1974 PLP 224 (SCMR)

HAMOODUR RAHMAN, C. J.‑This is a petition for special leave to appeal from the judgment and order of a learned Single Judge of the Lahore High Court dismissing. a civil revision petition. It appears that in a suit for specific performance of a contract of sale, filed by the respondent herein, alleging that the petitioner had executed an agreement to sell his lands for a sum of Rs. 38,000 and out of this amount he had actually received Rs. 5,500 in advance, the petitioner admitted the execution of the agreement but denied that he had received any amount in advance. Issues were struck and evidence was taken. After the close of the plaintiff's case, the petitioner produced four witnesses. Thereafter, the plaintiff went into the box in rebuttal, but before his evidence could be concluded the petitioner made a statement on oath proposing that if Wali Mohammad, the brother of the plaintiff, took an oath on the Holy Quran that a sum of Rs. 5,50;) was paid to the petitioner in advance by the plaintiff Khushi Mohammad then he would agree to a decree being passed in favour of the respondent‑plaintiff. As against this, the plaintiff made a counter‑statement agreeing to the proposal arid further agreeing that if his brother Wali Mohammad did not take the oath the suit may be dismissed. Wali Mohammad, who was present in Court, agreed to take the oath. The taking of oath was, however, at the request of the respondent, put off tee the next day. On the next day, i.e., the 10th of December 1969, the petitioner put in an application saying that he had come to learn from some inhabitants of the village that Wali Mohammad was a habitual her and was accustomed to taking false oaths. Therefore, the oath should be administered to Ghulam Sarwar, Lambardar, or Rehmat Ali, contractor, of the same village arid not to Wali Mohammad. Before any final order was passed on this application, the petitioner gave a copy of the Holy Quran to Wali Mohammad who took the stipulated oath, After the oath was taken, the learned counsel for the petitioner appeared on the scene and wanted to press the applica tion but the Court refused him permission to do so on the ground that after the oath had been taken the application had become infructuous. According to the Oaths Act a decree for specific performance was they, racked subject to the payment of Rs. 32,500, The petitioner was also saddled with cost even though his counsel had prayed that costs should not be awarded against him. This was the order that was sought to be challenged in the High Court in revision petition, on the ground that the trial Court was wrong in refusing permission to tie petitioner to resile from his statement before the administration o‑f oath. It is also contended on behalf of the petitioner that In spite of the oath the Court was still under a duty to consider whether a decree for specific performance could be passed under the Specific Relief on the ground that it is a discretionary decree. The High Court rejected both the contentions and held that there was no ground in law or in equity on which the petitioner could claim the right of resiling from the solemn agreement which was entered into by hire. Such an agreement was in the nature of a contract and one of the contracting parties could not be allowed to back out of it unless the contract was void or had become frustrated. 'None of these eventualities had occurred in this case. Indeed even the attempt to resile was only a half‑hearted attempt, for even after filing the application the petitioner himself offered the Holy Quran to Wali Mohammad and the latter took the oath. The petitioner now seeks special leave to appeal and it is contended on his behalf that the High Court was wrong in taking the view that the petitioner could not resile from his statement. In support of this contention reliance is sought to be placed on a decision of this Court in the case of Mohammad Akbar v. Mohammad Aslam (PLD1970SC241). This case does not, however, support the petitioner's contention. All that is said there is that such an agreement though not an adjustment of the suit under O. XXIII, rule 3 of the Code of Civil Procedure, is in the nature of a contract and whether the contracting parties should be bound to that contract will depend on the facts and circumstances of each case. This view was further clarified and confirmed in the case of Mst. Asifa Sultana v. Honest Traders (PLD1970SC331). Applying this principle to the facts of the present case we have no hesitation in holding that the High Court was right in taking the view that the trial Court acted on correct principles in deciding the suit on the basis of the special oath. Lastly; the learned counsel sought to contend that since the agreement for sale was subject to the condition that the land, which was evacuee should be first confirmed in favour of the petitioner, no decree for specific performance could be passed until it had been established that the land was confirmed. There is no substance in this contention either, because under section 16 of the Displaced Persons (Land Settlement) Act, 1958, which came into force in 1966, all persons permanently settled on evacuee lands were given full proprietary rights and the lands became vested in them. Therefore, no further confirmation was necessary. The petitioner was the full owner of the land on the date when the suit for specific performance was filed. This petition is without any merits and is, accordingly, dismissed. Petition dismissed.