2010 PLP 596 (CLC)

SAIF-UR-REHMAN, J.

This civil revision has been directed against judgment and decree dated 14-11-2001 passed by the learned Additional District Judge, Pindi Bhattian, whereby judgment and decree dated 15-3-2001 passed by the learned Civil Judge, Pindi Bhattian, decreeing suit filed by the petitioner, was set aside and the case was remanded to the learned Trial Court for its decision afresh in accordance with law.

2. Briefly the facts alleged by the petitioner are that he filed suit for declaration and grant of permanent injunction which was resisted by the respondent. Issues were framed and evidence of the parties was recorded.

3. The case was at the stage of final arguments when respondent made an offer that if statement was made by Nazir P.W.3 on special oath that his statement made as P.W.3 was correct and that petitioner had paid Rs.65,000 to respondent in the bank and had promised to pay the remaining Rs.43531 on or before the aforesaid time as sale price, suit of the petitioner may be decreed. Nazir P.W.3 made special oath accordingly and the suit was decreed. However, said decree was set aside by the learned Appellate Court during appeal on the ground that before recording of statement of Nazir P.W.3 respondent had withdrawn his offer. It was contended that the impugned order was illegal, void and ineffective and against the case-law reported in Elahi Bakhsh and another v. Mst. Bhiranwan 1994 SCMR 2246, Muhammad Mansha and 7 others v. Abdul Sattar and 4 others 1995 SCMR 795 and Nasrullah Jan v. Rastabaz Khan 1996 SCMR 108.

4. Learned counsel for the respondent on the other hand, submitted that admittedly the respondent had withdrawn his offer before the statement aforesaid Nazir, therefore, the agreement had not yet become final and the learned trial Court could allow respondent to resile from his offer. Reliance was placed on Muhammad Ali v. Major Muhammad Aslam and others PLD 1990 SC 841.

5. I have considered the respective contentions of the parties in the light of above referred case-law and the facts on record.

6. There is no controversy between the parties that respondent had made offer. His statement was recorded by the learned Trial Court. The offer was accepted by the petitioner vide his statement recorded on the same day. This offer and acceptance took place in presence of the learned counsel for the parties. No further detail is required in the light of case-law relied upon by the petitioner and it is held the status of Nazir P.W.3 was that of Referee. I have carefully gone through PLD 1990 SC 841 (supra). Learned counsel for the respondent perhaps was misled by the head note of the said authority, which reads as under:

"(c) .... Where a statement or note was 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 would be legal and regular as the Act has not prescribed any particular form or procedure for recording the offer and acceptance made by the parties in that connection." Case-law developed with regard to controversy in question was fully discussed in this authority. In this case, offer and acceptance of the parties were noted down in the order sheet on the basis of which case was decided and challenged by the appellant, the appeal was dismissed by their Lordships in the honourable apex Court finally, holding that:

" ..All the three lower Courts having found that the appellant could not be permitted to resile his offer, which findings do not suffer from any legal infirmity, no interference is called for in this case."

7. Suffice it to say that offer and acceptance noted in the very order sheet without recording statements of the parties separately were held to be enforceable in the aforesaid case and the appellant was not allowed to resile.

8. Instant case stands on better footing wherein the statements of offer and acceptance were separately recorded by the learned Trial Court. The respondent had failed to plead any circumstances which may show that offer made by him was the result of any one of his emotional behavior or that offer and acceptance gave rise to any void agreement. He could not mention any one of such grounds in his application as well.

9. Therefore, it is held that the learned Additional District Judge failed to appreciate the facts and law involved in the controversy. The impugned order is held to be unwarranted by law, which is hereby set aside. The judgment and decree passed by the learned Trial Court is restored. This civil revision is disposed of with no order as to costs. H.B.T./I-92/L Revision accepted.