P L D 1986 Lahore 66 (PLP)

‑‑‑ S. 115‑Revisional jurisdiction‑Exercise of‑Where order of First Appellate Court was lawful, proper exercise of discretion, held, would not warrant interference in revisional jurisdiction by High Court. Mushtaq Raj for Petitioner. This civil revision filed under section 115, C. P. C. is directed against the order of the learned Additional District Judge, Gujranwala dated 4‑12‑19114 dismissing the petitioner's appeal on the basis of oath proceedings.

2. Facts relevant for the disposal of this revision petition, briefly stated, are that the petitioner brought a suit for. Specific Performance of an agreement, to sell the property in dispute on 15‑11‑1977. The suit was contested by the respondents and eventually dismissed for want of proof on 18‑7‑1983. Petitioner preferred an . appeal which came up for hearing before the Additional District Judge, Gujranwala. It was fixed for arguments on 4‑12‑1984 when the petitioner offered to get his appeal decided in accordance with the statement of respondent No. 2 to be made on special oath. Statement of the petitioner offering the special oath is as follows :‑ Respondent No. 2 accepted the petitioner's offer by making ‑the following statement :‑ Respondent No. 2 then made the following statement on oath on Holy Qur'an.

3. It appears that respondent No. 2 after performing the ablu tion took the Holy Qur'an in his hands and was about to take the proposed oath, when the petitioner resiled from' his offer/statement to abide by the oath of respondent No.

2. He also refused to sign his statement whereby he had offered special oath to respondent No.

2. Learned Additional District Judge, however, held the petitioner bound by the statement of respondent No. 2 taken on special oath and proceed to dismiss the petitioner's appeal vide order dated 4‑12‑1984. Order of the learned Additional District Judge is a short one which may be reproduced in extenso :‑

4. Learned counsel appearing in support of this petition has firstly contended that the petitioner never offered to have his appeal decided on special oath of respondent No. 2 nor did be make any statement to that effect. Learned counsel heavily relied on the tact that the petitioner did not sign the statement said to have been made by him. I am afraid, I cannot accept this contention for more than one reason. The submission made by the learned counsel is clearly against the record. Proceeding recorded on the tile of the lower appellate Court show that the ‑petitioner wanted to make a statement. His statement was then recorded in the presence of his counsel and the statement was duly signed by the learned Additional District Judge. Learned counsel appearing for the petitioner is also shown to have owned before the learned Additional District Judge that the petitioner had himself offered that if the respondent made a statement, on oath on Holy Qur'an, his appeal be dismissed but he had now resiled from that offer. It may be pertinently stated that I asked the learned counsel for the petitioner if he could produce the affidavit of the learned counsel who appeared for the petitioner before the learned Additional District Judge denying the statement attributed to him in the impugned) order but the learned counsel expressed his inability to do so. I am, there fore, quite satisfied that the petitioner had made the statement offering to get his appeal decided on the special oath of respondent No. 2 which offer, was accepted by the latter.

5. It was next submitted by the learned counsel for the petitioner that the petitioner having resiled from his offer before the respondent had actually taken the proposed oath, the agreement. if any, to have the appeal decided on the special oath of respondent No. 2 stood terminated and as such the petitioner's appeal could not have been dismissed on the basis of the oath taken by respondent No.

2. Argument of the learned counsel was that it is available to a party offering to be bound by the oath of the opposite party to resile from the offer before the opposite party actually takes the proposed oath and on such resiling, the agreement comes to an end. Reliance for this proposition was placed on Rup Singh Nayal v. Messrs Arjun Sen (A I R 1935 All. 276). In the precedent case, it was held that where a party offering to be bound by the oath of the other party resiles from such offer before the statement on oath has been made by the other party, the agreement terminates and thereafter, case cannot be decided on oath. It may be pointed out that the case relied upon by learned counsel is a Single Bench Judgment which has been overruled by a Full Bench of Allahabad High Court in Saheb Ram v. Ram Newaz and others (A I R 1952 All. 882). Question before the Full Bench was "whether a party who offers himself to be bound by the statement of any of the opposite parties or of a witness under section 8, ' Oaths Act (X of 1873), can resile from such an offer after the other party or‑the witness has agreed to make such an oath or affirmation but before such oath or affirmation had been actually administered'" The question was answered in the negative and it was held that where a party offers to be bound by the statement of any of the opposite parties under section 9, Oaths Act, he cannot resile from such an offer after the other party axis agreed to make such oath, unless there be sufficient cause to the satisfaction of the Court for allowing the offerer to resile and that the discretion vested in the Court under. section 10 has to be exercised according to the justice of the case. It was, inter alia, observed that when a party offers to be bound by a special oath to be taken by the other party and the latter accepts the offer, a completed agreement comes into being though no oath is taken. Similar view was taken in Allah Rakha v. Punnun (A I R 1941 Lah.173), and it was, held that the offer by a party to a suit to be bound by a statement on oath of his opponent on being accepted by the opponent is in the nature of a binding contract. The person who makes the offer cannot resile from the contract. Question whether a party offering to abide by a statement on oath of the opposite party cannot resile from the agreement if the latter is willing and ready to perform his part of the agreement came up for consideration in Mst. Asifa Sultana v. Honest Traders (P L D 1970 S C 331), and their Lordships of the Supreme Court after referring to the case‑law on the subject and the relevant provisions of the Oaths Act observed that there being no provision in the Oaths Act dealing, with the question under consideration it is to be decided on general principles of law. It was then held by their Lordships that "the offer to abide by the oath of the opposite‑party and its acceptance by the other party was in the nature of an agreement and the question whether the party who offered can resile from it depends on the facts and the circumstances of each case." Reference may also be usefully made to the following observations in Mal Din v. Chiragh Din (P L D 1972 Kar. 622): "But an agreement made in Court to be bound by evidence given on special oath is a settlement to which the Court is also a party, therefore, such an agreement is not one of those agreements which a party may keep or break as it liked subject only to a claim from the aggrieved party for damages. To allow a party to resile, without adequate reason, from an undertaking of this nature would amount to allow him to play the game of hide and seek with the other party and even to abuse the process of the Court."

6. Respectfully following the aforementioned dicta I hold that it is not open to a party offering to be bound by the oath of the opposite party to resile from it at his own pleasure particularly when the other party has accepted the oath and is prepared to take the proposed oath. In such a situation, it rests in the discretion of the Court to allow or not to allow the offerer to resile from his offer. It is now to be seen whether the learned Additional District Judge was justified in enforcing the agreement arrived at between the parties to Court to get the appeal decided on the statement of respondent No. 2 made on oath. On the facts found by the learned Additional District Judge, petitioner resiled from his offer not only after the respondent had accepted the same but when he actually took the Holy Qur'an in his hands and was about to take the propose oath. Keeping in view the sanctity of the proceedings taken and there being no reason whatsoever for the petitioner to go back on his solemn undertaking learned Additional District Judge was perfectly justified in dismissing the petitioner's appeal in view of the statement of the respondent made on special oath duly offered by the petitioner himself. For the foregoing reasons, impugned order of the learned Additional District Judge having been passed to lawful and proper exercise of discretion does not warrant any interference in revisional jurisdiction of the Court. Revision petition having no merit is accordingly dismissed fir liming. A. A. Revision dismissed.