1996 SCMR 108 (PLP)

Abdul Qadir Khattak, Advocate Supreme Court for Appellants (in all three Appeals). Jehanzeb Rahim, Advocate Supreme Court for Respondents. Date of hearing: 16th July, 1995. FAZAL ILAHI KHAN, J.‑‑‑These three civil appeals raised of the pre‑emption suits brought by the appellant against the respondents in respect of the sale of the suit house bearing Survey No.766 C (24/16 to 36/16c) situated in Bannu City through consent decree dated 14‑1‑1984 in favour of the appellant and others from Atta Ullah Khan. Appellant pre‑empted the sale by filing several suits in the Court of Senior Civil Judge, Bannu against the respondents on 11‑12‑1984 in exercise of his superior right of pre‑emption. The sale consideration mentioned in the consent decree was to be fictitious and inflated in order to defeat the superior right of pre‑emption of the appellant/plaintiff. These suits were contested by the respondents/vendees in their written statements, which gave rise to the framing of as many as 9 issues. During the pendency of the suits the general attorney of respondents/vendees made an offer to the appellant that if he takes oath on the holy Qur'an that the suit brought was not Benami and that the pre‑emption amount has not been deposited by the beneficiary namely Samiullah Khan, the pre‑emption suits be decreed. The offer was accepted and on completion of the requisite Oath administered in the Court the present suits were decreed by the learned Senior Civil Judge, Bannu on 3‑7‑1988. Respondents/vendees appealed against the judgments and decrees in the Court of Additional District Judge, Bannu, on the ground that the general power of attorney executed by them in favour of the attorney did not authorise him to offer oath to the appellant/plaintiff. Their appeals were dismissed on, 8‑1‑1989. The respondents then challenged the judgments and decrees in Civil Revision Petitions filed in the Peshawar High Court. The Honourable Judge in Chamber was pleased to accept the revision petitions on 11‑11‑1990 and remanded the case to Additional District Judge for resolving the entire controversy raised, with the observation that the Court shall examine each case to find out whether the attorney was so empowered to do so? Furthermore, the learned Appellate Court should also determine the impact of the role of the counsel of both the parties during the alleged offer and acceptance of procedure under the. Oaths Act".

2. After the remand the learned Additional District Judge, Bannu on reconsideration found that the Oath offered by the attorney has been endorsed by the learned counsel for the vendees/respondents, dismissed the appeals on 5‑11‑1990. The respondents then approached the learned Peshawar High Court in Revision Petitions Nos.23, 24 and 25 of 1991 involving identical question of fact and law. The Hon'ble High Court accepted the revision petitions, set aside the judgments and decrees of the Courts below and dismissed the appellant's suits for pre‑emption. Leave to appeal was granted against the judgment of the learned High Court to consider the contentions of the learned counsel that the decree passed on Oath taken on Holy Qur'an after the offer by the A respondents and acceptance by the appellant and decree passed thereafter and affirmed in appeal, the learned High Court was legally not justified in revisional jurisdiction to have interfered with also on additional ground of lack of `Talabs' on facts and circumstances of the case.

3. After hearing the learned counsel for the parties on the question of fact and law agitated before the Courts below it would be helpful for resolving the present dispute to refer to the order‑sheet dated 3‑7‑1988, the date on which respondents/defendants made the offer of Oath and appellant/plaintiff accepted the same which reads as under:

4. The statement referred to in the order‑sheet is in following words:‑ The plaintiff is given an offer that if he takes oath on the Holy Qur'an that the pre‑emption money has not been deposited by Samiullah Khan and that the suit of the plaintiff is not `Benami' and that he has not pre‑empted the suit property for Samiullah Khan, then in that case the decree may be passed in favour of the plaintiff. I am prepared to take the said oath. Note.‑‑The plaintiff has taken the said oath to satisfaction of the defendant in presence of the defendants."

5. The above statement is signed by the appellant/plaintiff, Mr. Adam Khan his counsel, as well as Bakht Baz attorney of the respondents/vendees and by Haji Dilawar, Advocate counsel for the respondents/vendees. The contention of the learned counsel for the respondents that Bakht Baz General Attorney of the defendants had no authority to make an offer and that the signature of Dilawar Khan was immaterial as he has simply identified Bakht Baz Khan, is misconceived. In the order‑sheet referred to above parties' presence is recorded and it is specifically mentioned that the offer was made by the defendant/vendees. It is nowhere recorded that the offer was made by the attorney. There is also nothing on the record to show that Haji Dilawar counsel for the defendant/vendees simply identified Bakht Baz Khan rather both the learned counsel have singed these statements as Advocate and counsel for the respective parties. The power of attorney in favour of Dilawar Khan has been placed on file, which is duly signed by the respondents/vendees, whereby he has been authorised to get the case decided on Oath. There is yet another aspect of the case i.e. Bakht Baz Khan the general attorney of the respondent/vendees was none else but the real brother of Rasta Baz respondent/vendees. The learned trial Judge as well as the learned Additional District Judge have on such evidence concurrently held that the offer was competently made in unambiguous words which was accepted by the appellant/plaintiff and that such oath was taken and completed in the Court. The concurrent finding was set aside on misreading of evidence. It may be S pointed out that in cases in which a dispute is resolved in pursuance of an offer of Oath made by one party and accepted by the other and the Oath is completed on the basis of such offer and acceptance culminating in a decree,. such decree shall not be lightly interfered with and set aside on flimsy and technical grounds in view of the sanctity attached to Oath on Holy Qur'an. Accordingly, the fording of the learned High Court in this respect is set aside and those of the two Courts below restored.

6. The objection with regard to the absence of `Talabs' in the present cases have also got no substance in view of the agreement to decide the matter on Oath whereby they waived all other objections including that of `Talabs' raised in the pleadings.. For the reasons stated above we accept these appeals, set aside the judgments and decrees of the learned High Court and restore those of the Courts below, with no order as to costs. AA./N‑452/S Appeals accepted.