P L D 1999 Lahore 328 (PLP)

Both these Civil Revisions Nos.1178 of 1986 and 1179 of 1986 are having common features and, therefore, are being disposed of together by this judgment.

2. These civil revisions were reflected in the supplementary cause list for today for purposes of hearing. Mr. Taffazal Rizvi, Advocate is present for the petitioner. Mian Jamil Akhtar, Advocate is present on behalf of learned counsel for the respondent and has no objection if the petitions were decided on merits today. 3.The Civil Revision No.1178 of 1986 is filed against the judgment dated 22-4-1986 passed by the learned Additional District Judge, Gujranwala on the basis of a Special Oath, said to have been recorded before the learned Additional District Judge, Gujranwala.

4. This was a suit for recovery of Rs.20,

000. It was said that this amount was received by the defendant as a loan and who had executed a Pronote Exh.P.l on 2nd of July, 1979. When he refused to return this money this suit was filed. The learned trial Court framed the following issues:- (1)Whether the suit is false and fictitious? (2)Whether the plaintiff has no cause of action? (3)Whether the defendant executed pronote dated 2-7-1979 in favour of the plaintiff?' (4)If the issue above is proved affirmative, whether the plaintiff is entitled to the recovery of Rs.20,000 for the defendant? (5)Relief. 5.The learned trial Court decided Issue No.3 in favour of the plaintiff and came to the conclusion that the pronote Exh.P-1 was executed by the defendant. Issue No.4 was decided against the plaintiff and in favour of the defendant. The learned trial Court was of the view that although the pronote had been executed, the money in question did not pass hands. Issue No.2 was decided in favour of the plaintiff. According to the learned trial Court, as issue No. l was not pressed, he did not record and finding on this and, thus, the suit. of the. plaintiff was dismissed. 6.The facts in respect of Civil Revision No.1179 of 1986 are similar and the findings as well.

7. The matter came up in first appeal before Mr. Maqbool Hussain Bhatti, Additional District Judge, Gujranwala. It appears from his order dated 22-4-1986 that an offer was made for the disposal of the appeal on the basis of a Special Oath regarding the dispute which was to be taken before the learned Appellate Court by one Wali Dad, a resident of the village of the plaintiff. It further appears that initially the respondent agreed to the proposal but later he came forward, with an application which is placed at page 11 of the file stating that he no longer had confidence on Wali Dad after having found out that the latter was not a man to be believed.

8. The contents of para. 3 of the said application dated 22-4-1986 which was submitted before the disposal of the appeal by the learned trial Court are reproduced below:-- 9.The learned Additional District Judge instead of deciding the case on merits insisted on recording of the statement of Wali Dad on Oath and rejected his application on the ground that he wanted to break the agreement. Wali Dad then came forward .and recorded his statement on Special Oath which is reproduced below:--

10. The question for determination in these revision petitions is whether the party which offered or accepted to abide by Oath of the opposite-party could later retract from the agreement. The answer to this question depends upon the circumstances of each case. In this connection no section of. the Oaths Act. 1873 provides any definite answer.

11. In this case although an agreement was initially trade for recording of the statement on Special Oath of a third person Wali Dad and the decision of the case had to be based on such statement but the defendant Anayat Ali (now petitioner) made an application before recording of the statement. Alleging that Wall Dad could not be trusted and that. therefore, his case be disposed of on merits rather than the Special Oath of Wali Dad. The learned first Appellate Court rejected the application, without assigning any cogent reason. It failed to appreciate that the applicant was assailing the character of Wali Dad about whom he had discovered facts subsequent to the agreement. He had initially accepted the taking of the Special Oath by the brother of the appellant when the name of Wali Dad was instead proposed by the appellant. The learned trial Court did not investigate the matter for discovering the truth. 12.1. An oath is a form of attestation by which a person signifies that he is bound in conscience to perform an act faithfully and truthfully. (Vaughn v. State) 146 Tax. Cr.R. 586, 177 SW.2d 59,

