1986 PLP 2399 (MLD)

‑‑S.12(2)‑‑Oaths Act (IX of 1873), Ss.3 & 4‑‑Consent decree passed on basis of Special Oath‑‑Validity of‑‑Consent decree passed by Trial Court in favour of plaintiff /respondent on basis of special oath taken by him in reply to defendant/petitioner's appeal, held, could not be challenged by defendant by filing application before Trial Court under S.12(2) of Civil Procedure Code (V of 1908)‑‑Plea that defendant at time of making offer of oath was mentally unsound repelled because such plea of being of unsound mind at relevant time admittedly was never raised earlier‑‑In case petitioner/ defendant had made offer of oath which was accepted by plaintiff /respondent, it could not be said that such respondent had committed fraud with petitioner. Malik Allah Yar Khan for Petitioner. Kh. Saeed‑uz‑Zafar for Respondent No.1. This writ petition is directed against order, dated 13‑4‑1986 of the learned District Judge, Sargodha whereby he dismissed petitioner's revision petition and maintained order, dated 25‑2‑1986 of the learned Civil Judge, Sargodha, dismissing his application under section 12(2), C.P.C.

2. Respondent No.1, filed a suit for permanent injunction, against the petitioner restraining him from interference in his possession, of the disputed land. Alongwith the suit he filed an application for temporary injunction. The suit was contested by the petitioner. It was alleged that the respondent was not in possession of the suit land as lessee under the State. The case was fixed for arguments on the stay application when the petitioner himself made offer to the respondent that if the latter states on special oath that he was in cultivating possession of the suit land his suit be decreed. The respondent accepted the offer and took special oath whereupon the learned trial Court decreed the suit on 27‑5‑1985. The petitioner unsuccessfully challenged that decree in appeal. Thereafter he filed an application under section 12 (2), C.P.C., against the judgment and decree, dated 27‑5‑1958. The learned Civil Judge dismissed the application and that order was maintained in revision before the learned District Judge, Sargodha. Hence, this petition.

3. Learned counsel for the petitioner contended that no inquiry was made into the allegations and the application was summarily dismissed by the learned trial Judge. It was also contended that petitioner was mentally unsound. He was incapable of entering into a valid contract with the contesting‑respondent.

4. Learned counsel for the petitioner admitted that he did not challenge the judgment and decree passed in appeal and called in question only trial Court's judgment and decree. The petitioner did not disclose to his counsel or the Court that he was mentally unfit to make offer to the respondent for Settlement of the suit on special oath. If the petitioner had made offer which was accepted by the respondent, it cannot be said that respondent committed fraud with the petitioner. The petitioner never disclosed or pleaded that he was mentally ill. It appears an afterthought. The consent decree between the parties was not appealable, after the dismissal of appeal the petitioner, vainly moved application under section 12 (2) , C.P.C. It was not supported by affidavit of the counsel to show that the petitioner was mentally unsound when he made offer to have the decision of the suit on oath. The petitioner's counsel rather had endorsed his offer.

5. In these circumstances, I find no force in this petition and dismiss it in limine. H.B.T.????????????????????????????????????????????????????????????????????????????????????????????????? Petition dismissed.