of which will be to bind him in a particular manner, for good or for worse, he does so on the assumption that the person who will accept it is conscious of his trust and whilst making the statement on the Holy Book shall place himself figuratively before his Maker and his Holy Prophet and state the truth, on pain of divine wrath. The Court should, therefore, be somewhat circumspect in this matter and refrain from permitting parties to enter into such agreements, which otherwise do not appear to have been made by them in some reasonable frame of mind, or which appear to be the result of indecent haste, or which otherwise, from the apparent conduct of any of the parties, appear to be such as would make a mockery of the oath. The need for recording separate statements of the parties in respect of the offer and acceptance made in such cases deserves to be over‑emphasised, for such a procedure would give parties some short time to think over the matter and extricate themselves from hasty decisions, before appending their signatures to their statements. We do not wish to go down on the record as suggesting that this procedure must invariably be observed, for there is no such legal compulsion, not do we want to suggest that certain safeguards suggested here should be treated as rules of prudence to be observed in such cases, because sections 9 to 11 of the Oaths Act do not admit of such intrusions, but we would say that all this may be treated as a note of caution, for a Court is as much bound to ensure the solemnity of these proceedings, as the parties are bound to respect them.

12. This now brings us to the main question whether the appellant in the instant case can be allowed to resile from his offer. The note‑cum‑order dated 5‑4‑1987 clearly shows that the appellant made a statement that if respondent No‑1 made a statement on oath that he had not appeared before the Tehsildar on 7‑6‑1979, then the appellant would withdraw his claim in suit, upon which respondent No. 1, who was present, was asked whether he would make such an oath, to which he replied in the affirmative. The note‑cum‑order then records that at that stage the appellant was not prepared to stand by his arrangement and said that if his counsel or that of respondent No. 1 made such an oath, then the suit be decided accordingly. The note‑cum‑order further records that at that stage both the counsel for the parties desired that on the basis of the statements of the parties, the suit should be decided, but as the learned counsel were poles apart regarding the interpretation of the statements, arguments on the said matter was adjourned to 12‑4‑1987, but the cross‑examination of the appellant was permitted to continue. Since a clear offer had been made by the appellant to respondent No. 1 that if he made on oath on the Holy Qur'an, denying his appearance before the Tehsildar on 7‑6‑1979, then the appellant would withdraw his claim in suit, which offer was put by the Court to respondent No. 1, who agreed to make such an oath, a legal and binding agreement between the parties came into effect. What is the effect of the sudden change of mind then exhibited by the appellant in turning round and informing the Court that he was not prepared to stand by that arrangement, but would be prepared to accept the oath of his own counsel or that of the respondent No. 1 is not clearly discernible. It is not the appellant's case that he made a snap decision due to the pressure of cross‑examination or that he was cajoled into making this offer by deceit or vile practised on him by the respondent's case. In his own application he merely stated that he did not make the initial offer, as recorded, as he had completed all proceedings relating to documents, evidence, etc. This assertion was not found to be true by all the three Courts below. Before the High Court an objection was raised that the offer and acceptance was recorded in the shape of a note, which could not be acted upon, as the trial Court had failed to record separate statements of the appellant and respondent No. 1 showing the precise wording of their offer and acceptance and that that, therefore, the offer and acceptance had no validity. As already stated by us, this should have been done, as it was a salutary procedure. However, the High Court rightly rejected this plea on the ground that the Oaths Act, 1873, did not? prescribed any particular form or procedure for recording the offer and acceptance connection and that where a statement or note was E recorded which clearly showed that one of the parties had made a clear offer to be bound by the oath on any particular matter by the other, which had been clearly accepted by the other, the proceedings were legal and regular. A second objection was raised before the High Court that the offer did not pertain to the matter in dispute in suit and, therefore, the oath made by respondent No. 1 was not conclusive proof of the "matter stated" in terms of section 11 of the Oaths Act. The High Court rejected this objection as the main basis of the suit was the agreement to sell, allegedly executed by the respondent, which the said respondent tried to dispute. The words "be conclusive proof of the matter stated" in section 11 of the Oaths Act, 1873, obviously mean that the evidence on oath so F given shall be conclusive proof in the suit in which such evidence is recorded of the matter in respect of which the parties have agreed to be bound. The two rulings cited by the learned counsel for the appellant also point in that direction. All the three lower Courts having found that the appellant could not be permitted to resile from his offer, which findings do not suffer from ally legal infirmity, no interference is called for in this case.

13. For the foregoing reasons, there being no merit in this appeal, the same is dismissed, with no order as to costs. M.BA./M‑1384/S? ????????????????????????????????????????? Appeal dismissed.