60. According to Black's Law Dictionary, Sixth Edition the Oath is:-- "An affirmation of truth of a statement, which renders one wilfully asserting untrue statement punishable for perjury. An outward pledge by the person taking it that his attestation or promise is made under an immediate sense of responsibility of God. A solemn appeal to the Supreme. Being in attestation of the truth of some statement. An external pledge or asseveration, made in verification of statements made, or to be made, coupled with an appeal to a sacred or venerated object, in evidence of the serious and reverent state of mind of the party, or with an invocation to a supreme being to witness the words of? the party, and to visit him with punishment if they be false. In its broadest sense, the term is used to include all forms of attestation by which a party signifies that he is bound in conscience to perform the act faithfully and truly. In a more restricted sense, it excludes all those forms of attestation or promise which are not accompanied by an imprecation. " 12.2. An oath was used from early times for securing the fulfilment of any special contract or undertaking by introducing the fear of Divine Wrath, on failure to perform the obligation which the taker of the oath entered into. This use of the oath so as to bind the conscience seems to have been adopted by the Medes and Persians, the ancient Egyptians and Assyrians, by the Greeks, the Romans, the Hindus and the Muslims. 12.3. Oath is, thus, a method of- reminding a witness strongly of the Divine punishment somewhere in store for false swearing and, thus, of putting him a frame of mind calculated to speak only the truth as he saw it. Much reliance is placed on the taking of oaths as a practical security by Politicians and Moralists, so much so, that Lycurgus, the Orator said to the Athentians, that "an oath is the bond that keeps the state together. 12.4. The Holy Qur'an has also given a lot of importance to Oath. In Sura Baqara, Verses 224 and 225 it was said: "and make not Allah's (name) an excuse In your. oaths against Doing good, or acting rightly, Or making peace Between persons; For Allah is one Who heareth and knoweth All things. (224-translation by Abdullha Yousuf Ali). Allah will not Call you to account For thoughtlessness In your oaths, But for the intention In your hearts; And He is Oft-Forging, Most forbearing. (225-translation by Abdullah Yousuf Ali). In Sura Nahl, Verse 94, it was said: And take not your oaths, The practise deception between Yourselves, With the result that some one's foot May slip after it was Firmly planted; and ye may Have to taste the evil (consequences) Of having hindered (men) From the Path of Allah, And a mighty Wrath Descend on you (translation by Abdullah Yousuf Ali).. In Sura Tahrim, Verse 2, it was said: Allah has already ordained For you (O men),. The dissolution of your oaths (In some cases): and Allah Is your Protector, and He. Is Full of Knowledge And Wisdom. (translation by Abdullah Yousuf Ali). In Sura Qalam, Veree 10, it was said: Heed not the type Of despicable man, Ready with oaths. (translation by Abdullah Yousuf Ali).

13. Oaths have a sanctity and they provide sanctity to acts of persons. When there is doubt that a person who is to be administered oath for resolution of a dispute is not to be trusted on true doubts about him we have to follow Verse 10 of Sura Qalam, referred to above. .

14. In this case the respondent had succeeded before the trial Court. An offer was made to him for the resolution of the dispute on Oath of Wali Dad. He initially agreed with the proposal but before Wali Dad was administered Oath, on the following date, the petitioner having investigated about Wali Dad nourished a doubt about him and gave it in writing to the Court that he would not believe the Oath of such a witness. This was not a case where the petitioner was making such a statement after the Oath had been administered to the said Wali Dad because in that case mala fide could have been attributed to him for attempting to wriggle out of the agreement of resolving the dispute on the basis of the Special Oath. The agreement under the circumstances became voidable at the option of the petitioner.

16. A similar matter came up before the Supreme Court in the case of Mst. Asifa Sultana v. Honest Traders, Lahore and another (PLD 1970 SC 331) and it was laid that such a question is to be decided on general principles of law. The relevant. portion of the judgment is reproduced in extenso: "In support of the appeal Mr. Hidayat Ali Talib learned counsel for the appellant has cited a number of .decisions in support of his contention that a party after offering to abide by the Oath of the opposite-party cannot resile from the agreement if the latter is willing to perform his part of the agreement. He has referred to the cases-of Allah Rakha v. Punnun AIR 1941 Lah. 173, S. Siya Ram Dass v. Jagannath and others AIR 1933 All. 463, Saheb Ram v. Ram Newaz and others AIR 1952 All. 882 Dalawar Khan v. Tikka Khan and others PLD 1954 Lah. 290 and Muhammad Akbar and another v. Muhammad Aslam and another PLD 1970 SC

241. The burden of all these decisions is that where a party offers to be bound by the statement of any of the opposite-party under section 9, Oaths Act, he cannot resile from such an offer after the other party has agreed to make such oath unless there is sufficient cause to the satisfaction of the Court for allowing the offerer to resile. It has been further held in these cases that the discretion vested in the Court, under section 10 has to be exercised according to the justice of the case. It cannot be exercised or refused to be exercised at the mere whim or caprice of a party or even of the Court. In this connection. it will be noticed that sections 9 to 12 of the Oaths Act deal with that part of the Special Oath by which a party is agreed to he bound." Section 9 is as follows: "Section

