1999 PLP 2151 (MLD)

Date of hearing: 11th May 1998. The brief facts out of which the present appeal arises are that the appellants/plaintiffs filed a suit for declaration; that they were owners in possession of the agricultural land in dispute. The contents of the plaint revealed that the respondents had sold out the land in dispute under an oral transaction to the appellants/plaintiffs against an amount of Rs.8,

000. Subsequently Mutation No.4,600 dated 31-12-1957 was attested and the possession of the land in question had also been delivered to the appellants/plaintiffs under the sale all,, the entries in the Revenue Record remained unchanged. The respondents filed written statement, controverted the allegation levelled in the plaint. The learned trial Court (Civil Judge Taunsa Shari, decreed the suit vide its judgment and decree dated 24-5-1993. The respondents filed an appeal before the learned Additional District Judge, Taunsa Sharif, on the ground that none of the witnesses produced by the parties in their evidence since 13-3-1990 to 29-4-1993 was examined upon the Oath prescribed by the Lahore High Court in the year 1987. The learned Additional District Judge, accepted the appeal vide his judgment and decree dated 12-2-1996 on the basis of law laid down by this Court in Muhammad Tufail's case (1991 MLD 48); hence the present appeal. The pre-admission notice was issued to the respondents vide order dated 3-4-1996, now the appeal is admitted for regular hearing and the notice is accepted by the learned counsel for the respondents, therefore, this appeal is decided as admitted case.

2. The learned counsel for the respondents raised preliminary objection; that present appeal against the judgment and decree of learned Additional District Judge dated 12-2-1996 is not maintainable by virtue of Order 43, Rule 1, Clause (U) of C.P.C. He relied upon Mst. Thewari's case (AIR 1922 Lahore 178).

3. The learned counsel for the appellants contended that t17:` Court has ample power to convert the appeal into revision. He further urged that revision petition is competent against the judgment and decree of the 1st Appellate Court. He further contended on merits; that judgment of the learned Additional District Judge is not in accordance with the law declared by the Superior Court and he relied upon 1992 CLC 2165; 1992 SCMR 408 and 1992 CLC 1331. He further urged that evidence of both the parties were not recorded in accordance with Oath prescribed by the Lahore High Court and it is merely an irregularity which can be cured under section 13 of the Oaths Act. He further stated that the respondent did not raise objection at the time of recording the evidence, therefore, before the 1st Appellate Court, the respondents estopped to raise the same on the well-known principle of estoppel and waiver.

4. The learned counsel for the respondents contended that judgment of Ist Appellate Court is in accordance with law declared by the Hon'ble Superior Courts and relied upon (1988 PCr. LJ 2347); (1991 MLD 48) and (1992 SCMR 408).

5. I have given my anxious consideration to the contentions of the learned counsel for the parties and perused the record myself. I intend to dispose of preliminary objection first; that F.A.O. is not maintainable against the judgment and decree of the learned Additional District Judge, on the basis of the law declared by Full Bench of this Court in (AIR 1922 Lah. 178). It is settled principle of law that controversy between the parties must be decided on merits in stead of technicalities. I am fortified by the judgment of Hon'ble Supreme Court PLD 1989 SC

532. It is also settled principle of law to convert an incompetent appeal into a civil revision for its hearing on merits. I am fortified by the judgment of this Court in Ch. Shujaat Hussain's case (1994 MLD 2079); hence this appeal is converted into revision. The law point has already been settled by the Hon'ble Supreme Court atter discussing all the case law in Shamshir Ali's case (PLD 1997 SC 559) and the relevant observation is as follows: - "No authority of this Court was cited by the learned counsel appearing in the case. However, the view taken by the Federal Shariat Court in the case of Zeb-ul-Haram (PLD 1991 FSC 1) appears to be correct and is supported by sound reasons and ample authorities. Such view has been followed by the Supreme Appellate Court, which was presided over by a learned Judge of this Court. Approving such view to he correct and relying on section 13 of the Oaths Act, we are of the view that although in a judicial proceeding evidence of witness should received in accordance with section 6 of the Oaths Act, as amended, yet evidence recorded on solemn affirmation cannot be brushed aside simply on the ground that it was not taken on oath. " The judgment of the learned 1st Appellate Court is not in accordance with tire aforesaid principle laid down by the Hon'ble Supreme Court in Shamshir 1ii's case as cited above, therefore, is not sustainable in the eyes of law. The judgment and the decree of the Additional District Judge dated 12-2-1996 is aside and the case is remanded to the learned the controversy between the parties on merits.

6. In view of what has been discussed above, this revision petition is accepted in the aforesaid terms with no order as to costs. Q.M.H./M.A.K./A-6/L Revision accepted.