1983 PLP 595 (CLC)

‑‑ S. 115, Oaths Act (X of 1878), Ss. 3, 4 & 8 and West Pakistan Urban Rent Restriction Ordinance (VI of 1959), S. 15‑‑Estoppel Appellant offering before Additional District Judge that if guardian of minor respondent took oath on Holy Quran that property in dispute was sold to respondents with no right of re‑purchase left with appellant then his appeal before Additional District Judge be dismissed and his R. S. A. pending before High Court will also be withdrawn by him‑Offer, held, not only extend to his appeal before appellate authority but also to R. S. A. pending before High Court and appellant estopped from saying otherwise.‑[ Estoppel]. Ghinoo Ram v. Kanhya A I R 1957 Him. Pra. 35 rel. Sh. Abdul Rehman for Appellant. Ch. Muhammad Farooq for Respondents. Dates of bearing : l Ith and 12th October, 1980. An appeal (R. S. A. 360 of 1974) filed by Abdul Hameed was pending decision in this Court when on 8th July, 1980, an application (C. M. 4839/C‑8) was moved on behalf of the respondents under Order XXIII, Rule 3, Code of Civil Procedure praying that the second appeal referred to above be dismissed as withdrawn by the appellant.

2. Property No. 355 being a house situated in Jinnah Colony, Faisalabad was said to be sold by the appellant Abdul Hameed to the respondents and Mian Rahmat Ali (now deceased) by a sale‑deed registered on 11th March, 1959. The appellant denied to have parted with the property and tiled a suit for declaration that he was the owner in possession thereof with a prayer for cancellation of the registered sale deed. It was however averred that there was an oral stipulation that the appellant would always reserve his right to return the sale price and get his property back. The suit was initially decreed by the trial Court but on appeal the learned Additional District Judge dismissed it by setting aside the decree of the trial Court. Abdul Hameed, therefore filed the second appeal (R. S. A. 350‑74), and the same was pending. The respondent, being the owners‑landlords of the house in dispute on the other hand, at one stage initiated ejectment proceedings before the Rent Controller who by his order dated 2nd March, 1977, directed the appellant to be ejected. Against that order the appellant Abdul Hameed filed an appeal before the learned Additional District Judge, during the pendency of which he has alleged to have made a statement on 28th May, 1979, to offer that if Rehmat Ali (now deceased) took an oath on the Holy Qur'an that the property in dispute was sold for a consideration of Rs. 40,000,00 with no stipulation entitling the appellant to purchase it back, his appeal then be dismissed. He also offered that in that event his appeal before the High Court (R. S. A. No. 360‑74) would also be withdrawn by him but in that case he would require two months time to vacate the property.

3. It was further stated in application that the offer was accepted by the respondents the same day and under the orders of the learned Additional District Judge. Rehmat Ali appeared in Court on 4tla June, 1979, and made a statement to the effect that the property in dispute was purchased by him for a consideration of Rs. 40,000 and that there was no condition attached to the sale entitling Abdul Hameed to purchase the same on repayment. Acting on the special oath the learned District Judge proceeded to pass an order on 4th June, 1979, directing that the appeal stood dismissed and also observed that the appeal before the High Court would also be withdrawn by the appellant. In the light of what has been stated above the respondents have by this application prayed that the present appeal (R. S. A. No. 360 of 1974) be dismissed as withdrawn.

4. The appellant on the other band by his petition (C. M. 6075/C 1980) did not seriously deny having made a statement but contended that respondents 1 to 4 were incapable of accepting the offer as they were minor at the time, and that the alleged acceptanc4 was without an express permission of the Court. It was also contended that 'the appellant revoked the proposal before the said Rehmat Ali had entered the witness box, and that his statement on special oath was obtained by fraud. It was, therefore, prayed that the said special oath be not acted upon and the appeal be decided on merits instead of recording th compromise.