9. If any party to any judicial proceeding offers to be bound by any such oath or solemn affirmation as -is mentioned in section 8, if such oath or affirmation is made by the other party to, or by any witness in, such proceedings, the Court may, if it thinks fit, ask such party or witness, or cause him to be asked, whether or not he will make the oath or affirmation: Provided that no party or witness shall be compelled to attend personally a "Court solely for the purpose of answering such question." Section 10 of the Oaths Act only deals with the question how such Special Oath is to be administered. It is as under: "Section

10. If such party or witness agrees to make such oath or affirmation, the Court may proceed to administer it, or, if it is of such a nature that it may be more conveniently made out of Court, the Court may issue a commission to any person to administer it, and authorise him to take the evidence of the person to be sworn or affirmed and return it to the Court. " Section 11 deals with the effect of such oath and read as under:- Section

11. The evidence so given shall, as against the person who offered to be bound as aforesaid, the conclusive proof of the matter stated. Section

12. If the party or witness refused to make the oath or solemn affirmation referred to in section 8, he shall not be compelled to make it, but the Court shall record, as party of the proceedings, the nature of the oath or affirmation proposed the facts that he was asked whether he would make it, and that he refused it, together with any reason. which he may assign for his refusal. " It will, thus, be noticed that there is no section in the Oaths Act dealing with the question whether a party making an offer to abide by a statement on oath, or special oath, by another party or witness can resile from such an offer. This question, therefore, must be decided on general principles of law. This aspect of the question was recently considered by a Bench of this Court in the case of Muhammad Akbar and another v. Muhammad Aslam and another. It was held in that case as under: "This correct position, therefore, is that the agreement dated the 3rd November, 1963, that the matters in dispute may be decided in accordance with the statement of Abdur Razzak was in the nature of a contract and the trial Court could in its discretion decline to hold the appellants by it. The exercise of discretion will depend on the facts and circumstances of each case.' This principle is applicable to the facts of the present case. The offer to abide by the oath of the opposite-party and its acceptance by the other party was in the nature of an agreement and the question whether the party who offered can resile from it depends on the facts and the circumstances of each case. It will, thus, be noticed that the view taken by the High Court is in accordance with the view taken by this Court in the above mentioned decision. The learned Single Judge of the High Court also held that the question whether the contract should be performed or not depends on the discretion of the Court. The learned counsel for the appellant has contended that the learned trial Court did not exercise the discretion vested in it properly. We have gone through the facts of the case and are of the opinion that in the circumstances of the present case, the learned trial Court was perfectly justified in exercising its discretion in favour of the respondents. There is a clear finding against the appellant that her attorney Malik Fazal Hussain had bragged and adopted blasphemous attitude in respect of the Oath. In view of the findings, the learned trial Court was perfectly justified in holding that it was in the interest of justice not to force the respondent to abide by his agreement to get the dispute decide by the oath of the Attorney of the appellant. In this view of the matter the High Court was justified is not interfering in its revisional jurisdiction. We. therefore, find no force in this appeal.The appeal is dismissed with costs.

17. Mahmood, J., in Queen-Empress v. Marti and another (ILR 10 All. 207) said: "either there is a use in an oath or solemn affirmation or there is no such use, and an oath or affirmation which is not binding upon the conscience of native witnesses, whether Hindu or Mahomedan, is absolutely useless".

18. The Oath of a person who does not inspire confidence is of no consequence and once it is established that he is a man of no credibility, his oath even if recorded is of no consequence and no heed can be paid to in any solemn proceedings. 19. 1 am, therefore, of the opinion that the learned trial Court committed a material irregularity by insisting on the recording of the Special Oath of Wali Dad and by refusing to decide this case on merits. ?

20. When consent to an agreement is caused by misrepresentation and deceit, the contract becomes voidable at the option of a person who was misled or deceited. The misrepresentation on a material point which induces a party to enter into contract is a good ground for setting aside the contract. (Abram S.S. Co. v. Westville S.S. Co. (1928 AC 773).

21. I, therefore, set aside the impugned order and remand this case to'the learned District Judge, Gujranwala for decision of the appeal on merits. Since this is an old case I wish to direct the learned District Judge to decide this case himself and by July, 1999. M.B.A./A-80/L??????????? Order accordingly.