P L D 2016 Lahore 428 (PLP)

CH. MUHAMMAD MASOOD JAHANGIR, J.

By filing he instant Civil Revision the petitioner has challenged the order dated 10.2.2010 passed by the learned trial court whereby the suit for declaration filed by the petitioner against his real son Nasir Mehmood, respondent on the basis of special oath administered by the respondent as per offer made by the petitioner has been dismissed as well as the judgment and decree dated 7.4.2010 passed by the learned Additional District Judge, Chinot, whereby the appeal filed by the petitioner has also been dismissed.

2. Heard the learned counsel for the petitioner and perused the record

3. A perusal of order sheet maintained by the learned trial court reflects that on 10.2.2010, the petitioner-plaintiff appeared before the learned trial court and made an offer for decision of the suit on the special oath of the respondent-defendant on Holy Quran, which statement was reduced into writing by the learned trial court. The said statement was duly signed by the petitioner/plaintiff on the margin thereof. The respondent/defendant while present in the court along with his counsel in response to the said offer administered special oath on Holy Quran and his statement was also recorded by the learned trial court. In the light of said statements got recorded by both the parties, the learned trial court proceeded to dismiss the suit filed by the petitioner-plaintiff on the same day. From the perusal of the proceedings conducted on 10.2.2010 and reduced into writing by the learned trial court, it can safely be inferred that the offer for decision of the suit on the special oath administered by the respondent-defendant was duly made by the plaintiff- petitioner out of his free will and consent. In this regard sections 8 to 11 of Oaths Act, 1873 are relevant which are reproduced hereunder:- "

8. Power of Court to tender certain oaths.- If any party to, or witness in, any judicial proceeding offers to give evidence on oath or solemn affirmation in any form common amongst, or held binding by persons of the race or persuasion to which he belongs and not repugnant to justice or decency and purporting to affect any third person the Court may, if it thinks fit, notwithstanding person, anything herein-before contained, tender such oath or affirmation to him.

9. Court may ask party or witness whether he will make oath proposed by opposite Party.- 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 in court solely for the purpose of answering such question.

10. Administration of Oath if accepted.-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 authorize him to take the evidence of the person to be sworn, or affirmed and return it to the Court.

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

4. The special oath administered under Oaths Act, 1873 is different to the oath provided by Article 163 of Qanun-e-Shahadat Order 1984. For ready reference the said provision is reproduced hereunder:- "

163. Acceptance or denial of claim on oath: (1) When the plaintiff takes oath in support of his claim, the Court shall, on the application of the plaintiff, call upon the defendant to deny the claim on oath. (2) The Court may pass such orders as to costs and other matters as it may deem fit. (3) Nothing in this Article applies to laws relating to the enforcement of Hudood or other criminal cases." The bare perusal of the said provisions of law reflects that an initiative has to be taken by plaintiff who's first stance is to take an oath in support of his lis whereafter on his request the court has to call upon the other side to refute the said statement of the plaintiff on oath and the Court is bound to pass any order in the light of the said statements of the parties. Both the provisions as discussed supra i.e. Article 163 of Qanun-e-Shahadat Order and Sections 8 to 11 of Oaths Act, 1873 are opposite to each other. In the present case the plaintiff-respondent did not make an offer for administering special oath as provided in Article 163 of Qanun-e-Shahadat Order rather the respondent/defendant administered oath in the light of a mutual agreement of the parties and the said mutual consent is the basic theme as provided in the above referred provisions of Oaths Act 1873. The respondent/defendant after acceptance of the offer made by the petitioner/plaintiff administered special oath and to my mind the petitioner/plaintiff being bound by his words cannot reopen the matter. The mere contention urged by learned counsel that the petitioner-plaintiff could not understand the consequences of the offer so made is no ground to retract from the offer, which has already been acted upon. Even otherwise, the sanctity is attached to the judicial proceedings. The learned trial court recorded separate statements of the parties whereby the petitioner/plaintiff had made an offer to the respondent-defendant for administering special oath regarding the fact which he narrated in his statement, which was duly signed by him and it cannot be considered that such offer was not made by him of his own free will and volition. Thereafter the statement of respondent/defendant was recorded, who on the offer made by the petitioner/plaintiff administered special oath on Holy Quran. The said proceedings must have taken a reasonable time and it cannot be presumed that the learned trial court acted in a hasty manner for decision of the suit filed by the petitioner-plaintiff.

5. The petitioner/plaintiff after accomplishment of the process in response to the offer made by him could not resile therefrom rather he waited for the acceptance of the said offer and it was not only accepted rather in response thereto the respondent/defendant administered the special oath as desired by the petitioner/plaintiff in his statement. Being Muslims our belief should be that the decision of a case on the basis of oath has the more fruits as compared to any other form of decision, if the oath has been administered in accordance with law. Once the offer made by one party has been accepted by the other party and the same is acted upon, they cannot wriggle out from the output thereof as such offer and acceptance would be an agreement of binding nature. The principle of approbate and reprobate would be applicable with full force and according to such princip1e the petitioner/plaintiff is not obliged to challenge the validity of the decision of the suit on the basis of special oath administered by the respondent.

6. The learned counsel for the petitioner has failed to point out any material illegality or irregularity besides any jurisdictional defect to have been committed by the learned courts below in the impugned order/judgment and decree to warrant interferences by this court in the exercise of revisional, jurisdiction. The Civil Revision being devoid of any merit is dismissed in limine. SL/M-106/L Petition dismissed