5. The agreement entered into by the appellant on the one hand and by the respondents on the other is said to be against law and based on fraud. It has, however, not been made out what fraud was practiced on the appellant. The offer was made by the appellant him self without any instigation' or ill‑will on the part of the respondents. It was accepted by the respondents the same day. Rahmat Ali who was to make a statement on oath was summoned for a day after six days. Nothing has been brought on record showing how the appellant was misled except by an incident that Abdul Latif one of the respon dents had on 4th June, 1979 lodged an F.I.R. complaining that all what Rahmat Ali would be saying was wrong. This by itself does not mean that the appellant bad retracted from his previous offer or he was in any manner misled. In this connection section 23 of the Contract Act (IX of 1872) was referred to which provides that the consideration of object of an agreement is lawful, unless it is forbidden by law or is of such a nature that if permitted, it would defeat the provisions of any law or is fraudulent ; or involves or implies injury to the person or property of another ; or the Court regards it as immoral, or opposed to. public policy. 1n each of these cases, the consideration or object of an agreement is said to be unlawful. Every agreement of which the object or consideration is unlawful is void. There is, however, nothing on record to indicate that the agreement arrived at by the parties was in any manner the result of fraud. There were six days with the appellant, but be did not take any step to approach the Court and explain that fraud was played on him. The agreement was considered by the appellant illegal simply because, according to him, the provisions of rule 7 of Order XXXII, C.P.C. were not complied with. It was pointed out that no next friend or guardian for the suit could, without the leave of the Court, expressly recorded in the proceedings, enter into any agreement or compromise on behalf of a minor with reference to the suit in which he acts as next friend or guardian. It was next urged that any such agreement, or compromise, as by the parties of the instant case, entered into without the leave of the Court so recorded shall be voidable against all parties other than the minor. There is no cavil at the proposition. Rule 7 definitely prohibits any agreement or compromise without the express leave of the Court but the position is altogether different in matters under ; the Oaths Act (X of 1873). It is laid down in Muhammad Mahmud Chaudhary and others v. Behary Gal Saha and others (A I R 1930 Cal. 463) that the offer of the guardian of a minor defendant on behalf of the minor to abide by the deposition to be given by a plaintiff on a special oath stands on a very different ground from an agreement or compromise contemplated by rule 7 of Order XXXII, and in such a case the minor is bound by the consent of his guardian although given without the leave of the Court provided there is no fraud or gross negligence on the part of the guardian. Similarly in Arif Yazdani and others v. Sheikh Abdus Salam and others (P L D 1957 Lab. 98)) it has been held that rule 7 of Order XXII, C.P.C. forbids the next friend or guardian to enter into any agreement or compromise on behalf of the minor without the express leave of the Court. The Court is expected to consider the interest of the minor. The duty of safeguarding his interests is thrown upon the Court and it is the duty of the Court to watch his interest vigilantly. But at the same time it is held that rule I of Order XXIII empowers the plaintiff to withdraw his suit or abandon part of his claim as against all or any of the defendants. And it does not require the permission of the Court. This order does not cast any duty on the Court to consider the interests of the minor plaintiff before allowing withdrawal of the suit. Although there is no statutory provision requiring the Court to watch the interests of the minor plaintiffs in such matters, but the principle is, well recognised and is based on general principles of equity, justice and good conscience that no ac; can be done affecting the person, property or estate of a minor without the express or implied direction of the Court.

6. The instant case rests on better footings. Here the offer was not made by any of the minors, but by the plaintiff who, being a competent person to withdraw the instant appeal and the ,one filed before the learned. Additional District Judge, was willing to do so if Rahmat Ali who happened to be natural guardian of the minor swore on the Holy Book that the plaintiff‑appellant had sold the house in dispute with consideration without a stipulation to re-purchase it. This offer made voluntarily was at least binding on the appellant an if acted upon was necessarily to result in the withdrawal of the appeal and nothing beyond that. The swearing‑in of the special oath or its refusal was in both cases not likely to affect the better interests of the minor. The permission of the Court was in the circumstances no" necessary.

7. It was again urged that the offer was retracted by the appellant before Rahmat Ali had actually come to the Court to take the special oath. There is only an F.I.R. on which reliance has been placed, but that document does not give an indication of this type. The appellant had at least six clear days with him to express before the Court his intention to resile from his offer and to avoid the effect of any statement that might have been made by Rahmat Ali. As a matter of fact the binding effect of the offer was not between the appellant, and Rahmat Ali but between the appellant and the respondents. His offer was accepted by the respondents, and the contract, if any was complete. There is not section in the Oath 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. The question must therefore be decided on general principles of law. In the circumstances, when the statement on oath was for the satisfaction of the plaintiff‑appellant' and he had offered to withdraw his appeal in the event of Rahmat Ali taking an oath, the question of his retraction did . not arise. It was therefore wrong to say that the appellant was no more bound by what he had offered with his free will. It is observed in Saleem Ahmad v. Khushi Muhammad (1974 S C M R 224) that! the defendant, during progress of the suit, once agreeing to the suit beings decreed in case the plaintiff made oath on Holy Quran disowning pay ment to him of advance money, could not later file an application resiling from his solemn offer, especially when the plaintiff, before orders could be passed on the application, had taken oath given to him by defendant himself and trial Court had decreed' the suit. It is thus evident that the offer by a party to a suit as to being bound by a statement on oath of his opponent on being accepted by the opponent, is in the nature of a binding agreement. The person who makes the offer cannot, therefore, resile from the contract.

8. The question whether the appellant authority acting under the West Pakistan Urban Rent Restriction Ordinance (VI of 1959) being a mere persona designate could record the statement on special oath and bind the parties of another proceeding like the instant regular second appeal. It is held in Jamal Din v. Haji Muhammad Aslam (P L D 1965 Lah. 503) that it seems anomalous to hold that whereas section 4 of the Oaths Act gives the authority to all Courts and persons having by law or consent of parties authority to receive evidence to administer oaths, section 8 confines that authority merely to civil Courts set up under the Code of Civil Procedure to tender such oaths, depriving all the other persons of this authority, although they have the powers to receive evidence and to administer justice and are thus competent to administer oaths under section 4 of the Oaths Act. It was observed that the legislature has employed the word "Court" in section 8 of the Oaths Act in a wide and comprehensive sense as envisaged in section 4 of the Oaths Act, and defined in section 3 of the Evidence Act including all Courts and persons having the authority to receive evidence. It was, therefore, redundant to add the words "other persons authorised to receive evidence" in section 8, as all such persons, must be deemed to be included in the word "Court" as employed in that section. It is further held that the proceedings of the Rent Controller his decision on deposition c; such witness pursuant to affirmation and agreement of parties that they would be bound by his statement are valid and not without jurisdiction] According to Section 11 of the Oaths Act, if oath is taken in terms of the' form suggested by the person to be bound, then oath taken as such is conclusive evidence against him and order or decree, as the case may be, can be passed against him on the basis thereof. '

9. For the foregoing reasons it is not correct to rely on Ghinoo Ram v. Kanhya (A I R 1957 Him. Pra. 35) holding that special oath is conclusive proof of specific matter, but no evidence in other respects. It was observed in that deci sion that the primary meaning of section 11 was that evidence given in any proceeding in which challenge has been made on oath had been taken would be in that proceedings conclusive proof of the matter stated. it could not automatically be evidence at all except in the proceedings in which it is actually being received. There is no force in the submission inasmuch as the circumstances in the instance case are different. It was agreed to by the appellant before the learned Additional District Judge that if Rahmat Ali took an oath on the Holy Quran that the property in dispute (before the Rent Controller and the same in the instant suit) was old for value with no stipulation entitling the appellant to purchase it back, then his appeal (before the learned appellate authority) be dismiss ed. He also offered that in that event he would withdraw his appeal before the High Court (namely the instant R S A 360 of 19741. That being so, the offer did only extend to the appeal before the learned appeal late authority but also to this appeal, and the appellant is thus estopped, now from asserting otherwise. 1t is on record that Rahmat Ali in pursuance of the offer made by the appellant did make a categorical state ment and the end result would be that both the appeals including the instant appeal also stand dismissed as withdrawn. The application C. M. No. 4839/C‑80 is allowed and in the light of the statement made by the appellant, this appeal is dismissed as withdrawn, however, with no order as to costs. M. Y H. Appeal dismissed.